Welcome and thank you for your interest in Givelist Media Company. (" Givelist ," "we," "us," or "our") and the Givelist website located at givelists.com and any other websites of Givelist, its affiliates or agents (collectively, the " Website "), Givelist’s "Givelist App" mobile application (the " Application "), and the services and resources available, provided, or enabled via the Application or the Website (each a " Service " and collectively, the "Services").
PLEASE BE AWARE THAT SECTION 16 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT . IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT THAT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION .UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (i) 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; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE GIVELIST PROPERTIES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION . THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Givelist Properties provide a platform that allows Users to donate to and connect with non-profit organizations (each a "Non-Profit") furthering causes and addressing issues that a User cares about.
1. Use of the Services and the Givelist Properties. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the "Givelist Properties") are protected by copyright laws throughout the world. Subject to your compliance with the Terms, Givelist grants you a limited right to access and use the Website and the Services for your personal purposes. Unless otherwise specified by Givelist in a separate license, your right to use all portions of the Givelist Properties is subject to the Terms.
1.1 Application License . Subject to your compliance with the Terms, Givelist grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application "), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
1.2 Updates . You understand that the Givelist Properties are evolving. As a result, Givelist may require you to accept updates to the Givelist Properties that you have installed on your computer or mobile device. You acknowledge and agree that Givelist may update the Givelist Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Givelist Properties. Any future release, update or other addition to the Givelist Properties shall be subject to the Terms.
1.3 Third-Party Materials . As a part of the Givelist Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Givelist to monitor such materials and that you access these materials at your own risk. Some software included in the Application, the Website or the Services may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms, and in such cases, the terms of the open source license shall govern.
2.1 Registering Your Account . In order to access certain features of the Givelist Properties you may be required to become a Registered User. For purposes of the Terms, a "Registered User" is a User who has registered an account on the Application or the Website (an "Account") or has a valid account on a social networking service ("SNS") through which the User has connected to the Givelist Properties (each such account, a "Third-Party Account").
2.2 Access Through a SNS . If you access the Givelist Properties through a SNS as part of the functionality of the Givelist Properties that may now or in the future be provided, you may link your Account with Third-Party Accounts, by allowing Givelist to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account and this Section 2.2 shall apply with respect to any such linked Third-Party Accounts. You represent and warrant that you are entitled to disclose your Third-Party Account login information to Givelist and/or grant Givelist access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Givelist to pay any fees or making Givelist subject to any usage limitations imposed by such third-party service providers. By granting Givelist access to any Third-Party Accounts, you understand that Givelist may access, make available and store (if applicable) any content or materials accessible through the Givelist Properties that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Givelist Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Givelist Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Givelist’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Givelist Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing your account settings on the Givelist Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH ANY THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND GIVELIST DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Givelist makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Givelist is not responsible for any SNS Content.
2.3 Registration Data . In registering an Account on the Website, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the registration form (the " Registration Data "); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are: (A) at least eighteen (18) years old; (B) of legal age to form a binding contract; and (C) not a person barred from using the Givelist Properties under the laws of the United States, or your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you will monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Givelist Properties by minors via your Account, including any use of your credit card or other payment instrument (e.g., PayPal). You agree to notify Givelist immediately of any unauthorized use of your password or any other breach of security. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the Givelist Properties if you have been previously removed by Givelist, or if you have been previously banned from any of the Givelist Properties.
2.4 Necessary Equipment and Software . You must provide all equipment and software necessary to connect to the Givelist Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Givelist Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for texts in order to perform and improve upon the Services. Givelist will not assess and charge for any calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing [email protected]
3. Responsibility for Content
3.1 Types of Content . You acknowledge that all content that a User or other third party, including Non-Profits, Makes Available on the Givelist Properties ("Content") is the sole responsibility of the party from whom such Content originated. This means that you, and not Givelist, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available or provide to Givelist for the purposes of making available ("Make Available") through the Givelist Properties ("Your Content"), and that you and other Users of the Givelist Properties, and not Givelist, are similarly responsible for all Content they Make Available through the Givelist Properties (" User Content ").
