Last Updated: July 20, 2010
These Ning Virtual Gift Terms of Service, including any future modifications (“Virtual Gift Terms”), govern your purchase, receipt, and use of Ning, Inc. (“Ning”, “we” or “us”) fictional currency (“Ning Credits”) and your redemption of Ning Credits in any gift store made available by Ning on any Network on the Ning Platform (“Gift Store”) for virtual goods or virtual services (“Virtual Gifts”).
These Virtual Gift Terms also govern your submission of Virtual Gifts for possible placement in Gift Stores (“Your Virtual Gifts”) and, if you are a Network Creator or other eligible person as may be specified by Ning from time to time, certain incentives (“Incentives”) that Ning may provide to you associated with Virtual Gifts, as further described below (“Incentive Program”). Your activities under these Virtual Gift Terms are also subject to the terms and conditions of Ning’s general Terms of Service (including all restrictions, disclaimers, and limitations of liability contained therein) and the Virtual Gift Terms are hereby incorporated into the Ning Terms of Service. Any capitalized terms not defined herein have the meaning set forth in the Ning Terms of Service. Ning may, from time to time, post additional guidelines regarding the Incentive Program and submission of Your Virtual Gifts (“Virtual Gift Guidelines”). All Virtual Gift Guidelines are part of these Virtual Gift Terms and are hereby incorporated by reference. In the event of any conflict between the Terms of Service and these Virtual Gift Terms, these Virtual Gift Terms will control.
By accepting, purchasing, using, or redeeming Ning Credits, by giving or receiving a Virtual Gift, by submitting Your Virtual Gifts to Ning, or by participating in the Incentive Program, you acknowledge that you have read, understood, and agree to be bound by these Virtual Gift Terms and the Terms of Service.
As a Member or Network Creator, Ning may either charge a fee to you for Ning Credits, or, at its discretion, distribute Ning Credits to you for free. Regardless of any terminology used in these Virtual Gift Terms (such as “purchase,” “buy,” or “sell”) or when we otherwise talk about transactions related to Ning Credits, the Gift Store or Virtual Gifts, Ning does not transfer an ownership interest in the Ning Credits to you. Ning Credits are merely a virtual item licensed to you and have no monetary value. Ning hereby grants you a limited, digital, non-exclusive, non-transferable, revocable, one-time use license (with no right to sublicense) to use the Ning Credits, in the form provided by Ning, solely for the purpose of using on the Ning Platform as provided by these Virtual Gift Terms and the Terms of Service. Ning Credits may be redeemed only at a Gift Store. You may not obtain cash from Ning, any Member, Network Creator or any third party in exchange for Ning Credits. You will not sell Ning Credits to anyone, or transfer or agree to transfer Ning Credits to anyone. You acknowledge that Ning Credits are fictional currency. You agree that Ning has the absolute right to change the purchase price of, reduce, manage, regulate, control, modify, or eliminate Ning Credits as it sees fit in its sole discretion, and that Ning will have no liability to you based on its exercise of such rights. The current pricing for Ning Credits is described here.
You may view your Ning Credit balance at any time on your My Settings page. Your license to Ning Credits expire on the sooner of: (a) the deactivation or termination of your Ning Member account by you or Ning; and (b) Ning’s revocation or termination of the license as provided by these Virtual Gift Terms or the Terms of Service; and (c) three years after your purchase of those Ning Credits. Ning may immediately cancel, suspend, or limit your access to your Ning Credits if Ning suspects fraudulent, abusive, or unlawful activity in connection with your Ning Credits, or if you have violated the Terms of Service or these Virtual Gift Terms. Ning is under no obligation to reinstate cancelled, suspended, forfeited or otherwise lost Ning Credits.
Ning uses PayPal or other third parties to process your payments for Ning Credits. By purchasing Ning Credits, you are authorizing the payment processor to charge your credit card or debit your bank account all applicable fees for your purchase, in United States dollars, including any applicable taxes. You must comply with all terms established by the payment processor. You acknowledge that Ning does not control the transaction, and that you bear all risk in connection with the transaction. All purchases of Ning Credits are final and Ning will not issue refunds of payments for Ning Credits. To the fullest extent permitted by law, you waive all claims against us related to payments for Ning Credits. Refunds (if any) of any payment you make for Ning Credits will be given solely by the payment processor and are subject to the payment processor's policies and applicable law. If you believe that any charge by the payment processor is in error, you must contact the payment processor to seek resolution. Your correspondence or business dealings with a payment processor, including payment and related services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable payment processor. Ning is under no obligation to become involved and you hereby release Ning from any liability for any dispute that you may have with a payment processor.
