Terms-of-Use

United States – Terms and Conditions

 

Updated: November 20, 2022

 

Gesture Consumers

 

PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND GESTURE US, INC., A DELAWARE CORPORATION, AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES, (COLLECTIVELY, “GESTURE,” “WE,” “US,” OR “OUR”).

 

SECTION 14 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 14 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 14(G); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

 

1. Acceptance of this Agreement  

 

Gesture is considered an online marketplace that provides a connection, using web-based and/or mobile technology that connects you and other consumers, merchants, vendors, and/or other different types of businesses and independent delivery contractors (“Contractors”).  Gestures technology software permits consumers to place orders for goods and/or products from various merchants, vendors, and businesses, for delivery (the “Technology”, the “Software”). Once a delivery order is placed by you, the Software dispatches/notifies a Contractor/s that a delivery opportunity is available and the Software facilitates completion of the delivery to the intended recipient. You understand, acknowledge and agree that Gesture is not a restaurant, merchant, vendor, delivery service, or food preparation business of any kind.

 

If you visit and access any of our websites located at https://gesture.vip and/or https://gesture.biz, install and/or use our Gesture mobile application, install or use any other software supplied by Gesture including our G-Runner Mobile Application, or access any information, function, or service available or enabled by Gesture (each, a “Service” and collectively, the “Services”), or complete the Gesture account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:

 

(a) you have read, understand, acknowledge and agree to be bound by this Agreement;

 

(b) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement; and

 

(c) you are of the legal age in the jurisdiction and/or state in which you reside to form a binding contract with Gesture.

 

The terms “User” and “Users” refer to all persons and/or individuals who access or use the Gesture Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use Gestures Services or Products.

 

2. Modifications  

 

Gesture reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

 

3. Your Commitment 

 

In return for our commitment to provide the Service, we require you to make the commitments stated below to Gesture and its affiliates and the Gesture community.

 

Who Can Use Gesture. We want our Service to be as fun and inclusive as possible, however we also want it to be safe, secure, and in accordance with the laws of the land. Therefore, we need you to commit to a few rules and restrictions in order to be part of the Gesture community.

 

You must be at least 13 years old, and at least 21 years old to send alcohol on Gesture.

 

We must not have previously disabled your account for violation of law or any of our policies.

 

You must not be a convicted sex offender.

 

You must not be prohibited from receiving any aspect of our Service under applicable laws or engaging in payments related Services if you are on an applicable denied party listing.

 

How You Can’t Use Gesture. Providing a safe and open platform for a diverse community requires that we all do our part in making this happen.

 

You cannot and will not impersonate others or provide inaccurate information.

You don’t have to disclose your identity on Gesture, but you must provide us with accurate and recent up to date information (including registration information), which may include providing personal data such as phone number and/or email address. Also, you may not and/or will not impersonate someone or something you are not, and you cannot create an account for someone else unless you have their express permission.

 

You cannot and will not do anything that is unlawful, misleading, ill-founded or fraudulent or for an illegal or unauthorized purpose.

 

You cannot and will not violate (or help or encourage others to violate) these Terms or our policies.

If you post any branded content, you must comply with our Branded Content Policies, which require you to use our branded content tool. You can report any misconduct or suspected violations at violations@gesture.vip

 

You cannot and will not do anything to interfere with or impair the intended operation of the Service.

This includes misusing any reporting, dispute, or appeals channel, such as by making fraudulent or groundless reports or appeals.

 

You cannot and will not attempt to create accounts or access or collect information in unauthorized ways.

This includes creating accounts or collecting information in an automated way without the express permission of Gesture.

 

You cannot and will not sell, license, or purchase any account or data obtained from us or our Service.

This includes attempts to buy, sell, or transfer any aspect of your account (including your username); solicit, collect, or use login credentials or badges or Gesture Cash or Promo Codes of other users; or request or collect Gesture usernames, passwords, or misappropriate access tokens.

 

You cannot and will not  post someone else’s private or confidential information without their express permission or do anything that violates someone else’s rights, including intellectual property rights (e.g., copyright infringement, trademark infringement, counterfeit, or pirated products).