3.2 No Obligation to Pre-Screen Content . You acknowledge that Givelist has no obligation to pre-screen Content (including, but not limited to, User Content), although Givelist reserves the right, in its sole discretion, to pre-screen, refuse, or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Givelist pre-screens, refuses or removes any Content, you acknowledge that Givelist will do so for Givelist’s benefit, not yours. Without limiting the foregoing, Givelist shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.1 The Givelist Properties . Except with respect to Your Content, you agree that Givelist and its licensors and suppliers own all rights, title and interest in the Givelist Properties (including but not limited to, any computer code, themes, objects, concepts, artwork, musical compositions, images, videos, documentation, and other works of authorship, inventions, methods of operation included in the Givelist Properties and all intellectual property rights therein or thereto). Givelist, its licensors, suppliers and service providers reserve all rights not granted in the Terms. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Application, the Services, or the Givelist Properties.
4.2 Trademarks . The "Givelist" and "GIVELIST APP" names and trademarks and any related graphics, logos, service marks and trade names used on or in connection with the Givelist Properties or in connection with the Services are the trademarks of Givelist and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Givelist Properties are the property of their respective owners.
4.3 Your Content . Givelist does not claim ownership of Your Content. However, when you, as a User, post or publish Your Content on or in the Givelist Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.4 License to Your Content . Subject to any applicable account settings that you select, you grant Givelist a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Givelist Properties to you and to our other Users.
4.5 Feedback . You agree that submission of any ideas, suggestions, documents, and/or proposals to Givelist ("Feedback") is at your own risk and that Givelist 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. You hereby grant to Givelist a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Givelist Properties.
5. User Conduct. As a condition of your use of the Givelist Properties, you agree not to (or permit any third party to): (i) use the Givelist Properties for any purpose that is prohibited by the Terms or by applicable law; (ii) reproduce, duplicate, copy, exploit for any commercial purpose, sell, trade, resell the Givelist Properties (including your Account) or any access to or use of the Givelist Properties or any portion thereod(except to the extent expressly authorized by the Terms); (iii) attempt to gain unauthorized access to the Givelist Properties, non-public areas of the Givelist Properties, Accounts registered to others, or to the computers, servers or networks connected to the Givelist Properties by any means other than the user interface provided by Givelist, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Givelist Properties; (iv) stalk or otherwise harass any Non-Profit or other User; or (v) take any action or Make Available any Content on or through the Givelist Properties that: (A) infringes any patent, trademark, trade secret, copyright, right of publicity or privacy or other right of any person or entity; (B) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, inflammatory, tortious, obscene, pornographic, indecent, political, offensive, profane, discriminatory, or liable to incite racial hatred; (C) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (D) impersonates any person or entity, including any employee or representative of Givelist; (E) interferes with or attempt to interfere with the proper functioning of the Givelist Properties or uses the Givelist Properties in any way not expressly permitted by the Terms; or (F) attempts to engage in or engage in, any potentially harmful acts that are directed against the Givelist Properties, including but not limited to violating or attempting to violate any security features of the Givelist Properties, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the Givelist Properties, introducing viruses, worms, or similar harmful code into the Givelist Properties, or interfering or attempting to interfere with use of the Givelist Properties by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Givelist Properties.
6. Interactions with Other Users
6.1 User Responsibility . You are solely responsible for your interactions with other Users and any other parties with whom you interact using the Givelist Properties, including Non-Profits; provided, however, that Givelist reserves the right, but has no obligation, to intercede in such disputes. You agree that Givelist will not be responsible for any liability incurred as the result of such interactions.
6.2 Content Provided by Other Users . The Givelist Properties may contain Content provided by other Users or third parties, including Non-Profits. Givelist is not responsible for and does not control such Content or third party Content. Givelist has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content or any third party Content. You agree that you use all Content and interact with Non-Profits, and other Users and third parties at your own risk.