If Ning does not receive payment from the payment processor for any reason, you will pay all amounts due upon demand and Ning may cancel your Ning Credits or terminate your Ning account. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees.
You are responsible for and agree to reimburse Ning for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted.
When you redeem Ning Credits for a Virtual Gift, Ning will post the Virtual Gift and any accompanying message from you within the recipient's profile page (or share it privately if you choose). Ning’s obligation with respect to any redemption transaction ends when Ning delivers the Virtual Gift and message. If you are the recipient of a Virtual Gift, Ning hereby grants to you a limited, digital, non-exclusive, non-transferable, revocable, one-time use license (with no right to sublicense) to display the Virtual Gift on Your profile, in the form provided by Ning. You may not obtain cash from Ning, any Member, Network Creator or any third party in exchange for a Virtual Gift. You will not sell any Virtual Gift to anyone, or, except pursuant to a redemption transaction under these Virtual Gift Terms, transfer or agree to transfer any Virtual Gift to anyone.
Your only remedy for a technical failure or interruption of service is to request that your transaction be completed at a later time. Ning is not responsible for replacing any Virtual Gift or message that is deleted or otherwise lost by the recipient. IN ADDITION TO ANY WARRANTY DISCLAIMERS SET FORTH IN THE TERMS OF SERVICE, ALL VIRTUAL GIFTS ARE PROVIDED AS-IS, WITHOUT WARRANTY OF ANY KIND.
There may be limited quantities of Virtual Gifts, and Ning may change at any time either the Virtual Gifts offered in exchange for Ning Credits or the number of Ning Credits required in exchange for a Virtual Gift. Ning has no obligation to continue offering any Virtual Gift in exchange for Ning Credits. ALL REDEMPTION TRANSACTIONS ARE FINAL. Once redeemed, Ning is under no obligation to provide any refunds of Ning Credits, except that Ning will provide you a refund of the applicable amount of Ning Credits if Ning removes a Virtual Gift from your recipient’s profile in connection with a valid DMCA take-down notice, as further described in the Terms of Service.
You must immediately notify us in writing if you believe that any activity related to your Ning Credits balance, including any redemption transaction, is incorrect or unauthorized. If you do not dispute that activity on your account in writing to Ning within thirty (30) days of the occurrence of that activity, you agree not to dispute that activity and you waive all claims against us related to that activity to the fullest extent permitted by law. Refunds of Ning Credits (if any) from a properly disputed redemption transaction or other account activity are at the sole discretion of Ning. If you believe any charge by the payment processor is in error, you must contact the payment processor to seek resolution.
As a Network Creator, you may submit Your Virtual Gifts for display in the Gift Store on Your Network. Your Virtual Gifts are considered “Your Content” under the Terms of Service and are subject to all terms and conditions set forth in the Terms of Service applicable to Your Content, including the license grant to Ning. Ning may also allow you to submit Your Virtual Gifts for availability in Gift Stores on other Networks hosted on the Ning Platform. As between you and Ning, you own Your Virtual Gift. Ning is not obligated, but reserves the right, to pre-screen Your Virtual Gift, and may refuse to accept, post, display or transmit Your Virtual Gift through or on any Network or the Ning Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability.
If you are a Network Creator, Ning may provide you the opportunity to customize certain portions of the Gift Store for Your Network. For example, you may be able to change the name “Ning Credits” to any name that does not otherwise violate these Virtual Gift Terms or the Terms of Service.
As a Network Creator, you can choose to participate in the Incentive Program. Ning reserves the right to pre-screen or refuse to accept you as an enrollee in the Incentive Program, or to remove you from the Incentive Program, at any time for any reason or no reason with or without notice and with no liability. In order to participate in the Incentive Program, you must provide Ning with your name, email address and any other information as requested by Ning in the Incentive Program opt-in process or otherwise. You agree to provide Ning with current, complete and accurate information as promoted by the opt-in process or as otherwise requested by Ning. You agree to promptly update all information to keep your account on Ning current, complete and accurate (such a noting a change in address or email).
Payment Terms
If you are selected to participate in the Incentive Program, Ning will provide you a payment based on the number of Ning Credits redeemed for Virtual Gifts in the Gift Store on Your Network in any transaction that meets all of the following criteria (“Qualifying Transaction”): (a) the transaction has not been subject to reversal for fraud, chargeback or any other reason, including but not limited to, for valid DMCA take-down notices; (b) the transaction has been made using non-promotional Ning Credits or Ning Credits that were purchased; and (c) the transaction is not otherwise in violation of these Virtual Gift Terms or the Terms of Service. You may review the current Incentives here. Ning may change, modify, or discontinue the Incentive Program at any time.