You may use someone else’s works under exceptions or limitations to copyright and related rights under applicable law. You represent you own or have obtained all necessary rights to the content photos you use and choose to share. You can report any misconduct or suspected violations at violations@gesture.vip

 

You cannot and will not modify, translate, create derivative works of, or reverse engineer our products or their components.

 

You cannot and will not use a domain name or URL in your username or any other form of website or mobile application without our prior written consent.

 

Permissions You Give to Us. As part of this agreement, you also give us the permissions we need to provide the Service.

 

We do not claim ownership of your photos or content, but you do indeed grant Gesture and any of its affiliates a license to use it how we please.  

Nothing is changing about your rights in your content. We do not claim ownership of your content that you include with the gift you send, or use to post on our G-Feed on or through the Service and you are free to share your content with anyone else, wherever you want. However, we do need certain legal permissions from you (known as a “license”) to provide the some of our services. When you share, post, or choose to make your photos and messages and/or content that is covered by intellectual property rights (such as photos or videos or messages or signatures) on or in connection with our service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-license-able, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This license will end when your content is deleted from our systems. You can make your content private individually or all at once by adjusting the settings in your G-Feed account. You may request a deletion of your account at anytime by emailing accountdeletion@gesture.vip

 

Permission to send notification text and/or sms messages to recipients on your behalf regarding order status and other order related updates. When you sign up for Gestures services and choose to transact on Gesture in the form of sending or receiving a gift, you assume full responsibility when providing sender or recipient data such as phone number and/or email addresses so that Gesture can notify the recipient of their order information and/or order status and/or delivery information.

 

Permission to use your username, profile picture, and information about your relationships and actions with accounts, ads, and sponsored content.

You give us permission to show your username, profile picture, and information about your actions (such as likes) or relationships (such as connections) next to or in connection with accounts, ads, offers, and other sponsored content that you follow or engage with that are displayed on Gesture Products or platforms, without any compensation to you. For example, we may show that you liked a shared post in our G-Feed created by a brand, creator or influencer that paid us to display its ads on Gestures G-Feed. As with any other actions on any other content and follows of other accounts, actions on sponsored content and follows of sponsored accounts can be seen only by people who have permission to see that content. We will also respect your ad settings.

 

You agree that we can download and install updates to the Service on your device.

 

Additional Rights We Retain

 

Social Gifting Handles: If you select a username or similar identifier for your Gesture account, we reserve the right to change it if we believe it is appropriate or necessary (for example, if it infringes on and/or violates a copyright, someone’s intellectual property or impersonates another user or brand or company).

 

You can only use our intellectual property and trademarks or similar marks as expressly permitted with our prior written permission.

 

If you use content covered by intellectual property rights that we have and make available in our platform and service (for example, images, designs, videos, we provide that you add to content you create or share), we retain all rights to our content (but not yours).

 

You must obtain written permission from Gesture or under an open source license to modify, create derivative works of, decompile, or otherwise attempt to extract source code from us

 

Content Removal and Disabling or Terminating Your Account

 

We can remove any content or information you share on the platform or service if we believe that it violates these Terms of Use, and/or our policies, or we are permitted or required to do so by law. We can refuse to provide or stop providing all or part of the Services to you (including terminating or disabling your access to Gesture Products and Gesture Company Products) immediately to protect our community or services, or if you create risk or legal exposure for us, violate these Terms of Use or our policies, if you repeatedly infringe other people’s intellectual property rights or violate copyright laws, or where we are permitted or required to do so by law. We can also terminate or change the Service, remove or block content or information shared on our platform and service, or stop providing all or part of the service if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts on us. If you believe your account was or has been terminated in error, or you want to disable or permanently delete your account, check out our Help Center. When you request to delete content or your account, the deletion process will automatically begin no more than 30 days after your request. It may take up to 90 days to delete content after the deletion process begins. While the deletion process for such content is being undertaken, the content is no longer visible to other users, but remains subject to these Terms of Use and our Data Policy. After the content is deleted, it may take us up to another 120 days to remove it from backups and disaster recovery systems.