7. Third-Party Services
7.1 Third-Party Websites, Applications . The Givelist Properties may contain links to third-party websites ("Third-Party Websites") and applications ("Third-Party Applications"). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Givelist Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Givelist. Givelist is not responsible for any Third-Party Websites or Third-Party Applications. Givelist provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Application, our Website, or our Services, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 App Stores . You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play ("App Store"). You acknowledge that the Terms are between you and Givelist and not with the App Store. Givelist, not the App Store, is solely responsible for the Givelist Properties, including the Application, 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 Application, 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 Givelist Properties, including the Application. You agree to comply with, and your license to use the Application 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 Givelist Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
8. Fees and Donation Terms
8.1 General Purpose of Terms: Sale of Service, not Software . The purpose of the Terms is for you to secure access to the Services. In consideration of receiving certain Services you may be required to pay certain fees (each a "Service Fee "). Service Fees set forth and paid by you under the Terms shall be considered solely in furtherance of securing access to the Services. In no way are Service Fees paid considered payment for the sale, license, or use of Givelist’s Software, and, furthermore, any use of Givelist’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms. Givelist reserves the right to determine pricing for the Services. Givelist will make reasonable efforts to keep pricing information published on the Website and Application up to date. We encourage you to check our Website and Application periodically for current pricing information. No contract for Services, including any Subscription Service, requiring payment of a Service Fee will exist between you and Givelist for those Services until Givelist provides confirmation of your purchase of such Services via email or through the Givelist Properties. Givelist at its sole discretion, may make promotional offers with different features and different pricing to certain Users. These promotional offers, unless made to you, will not apply to your offer or these Terms.
8.2 Payments and Donations . When you use the Givelist Properties to support causes and Non-Profits you care about, you may do so by either making a Recurring Donation, as defined in Section 8.3, or by making a Direct Donation, as defined in Section 8.4 (together, " Donations "). You must provide Givelist with a valid bank account as a condition to purchasing certain Services, including making Donations using the Givelist Properties. You agree to pay all Service Fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable under the appropriate Donation Schedule, defined in Section 8.3. Until that time, neither Givelist nor its third party payment service providers will reserve any charges against your accounts, or hold any Donation amounts on your behalf or on behalf of any Non-Profit. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Givelist with your Payment Provider information, you agree that (i) Givelist or Givelist’s third party payment service provider, as applicable, is authorized to charge your Payment Provider for all fees and charges due and payable to Givelist hereunder, and for any Donations you agree to make to Non-Profit(s) by using the Services; and (ii) no additional notice or consent is required for such charges. You agree to immediately notify Givelist of any change in your billing address or the credit card or PayPal account used for payment hereunder. Givelist reserves the right at any time to change its billing methods, either immediately upon posting on the Givelist Properties or by e-mail delivery to you.
8.3 Recurring Donations . Certain features of the Service may allow you to opt-in to making automatic recurring donations (" Recurring Donations ") in accordance with the schedule for a Recurring Donation set forth at the time you opt-in to that Recurring Donation ("Donation Schedule"). When you opt-in, you are making a pledge to support a cause or issue of your choice as presented on the Givelist Properties; your Payment Provider will not be charged at this time. You authorize Givelist, or Givelist’s third party payment service provider, to fulfill your pledge and charge any Recurring Donation amounts to your Payment Provider, in accordance with the applicable Donation Schedule. Givelist will notify you prior to charging you for any Recurring Donation. You can change or cancel a Recurring Donation at any time via your account settings on the Website or Application or by contacting Givelist at [email protected] Any change or cancellation of a Recurring Donation will be effective immediately with respect to any Recurring Donations scheduled after the date of such change or cancellation. All Donations, including Recurring Donations are non-refundable after your Payment Provider has been charged.
8.4 Direct Donations . Certain features of the Service may allow you to make one-time Donations to Non-Profits ("Direct Donations"). At the time you make a Direct Donation, you authorize Givelist, or Givelist’s third party payment service provider, to charge any Direct Donation amounts to your Payment Provider immediately. You cannot change or cancel a Direct Donation after your Payment Provider has been charged. All Donations, including Direct Donations are non-refundable after your Payment Provider has been charged.
8.5 Subscription Services . The Service Fees for certain Services may include automatically recurring payments for periodic charges (" Subscription Service"). If you activate a Subscription Service: (i) you agree that each Subscription Service will automatically commence on the Subscription Billing Date and continue for the applicable subscription period set forth on the Website or Application and automatically renew for an additional equivalent period at Givelist’s then-current price for such Subscription Service unless and until you cancel, or we terminate, your subscription or your Account; (ii) the Subscription Service will continue unless you authorize Givelist to periodically charge, on a going-forward basis and until the cancellation or termination of either the Subscription Service or your Account, all accrued sums on or before the payment due date for the accrued sums; (iii) your Payment Provider will be charged all applicable fees for the next subscription period automatically at the start of each Subscription period; and (iv) you must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. The "Subscription Billing Date" is the date when you purchase your first subscription to the Service. The Service Fee applicable to any Subscription Service shall be as set forth on the Website or App (each a " Subscription Fee "). You may cancel the Subscription Service at any time via your account settings on the Website or Application or by contacting Givelist at [email protected] Any cancellation of a Subscription Service shall be effective upon the end of the then current subscription period and all Subscription Fees are non-refundable.