Approximately sixty (60) days following the end of each calendar month (“Covered Period”), Ning will make Incentive payments in U.S. dollars via PayPal (or another third party payment processor as applicable) for Qualifying Transactions during that Covered Period. Except pursuant to the deactivation or termination of your Ning Member account, Ning will not be obligated to make payment in any Covered Period when your Incentive balance is less than $100. All unpaid earnings will rollover to the next Covered Period. If you delete Your Network associated with the Incentive Program or deactivate or otherwise close your Ning Member account, or if Ning deletes Your Network or closes your Ning Member account, Ning will pay you the balance of your Incentives within approximately sixty (60) days of the date of deactivation or termination. Ning may also provide you reports regarding Qualifying Transactions on Your Networks, listing the number of Qualifying Transactions during a particular Covered Period (“Network Creator Report”). Any information contained in any Network Creator Report is the confidential information of Ning, and you will not disclose any Network Creator Report or portion of any Network Creator Report to any third party.
Disputes
You must comply with all terms established by the payment processor. If you believe that there is an error by Ning with respect to any Incentive payment, you must notify Ning in writing via the Ning Help Center within thirty (30) days of receipt of that payment. After thirty (30) days, you agree not to dispute any Incentive payments, and you waive all claims against us related to Incentive payments to the fullest extent permitted by law. All Incentive payments are based solely on records maintained by Ning, and no other measurements or statistics of any kind will be accepted by Ning or have any effect under these Virtual Gift Terms. If you believe any charge by the payment processor is in error, you must contact the payment processor to seek resolution. Your correspondence or business dealings with a payment processor, including payment and related services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable payment processor.
Taxes
You are solely responsible for payment of any taxes applicable to your receipt of Incentives, including without limitation excise, withholding or other taxes, value added taxes and duties (as well as any related penalties and interest). Ning may reduce Incentive payments payable to Network Creator under these Virtual Gift Terms by the amount of tax, duties, fees, or any penalties for which Network Creator is responsible or for which Ning is responsible on behalf of Network Creator, and pay such tax, duties, fees, or penalties to the appropriate authorities. Ning will provide Network Creator with evidence of payment of such withholding taxes, duties, or fees if Network Creator reasonably requests.
You are not entitled to any Incentives except as expressly provided in these Virtual Gift Terms or other Virtual Gift Guidelines provided by Ning. Ning may immediately cancel, suspend or forfeit your Incentives if Ning suspects fraudulent, abusive or unlawful activity in connection with your Incentives, or if you have violated the Terms of Service or these Virtual Gift Terms. Ning is under no obligation to reinstate cancelled, suspended, or forfeited Incentives. You must promptly return to Ning all Incentives received from any redemption transaction that is related to any violation of these Virtual Gift Terms or the Terms of Service.
You agree that Ning can contact you via the e-mail address you provided in your account registration (or via any other contact information that is collected from you) regarding Your Virtual Gifts or your participation in the Incentive Program, including forwarding to you DMCA take down notices and inquiries from Members. You acknowledge and agree that you are solely responsible for, and that Ning has no responsibility or liability of any kind for, providing support and other information regarding Your Virtual Gifts to Members. Additionally, you agree that you are solely responsible for, and that Ning has no responsibility or liability of any kind for, the development, operation and maintenance of Your Virtual Gifts or for any materials that are included on or within Your Virtual Gift.
Ning may, in its sole discretion: (a) cancel any purchase of Ning Credits, any redemption transaction, or Incentive payment if we believe that the purchase, redemption transaction, or Incentive payment violates these Virtual Gift Terms, the Terms of Service, or applicable law, or if we believe that doing so may prevent financial loss; (b) contact your payment processor, law enforcement, or impacted third parties (including other Members) and share details of any purchase, redemption transaction, or Incentive payment that you are associated with if we believe that doing so may prevent financial loss or a violation of law; or (c) intervene in a dispute between a Member and a Network Creator or payment processor, provided that Ning has no obligation to do so.