 

Content will not be deleted within 90 days of the account deletion or content deletion process beginning in the following situations:

 

where your content has been used by others in accordance with this license and they have not deleted it (in which case this license will continue to apply until that content is deleted); or

 

where deletion within 90 days is not possible due to technical limitations of our systems, in which case, we will complete the deletion as soon as technically feasible; or

 

where deletion would restrict our ability to:

 

investigate or identify illegal activity or violations of our terms and policies (for example, to identify or investigate misuse of our products or systems);

 

protect the safety and security of our products, systems, and users;

 

comply with a legal obligation, such as the preservation of evidence; or

 

comply with a request of a judicial or administrative authority, law enforcement, or a government agency;

 

in which case, the content will be retained for no longer than is necessary for the purposes for which it has been retained (the exact duration will vary on a case-by-case basis).

 

If you delete or we disable your account, these Terms shall terminate as an agreement between you and us, but this section and the section and section 15 will still apply even after your account is terminated, disabled, or deleted.

 

Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Gesture through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Gesture has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Gesture a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-license-able right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

 

Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Gesture and do not represent the views of Gesture or its affiliates. Gesture shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant or business; (ii) you will not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free gift product items, or other benefits from a Merchant or business; (iv) any Rating or Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your Rating or Review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.

 

4. Additional Rules and Prohibitions

 

Without limiting other rules and prohibitions in this Agreement, by using the Services, you understand, acknowledge and agree that:

 

(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in any type of conduct that harms other Users, Merchants, Vendors, Gesture for Business Companies and/or Clients, Gesture employees, or our community.

 

(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.

 

(c) You will only access the Services using means explicitly and strictly authorized by Gesture.

 

(d) You will not use the Services to cause nuisance, annoyance or inconvenience for Gestures Users, Merchants, Vendors, Gesture for Business Companies and/or Clients, Gesture employees, or our community.

 

(e) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to Merchants, Vendors, Gesture for Business Companies and/or Clients, Gesture employees including Contractor/s, or our community unless Gesture has given you prior consent and/or permission to do so, in which this must be in writing.

 

(f) You will not copy or distribute Gestures Technology and/or Software or any content displayed through the Services, including Vendor and/or Merchant product/s content and reviews, for republication in any format or media.

 

(g) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, non-commercial use.

 

(h) You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.

 

(i) You will keep secure and confidential your account password or any identification (login) credentials we provide you which allows access to the Services.

 

(j) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you understand, acknowledge and agree to provide us with whatever proof of identity we may reasonably request.

 

(k) You will not use the Services in any way that could damage, disable, overburden or impair any Gesture server, or the networks connected to any Gesture server.

 

(l) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Gesture may use to prevent or restrict access to the Services or use of the Services or the content therein.

 

(m) You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Gesture server or the networks connected to any Gesture server.

 

(n) You will not deep-link to our websites or access our websites manually or with any web crawler, robot, spider, extraction software, automated or manual process and/or any device to scrape, replicate, copy, duplicate, index, frame, or monitor any portion of our websites or any content on our websites.

 

(o) You will not scrape or otherwise conduct any systematic retrieval of data or other content from our Technology or Services.

 

(p) You will not try to harm other Users, Gesture, or the Services in any way whatsoever.

 

(q) You will not engage in threatening, harassing, racist, sexist or any other behavior that Gesture deems inappropriate when using the Services.

 

(r) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.

 

(s) You will not abuse our promotional, credit code system (Gesture Cash or G-Cash), including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.

 

(t) You will not attempt to undertake any of the foregoing. In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your Gesture account including any other account/s that are affiliated with Gesture or it’s subsidiaries at our sole discretion.

 

5. Additional Terms and Policies  

 

By using the Services, you understand, acknowledge and agree to be bound by this Agreement and understand, acknowledge and agree to the collection, use, and disclosure of your personal information and any data you submit while using our Software and Service, in accordance with Gestures Privacy Policy, which is incorporated into this Agreement by reference. You also agree to abide by any additional Gesture policies for Users that are published on our website or mobile application.  Certain features of our Services may be subject to additional terms and conditions, which are incorporated within this Agreement by reference.