8.6 Delinquent Accounts . Givelist may suspend or terminate your access to any or all Services in the event that any Service Fee is due but unpaid.
9. Indemnification . You agree to indemnify and hold Givelist, its parents, subsidiaries, affiliates, officers, employees, agents, partners, including Non-Profits, and licensors (collectively, the "Givelist Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Givelist Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Givelist 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 Givelist in asserting any available defenses. This provision does not require you to indemnify any of the Givelist Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section 9 will survive any termination of your Account, the Terms or your access to the Givelist Properties.
10. Disclaimer of Warranties and Conditions
10.1 As Is . YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE GIVELIST PROPERTIES IS AT YOUR SOLE RISK, AND THE GIVELIST PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. GIVELIST PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) GIVELIST PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE GIVELIST PROPERTIES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE GIVELIST PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE GIVELIST PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE GIVELIST PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE GIVELIST PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. GIVELIST MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GIVELIST OR THROUGH THE GIVELIST PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Givelist may offer new "beta" features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Givelist’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.2 No Liability for Conduct of Third Parties . YOU ACKNOWLEDGE AND AGREE THAT GIVELIST PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GIVELIST PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING NON-PROFITS AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. GIVELIST MAKES NO WARRANTY REGARDING THE TAX-EXEMPT STATUS OF ANY NON-PROFIT OR THE DEDUCTIBILITY OF ANY DONATION CONTRIBUTED VIA THE GIVELIST PROPERTIES. GIVELIST MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING NON-PROFITS, WILL MEET YOUR REQUIREMENTS OR THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OR INFORMATION ABOUT OR PROVIDED BY A NON-PROFIT THAT IS OBTAINED THROUGH THE GIVELIST PROPERTIES.
10.3 No Liability for Conduct of Other Users . YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE GIVELIST PROPERTIES AND ANY NON-PROFITS. YOU UNDERSTAND THAT GIVELIST DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE GIVELIST PROPERTIES.
11. Limitation of Liability
11.1 Disclaimer of Certain Damages . YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL GIVELIST PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE GIVELIST PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT GIVELIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE GIVELIST PROPERTIES OR ANY NON-PROFITS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (i) THE USE OR INABILITY TO USE THE GIVELIST PROPERTIES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE GIVELIST PROPERTIES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE GIVELIST PROPERTIES; OR (iv) ANY OTHER MATTER RELATED TO THE GIVELIST PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GIVELIST PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GIVELIST PARTY'S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A GIVELIST PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION, OR PUNITIVE DAMAGES FOR ANY ACTIONS BY A GIVELIST PARTY ACTUATED BY MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED.
11.2 Cap on Liability . UNDER NO CIRCUMSTANCES WILL GIVELIST PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT OF DONATIONS PAID USING THE GIVELIST PROPERTIES by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; and (ii) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GIVELIST PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GIVELIST PARTY'S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A GIVELIST PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.4 Basis of the Bargain . THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GIVELIST AND YOU.
12. Procedure for Making Claims of Copyright Infringement. It is Givelist’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Givelist 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 Givelist Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Givelist Properties of the material that you claim is infringing; (iv) your address, telephone number and e-mail address; (v) 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 (vi) 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 Givelist’s Copyright Agent for notice of claims of copyright infringement is as follows: COGENCY GLOBAL INC 850 New Burton Road, Suite 201 Dover, Delaware 19904.
13.1 Violations . If Givelist becomes aware of any possible violations by you of the Terms, Givelist reserves the right to investigate such violations. If, as a result of the investigation, Givelist believes that criminal activity has occurred, Givelist reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Givelist is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Givelist Properties, including Your Content, in Givelist’s possession in connection with your use of the Givelist Properties, to: (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Givelist, its Users or the public, and all enforcement or other government officials, as Givelist in its sole discretion believes to be necessary or appropriate.
14. Term and Termination
14.1 Term . The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect until terminated in accordance with the Terms.
14.2 Prior Use . Notwithstanding the foregoing, if you used the Givelist Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Givelist Properties (whichever is earlier) and will remain in full force and effect while you use the Givelist Properties, unless earlier terminated in accordance with the Terms.