Ning does not allow you to include advertising, commercial or promotional content within your Virtual Gift, and your Virtual Gift cannot be used to promote third-party goods or services. In addition, without limiting any restriction set forth in the Terms of Service, Your Virtual Gift must not, in Ning’s discretion:
Subject to and in accordance with the terms and conditions of these Virtual Gift Terms and the Terms or Service, Ning grants you a limited, non-exclusive, non-transferable, revocable license (with no right to sublicense) to display the Ning Marks, in the form provided by Ning, solely for the purpose of indicating that Your Virtual Gift was created for the Ning Platform. You shall in no way imply endorsement by Ning of Your Virtual Gift or any other product or service. Ning retains the right to modify or change its Ning Marks at any time. Ning reserves all rights in and to the Ning Marks and changes thereto, and you agree to use only the most current version of such changed Ning Marks and not any prior versions. You acknowledge that all goodwill generated through your use of the Ning Marks will inure solely to the benefit of Ning and you hereby assign and agree to assign to Ning any and all goodwill generated through your use of the Ning Marks, without any payment or other consideration of any kind to you. You further agree to take all actions necessary to effect the foregoing assignment. You must not and you hereby agree that you will not use the Ning Marks other than as contemplated by these Virtual Gift Terms and as provided by Ning to you and will not remove, obscure, modify, or alter any Ning Marks. Upon termination of these Virtual Gift Terms, you shall immediately cease to use the Ning Marks. Apart from providing attribution as expressly described in this Section, you shall not, unless we otherwise consent in writing, use the name “Ning” in any way, including, but not limited to, as any part of the name of Your Virtual Gift. Examples of prohibited uses include “Ning [Your Virtual Gift name]", or "[virtual gift name]Ning." Further, you may not use the term "Ning", or variations of “Ning”, in the name of a URL. For example, URLs such as "ning.xxx.com", or "ningvirtualgifts.net" are expressly prohibited.
You agree that Ning may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the Ning Platform, and any products, goods, features, capabilities and/or services associated with the Ning Platform and your use of the Incentive Program or the posting of Your Virtual Gifts on the Ning Platform.
You may discontinue your use of Ning Credits or opt out of the Incentive Program at any time. Without limiting any provision of the Terms of Service, you acknowledge and agree that Ning may at any time and in its sole discretion, without liability, with or without cause and with or without notice: (a) terminate or suspend your access to the Ning Platform; (b) terminate these Virtual Gift Terms; (c) remove, block, delete or disable access to Your Virtual Gift or any portion or feature of any of Your Virtual Gift, including, if we determine in our sole discretion, that Your Virtual Gift is unsuitable for the Ning Platform or its Users; or (d) terminate the Incentive Program. Additionally, Ning reserves the right to disable any Member’s access to Your Virtual Gift at any time, in its sole discretion, without notice or liability to you.
The following provisions will survive any termination of these Virtual Gift Terms and will continue to bind you and Ning in accordance with their terms: (a) any licenses granted by you to Ning herein; (b) any accrued but unpaid payment obligations of either you or Ning; (c) your confidentiality obligations with respect to any reports issued to you under the Incentive Program; (d) all disclaimers by Ning and limitations of Ning’s liability; and (e) any definitions that are necessary to give effect to the foregoing provisions.
It is Ning's policy to respond to notices of alleged copyright infringement that comply with the DMCA. For more information, please see the Terms of Service and Ning's DMCA Notification Guidelines.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL NING OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF NING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THESE VIRTUAL GIFT TERMS OR YOUR USE OR THE INABILITY TO USE NING CREDITS, VIRTUAL GIFTS OR ANY PORTION OF THE NING PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THESE VIRTUAL GIFT TERMS OR YOUR USE OR THE INABILITY TO USE NING CREDITS, VIRTUAL GIFTS OR ANY PORTION OF THE NING PLATFORM (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO NING BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN NING (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE NING PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED. THE LIMITATIONS SET FORTH IN THIS SECTION 13 SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
We may amend, modify, change, add or remove portions of these Virtual Gift Terms at any time without notice to you by posting a revised version on www.ning.com or elsewhere on the Ning Platform. The revised version will be effective at the time we post it. Please check these Virtual Gift Terms periodically for changes. Your continued acceptance of payments under the Incentive Program, your purchase or redemption of Ning Credits, or your submission of Your Virtual Gifts after posting of the changes constitutes your binding acceptance of such changes. We last modified these Virtual Gift Terms on the date stated above. However, if the revised version includes a material change, it will be effective on the earlier of: (a) the date you accept it; and (b) 30 days after the material changes are initially posted to www.ning.com or elsewhere on the Ning Platform. The revised version will apply to you immediately if you are a Network Creator or other party who opts into the Incentive Program or submits Your Virtual Gift on or after the posting of the revised version.