 

6. Contractors and Merchants Are Independent  

 

You understand and agree that Gesture provides a technology platform connecting you with independent vendor/s or merchant/s provider/s and others that provide the products offered through the Services (“Vendors) (“Merchants”) , and independent third-party contractors who provide delivery services (“Contractors”). You understand, acknowledge and agree that Gesture does not itself prepare baked goods, including any food of any kind, arrange any type of floral decoration, or offer delivery services, and has no responsibility or liability for the acts or omissions of any Merchant, Vendor or any Contractor. Merchant and/or Vendor is the retailer; the services offered by Gesture pursuant to this Agreement do not include any retail services or any preparation services. Gesture is not in the delivery business nor is it a common carrier. Gesture provides a technology and software service platform facilitating the transmission of orders by Users to Merchants or Vendors for delivery by Contractors. Gesture will not assess or guarantee the suitability, legality or ability of any Contractor or Merchant or Vendor. You agree that Gesture is not responsible for the Merchants’ preparation or the safety of any baked goods or any food or whether the photographs or images displayed through the Services accurately reflect the products prepared by the Merchants or Vendors and/or delivered by the Contractor, and does not verify Merchants’ and/or Vendors compliance with applicable laws or regulations. Gesture has no responsibility or liability for acts or omissions by any Merchant, Vendor or Contractor.

 

You understand, acknowledge and agree that the products that you purchase will be prepared by the Merchant or Vendor you have selected, that title to the goods passes from the Merchant or Vendor to you through delivery orders, the Contractor will be directed by your instructions to transport the products to your designated recipient delivery location. You agree that neither the Contractor nor Gesture holds title to or acquires any ownership interest in any goods that you order through the platform or Gesture Services.

 

7. User Account

 

You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Gesture immediately at support@gesture.vip. Gesture will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Gesture or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Gesture has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Gesture has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use the Gesture and/or Gesture for Business services. You agree not to create an account or use the Services if you have been previously removed by Gesture, or if you have been previously banned from use of the Services.

 

8. Communications with Gesture  

 

By creating a Gesture account, you electronically agree to accept and receive communications from Gesture, Contractors, or third parties providing services to Gesture including via email, text message, calls, and push notifications to the cellular telephone number you provided to Gesture. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Gesture, its affiliated companies and/or Contractor, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing Settings in your account. To opt out of receiving promotional text messages from Gesture, you must reply “STOP” from the mobile device receiving the messages. To further clarification,  delivery notification text messages between you and the G-Runners, or any other third party delivery service/s are transactional text messages, not promotional text messages.

 

9. E-SIGN Disclosure  

 

By creating a Gesture account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Gesture at privacy@gesture.vip with “Revoke Electronic Consent” in the subject line. 

 

To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Gesture at privacy@gesture.vip with contact information and your mailing address.

 

10. Intellectual Property Ownership  

 

Gesture alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Gesture. Gesture names, Gesture logos, and the product names associated with the Software and Services are trademarks of Gesture or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.

 

11. Payment Terms  

 

(a) Prices & Charges. You understand that: (a) the prices for products and/or items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold; (b) Gesture has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) Gesture reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in-store totals. In those situations, Gesture reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on Gestures income). In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Gesture reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Gesture or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your Use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.

 

(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Gesture has no obligation to provide refunds or credits, but may grant them, in each case in Gestures sole discretion.

 

(c) Promotional Offers and Credits. Gesture, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Gesture; (iii) are subject to the specific terms that Gesture establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in Gestures Terms and Conditions for Promotional Offers and Credits. Gesture reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Gesture determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Gesture reserves the right to modify or cancel an offer at any time. You agree that we may change Gestures Terms and Conditions for Promotional Offers and Credits at any time. Gesture may also offer gratuitous credits, which can be used for the Services. Any credit issued by Gesture is valid for a certain period specified at the time the credit is issued except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order. Credits issued through a User’s Gesture and Gesture Business account may only be redeemed through that respective platform and/or service/s.

 

(d) Fees for Services. Gesture may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees. Gesture may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.