14.3 Termination of Services by Givelist . Givelist has the right to, immediately and without notice, suspend or terminate any Services provided to you for any reason or no reason, including if you have materially breached any provision of the Terms, or if Givelist is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful). Any unauthorized use of the Givelist Properties terminates the Terms and any licenses granted by Givelist pursuant to the Terms. You agree that any termination by Givelist shall be made in Givelist’s sole discretion and that Givelist shall not be liable to you or any third party for any termination of your Account.
14.4 Termination of Services by You . If you want to terminate the Services provided by Givelist, you may do so by (i) notifying Givelist at any time and (ii) closing your Account for all of the Services that you use. Your notice should be sent, via email, to [email protected]
14.5 Effect of Termination . Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include termination of your Account, deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content, and termination of any Recurring Donations. Upon termination of any Service, your right to use such Service will automatically and immediately terminate. Givelist will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15. International Users. The Givelist Properties are controlled and offered by Givelist from its facilities in the United States of America and are only intended for use in the United States of America. If you are not located in the United States or are not a resident of the United States, you may be restricted from creating an Account or otherwise accessing or using the Givelist Properties. Givelist makes no representations that the Givelist Properties are appropriate or available for use in other locations.
16. Dispute Resolution. Please read the following arbitration agreement in this Section ( "Arbitration Agreement" ) carefully . It requires you to arbitrate disputes with Givelist and limits the manner in which you can seek relief from us .
16.1 Applicability of Arbitration Agreement . You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Givelist, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify; and (ii) you or Givelist 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 or any prior version of this Agreement .
16.2 Arbitration Rules and Forum . The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent COGENCY GLOBAL INC 850 New Burton Road, Suite 201 Dover, Delaware 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Givelist will pay them for you. In addition, Givelist will reimburse all such JAMS's filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator . The arbitrator shall have exclusive authority to: (i) determine the scope and enforceability of this Arbitration Agreement; and (ii) resolve any dispute related 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. The arbitration will decide the rights and liabilities, if any, of you and Givelist. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and the Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial . YOU AND GIVELIST HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Givelist are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief . 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, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection's limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other claims shall be arbitrated.
16.6 30-Day Right to Opt Out . You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Givelist username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability . Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement . This Arbitration Agreement will survive the termination of your relationship with Givelist.
16.9 Modification . Notwithstanding any provision in this Agreement to the contrary, we agree that if Givelist makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective sending written notice of your decision to opt out to [email protected]
17. General Provisions.
17.1 Electronic Communications . The communications between you and Givelist use electronic means, whether you visit the Givelist Properties or send Givelist e-mails, or whether Givelist posts notices on the Givelist Properties or communicates with you via e-mail. For contractual purposes, you: (i) consent to receive communications from Givelist in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Givelist provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Assignment . The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Givelist’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure . Givelist shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, commercial infeasibility, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Questions, Complaints, Claims . If you have any questions, complaints or claims with respect to the Givelist Properties, please contact us at: [email protected] or (628) 400-8030. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5 Exclusive Venue . To the extent the parties are permitted under the Terms to initiate litigation in a court, both you and Givelist agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in Santa Clara County, California.
17.6 Governing Law . The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
17.7 Choice of Language . It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
17.8 Notice . Where Givelist requires that you provide an e-mail address, you are responsible for providing Givelist with your most current e-mail address. In the event that the last e-mail address you provided to Givelist is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Givelist’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Givelist at the following e-mail address: [email protected] Such notice, other than via email, shall be deemed given when received by Givelist by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at 24955 Pacific Coast Highway, Suite B202, Malibu, CA 90265.
17.9 Waiver . Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability . If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Export Control . You may not use, export, import, or transfer the Givelist Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Givelist Properties, and any other applicable laws. In particular, but without limitation, the Givelist Properties may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Givelist Properties, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Givelist Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Givelist are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Givelist products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.12 Accessing and Downloading the Application from Apple . The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that: (i) the Terms are concluded between you and Givelist only, and not Apple; and (ii) Givelist, not Apple, 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.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Givelist and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Givelist.
(d) You and Givelist acknowledge that, as between Givelist and Apple, Apple 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.
(e) You and Givelist 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 Givelist and Apple, Givelist, not Apple, 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.
(f) You and Givelist acknowledge and agree that Apple, and Apple'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 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.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17.13 Consumer Complaints . In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.14 Entire Agreement . The Terms are 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.