 

 (e) Referral Program. Under the Referral Program, Gesture offers its registered Users in good standing the opportunity to earn gratuitous Gesture credits (also referred to as promo codes or coupons), as promotional rewards by inviting their eligible friends to register as a new Gesture Users and place their initial order through the Services by using a unique referral ID link (“Personal Link”). For each Qualified Referral (as defined in the Referral Program) generated through a User’s Personal Link, the User may receive a gratuitous credit as specified on Gestures Referral Program page. You agree that we may change the terms and conditions of the Referral Program or terminate the Referral Program at any time. 

 

(f) Gift Cards. Except as provided below, Gift Cards may be redeemable towards eligible orders placed on http://www.gesture.vip (if website ordering is available) or the Gesture Mobile App, in the United States. Gift Cards are made available and provided by Gesture US, Inc. Gift Cards are not redeemable for cash except when required by applicable law. Gift cards are subject to availability.

 

12. Sharing Transactions 

 

We put you in control so that you can decide who can see your Gesture Feed and purchases. Gifts made by new Gesture accounts may be set to public by default. You can change your privacy settings for individual transactions or in your personal G-Feed within the Gesture Mobile App.

 

13. Gesture Guarantee  

 

The Gesture No Hidden Surprise Guarantee includes a Price Guarantee of the price of the product you are shown including taxes and all fees. Gesture ensures that you will not be hit with all sorts of extra fees that you were not expecting before purchase.

 

14. Dispute Resolution.  

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH GESTURE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 14 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.  

 

(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Gesture or the Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with Gesture as a User of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Gesture may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.

 

CASES HAVE BEEN FILED AGAINST GESTURE—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.

 

IF YOU AGREE TO ARBITRATION WITH GESTURE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST GESTURE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

 

(b) Informal Resolution. You and Gesture agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Gesture therefore agree that, before either you or Gesture demands arbitration against the other, we will personally meet and confer, via telephone or videoconferencing, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Gesture that you intend to initiate an informal dispute resolution conference, email resolutions@gesture.vip, providing your name, telephone number associated with your Gesture account (if any), the email address associated with your Gesture account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration.   The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

 

(c) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 14(b). If this notice is being sent to Gesture, it must be sent by email to the counsel who represented Gesture in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 1412 Broadway Floor 21 New York, NY 10018. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available as of December 21, 2020 at https://www.adrservices.com/services/arbitration-rules or by calling ADR Services, Inc. at 310-201-0010. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of December 21, 2020 at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (1) involve the same or similar parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties. In all other circumstances, the fees set forth in ADR Services, Inc.’s General Fee Schedule shall apply, except that Gesture will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s rules. If the arbitrator finds that you cannot afford to pay ADR Services, Inc.’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from ADR Services, Inc., Gesture will pay them for you. If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.

 

(d) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and Gesture. Except as expressly agreed to in Section 14(g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Gesture.

 

(e) Waiver of Jury Trial. YOU AND GESTURE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Gesture are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 14(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

 

(f) Waiver of Class or Consolidated Actions. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 14(G) OF THIS AGREEMENT, YOU AND Gesture AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN SECTION 14(G). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 14(G). If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Gesture is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20. This provision does not prevent you or Gesture from participating in a class-wide settlement of claims.

 

(g) Batch Arbitration. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against Gesture, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with Gesture and the arbitration provider to implement such a batch approach to resolution and fees.

 

(h) No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND GESTURE RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 14 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH Gesture.

 

(i) Survival. This Arbitration Agreement will survive any termination of your relationship with Gesture.

 

(j) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Gesture makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Gesture. 

 

15. Third-Party Interactions.  

 

(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, Gesture will not warn you that you have left Gestures website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Gesture. Gesture is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. Gesture does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

(b) App Stores. You acknowledge and agree that the availability of the Software and the Services is dependent on the third party from which you received the application license, e.g., the Apple and/or Google iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Gesture and not with the App Store. Gesture, not the App Store, is solely responsible for the Software and the Services, including the mobile application(s), the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Software and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Software or the Services. You agree to comply with, and your license to use the Software and the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.

 

16. Social Media Guidelines.   

 

Gesture maintains certain social media pages for the benefit of the Gesture community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by our terms of use and Social Media Community Guidelines.  

 

17. Transactions Involving Alcohol   

 

You may have the option to request delivery of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the Contractor delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither Gesture nor the Contractor can accept your order of alcohol products, and the order will only be delivered if the Merchant accepts your order. The Contractor reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated. If the Contractor is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable $50 re-stocking fee.

 

18. Indemnification  

 

You agree to indemnify and hold harmless Gesture and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Gesture reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gesture in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.

 

19. Disclaimer of Warranties  

 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GESTURE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.

 

GESTURE DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, GESTURE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

 

20. Delays  

 

The Software and Courier Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in Gesture’s Privacy Policy or as otherwise required by applicable law, Gesture is not responsible for any delays, delivery failures, or damage, loss or injury resulting from such problems.

 

21. Breach And Limitation of Liability  

 

(a) General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost.  You understand and agree to the limitations on remedies and liabilities set forth in this Section 19 to keep the Software and Services simple and efficient, and costs low, for all Users.

 

(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, GESTURES AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO GESTURE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

 

(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW, GESTURE SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY GESTURES FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

 

22. Exclusive Venue  

 

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Gesture agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York County if you are a New York citizen or resident, and in the United States District Court for the District in which you reside if you are not a California citizen or resident.

 

23. Termination  

 

If you violate this Agreement, Gesture may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists. In addition, at its sole discretion, Gesture may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Gesture reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

 

24. Procedure for Making Claims of Copyright Infringement.  

 

It is Gesture’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Gesture by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Gesture’s Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, Gesture US, Inc., 1412 Broadway, Floor 21 New York, NY 10018.

 

25. General  

 

(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Gesture or any third-party provider as a result of this Agreement or use of the Software or Services.

 

(b) Choice of Law. This Agreement is governed by the laws of the State of Delaware consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.

 

(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

 

(d) Consumer Complaints. You may report complaints to the Division of Consumer Services Complaint Department of the New York Department of Consumer Affairs by contacting them in writing at NYC Department of Consumer Affairs Consumer Services Division 42 Broadway, 9th Floor New York, NY 10004 Fax:(212) 487-4482

 

(e) Accessing and Downloading the Application from iTunes or Google PlayStore. The following applies to any Software accessed through or downloaded from the Apple App Store and/or Google PlayStore (an “App Store Sourced Application”):

 

(1) You acknowledge and agree that (i) the Agreement is concluded between you and Gesture only, and not Apple and/or Google, and (ii) Gesture, not Apple and/or Google, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

 

(2) You acknowledge that Apple and/or Google has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

 

(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple and/or Google, and Apple and/or Google will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple and/or Google will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Gesture and Apple and/or Google, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Gesture.

 

(4) You and Gesture acknowledge that, as between Gesture and Apple and/or Google, Apple and/or Google is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

 

(5) You and Gesture acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Gesture and Apple and/or Google, Gesture, not Apple and/or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms 

 

(6) You and Gesture acknowledge and agree that Apple and/or Google, and Apple and/or Google’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple and/or Google will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

 

(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using any App Store Sourced Application.

 

(f) Notice. Where Gesture requires that you provide an e-mail address, you are responsible for providing Gesture with your most current e-mail address. In the event that the last e-mail address you provided to Gesture is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Gesture’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Gesture through the following email address support@gesture.vip. Such notice shall be deemed given on the next business day after such e-mail is actually received by Gesture.

 

(g) Electronic Communications. For contractual purposes, you (1) consent to receive communications from Gesture in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gesture provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.

 

(h) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Gesture without restriction. Any attempted transfer or assignment in violation hereof shall be considered null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.

 

(i) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and Gesture relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.

 

24. Contact Information  

 

Gesture wants to hear your questions or comments regarding our Terms or anything else you would like to share:

 

Gesture US, Inc.

 

500 7th Ave #FL8

 

New York, NY 10018

 

corporate@gesture.vip

 

Telephone Number: +1 929-249-0076