Last Modified: March 1, 2018
Certain services may be subject to additional terms and conditions and/or agreements specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.
Please read this Terms carefully to ensure that you understand each provision. These Terms contain a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
- Use of Our Platform
This is a contract between you and Company. You must read and agree to these terms before using the Company Platform. If you do not agree, you may not use the Platform. You may use the Platform only if you can form a binding contract with Company, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Platform by anyone under 13 is strictly prohibited and in violation of these Terms. The Platform is not available to any Users previously removed from the Platform by Company.
Your Company account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, including without limitation for the following User accounts; (i) Retail Sellers/Service Providers (“Sellers”); (ii) Charitable Beneficiary; and (iii) Purchasers. A “Seller” shall mean a registered and verified retail business that registers and decides to engage in one or more sales promotions to benefit, in whole or in part, a “Charitable Beneficiary” that registers with Company, and that is enabled to create a Project, as defined below, using the Platform. A “Purchaser” shall mean any and all individuals or entities that purchase items from a Seller that is advertised by Seller as a charitable sales promotion.
If you open a Company account on behalf of a company, organization, or other entity, as any type of User then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses caused by any unauthorized use of your account.
C. Platform Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Platform in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Company Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Platform; (vii) harvesting any personally identifiable information, including account names, from the Platform; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) interfering with the proper working of the Platform; (x) accessing any content on the Platform through any technology or means other than those provided or authorized by the Platform; (xi) engaging in a charitable sales promotion as either Seller or Charitable Beneficiary without complying with applicable laws; or (xii) bypassing the measures we may use to prevent or restrict access to the Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Platform or the content therein.
Accessing any audiovisual content that may be available on the Platform for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Platform. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Company Platform to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
D. Use of Platform; Creating a Project.
We are providing the Platform for Sellers to create a virtual storefront from which Sellers may sell to Purchasers with the representation that the purchase will benefit a named Charitable Beneficiary (a “Storefront”). You hereby understand and agree that by using the Platform or creating a Storefront (i) we, the Company are not engaging in any charitable solicitation or fundraising activities whatsoever; (ii) we do not advise, consult with, prepare, manage, or plan any charitable solicitation or fundraising activities; (iii) we do not create any content related to any charitable solicitations whatsoever; and (iv) we do not conduct any activities of a professional fundraiser, commercial fundraiser, commercial co-venturer, fundraising counsel, or fundraising consultant as those terms (and similar terms) are defined under state charitable solicitation laws (v) we are not a party to any pledge, purchase, or donation made using the Platform or in connection with any Storefront. We make certain technology and tools available to you through the Platform, including without limitation software that allows you to engage in independent commercial co-venture activity through sales of goods/services with the representation that a named Charitable Beneficiary will receive proceeds (each a “Charitable Sales Promotion”), email and otherwise communicate with other Users. Your use of any and all such tools is at your own discretion and risk. In no way does our providing you with such technology or tools constitute an endorsement or fundraising.
We may suspend your account and any Storefront(s) and/or sales activity, or terminate these Terms, without prior notice or liability (i) if you use the Platform in a prohibited manner or otherwise do not comply with any of the provisions of these Terms; (ii) if any law or requires us to do so; or (iii) for any reason, or for no reason.
- User Obligations
You are responsible for your relationship with the Charitable Beneficiary Users of this Platform with whom you contract. We are not responsible for the services or products you sell through the Storefront or which you publicize. You affirm that you are solely responsible for the nature and quality of the services or goods you provide through the Storefront, and for delivery, support, refunds and for any other ancillary services or obligations you have in operating the Storefront. You also acknowledge and hereby agree that you are fully, wholly responsible for any User Content you, a Charitable Beneficiary or a Purchaser posts using the Services within Platform if that content is related to your Storefront and Charitable Sales Promotion
B. Charitable Beneficiaries
Without limiting any other representation and warranty set forth in these Terms, you hereby represent and warrant that (i) you and your use of the Platform shall comply with all applicable federal, state, and local laws, rules, and regulations, including those requirements of charitable organizations engaged in charitable solicitation activity or who are the beneficiary of a Charitable Sales Promotion; and (ii) that any advertising or promotion for a Storefront is between you and the Seller. We disclaim any responsibility or liability for any obligations made on behalf of a Seller.
- User Content
Some areas of the Platform allow you and Users to post content such as profile information, comments, questions, and other content, data and materials. Any and all content, data, materials (including trademarks, logos, designs, and branding elements (together, “Your Brand Elements”)) and other information you or Users provide to Company or submit, post, display, or otherwise make available on the Platform is referred to in this Terms as “User Content”. We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Platform, you agree to allow others to view, edit, and/or share your User Content in accordance with your Platform settings and this Terms. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Platform.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be a misrepresentation, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains products, services, or content (such as music), you hereby represent that you are the owner of all inventory, such inventory is lawful to sell, and the sale of such inventory or the sale of services in no way violates any law or rights of another in and to said inventory or services, including, but not limited to, copyright rights. Company reserves the right, but is not obligated, to reject and/or remove any User Content that Company believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Platform is not a substitute for registering it with the U.S. Copyright Office or any other rights organization
For the purposes of this Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, whether a Seller or Charitable Beneficiary, including such content from any of your Purchasers or Charitable Beneficiaries (contracted with Seller in a charitable sales promotion through the Platform), you affirm, represent and warrant the following:
A. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Platform and this Terms, and each such person has released you from any liability that may arise in relation to such use.
B. Your User Content and Company’s use thereof as contemplated by these Terms and the Platform will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
C. Company may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining Terms or otherwise.
D. To the best of your knowledge, all User Content and other information that you provide to us is truthful and accurate.
Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Platform. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of User Content.
In providing our Platform, we may have access to personal information or data about our Users' end users (all of which we call "User Data"). User Data is owned and controlled by our Users, and any User Data that we maintain or process we consider to be strictly confidential. We collect and process User Data solely on behalf of our Users, and in accordance with our Terms with the Users. We do not use or disclose User Data except as authorized and required by our Users and as provided for in our Terms with our Users. By providing Company with any User Data, you hereby represent and warrant that you are in compliance with all applicable laws, including all applicable data privacy and consumer protection laws, and have all necessary rights and consents to provide Company with any and all such User Content.
- User Content License Grant
By becoming a User (Seller, Purchaser, or Charitable Beneficiary) posting any User Content on the Platform, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Platform and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels; provided that Company may use Your Brand Elements solely to provide the Platform to you if and in the manner designated by you in writing.
- Our Proprietary Rights
Except for your User Content, the Platform and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Platform, including without limitation about how to improve the Platform or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
- Order and Payment Terms
- Storefront Fees/Processing Fees. As applicable to Sellers establishing a Storefront, the Company will charge you the fees as set forth on the Pricing Page for the use of the Platform (the “Storefront Fee.”) Such fees shall be payable at the time of registration or at the time any additional storefront is created after the Seller has already registered. You will provide payment information when registering and/or creating any Storefront. We reserve the right to change our Fees and we will provide you with notice of any such change by updating these Terms. We use Pay Pal as our third party service provider for all payment services and payment processing services. By using our Service you agree to be bound by Pay Pal's Services Terms available on the PayPal website.
- Seller is solely responsible for (i) for determining what, if any, sales taxes or fees (“Taxes”) apply to Seller, your business, or your Storefront; and (ii) assessing, collecting, reporting, or remitting Taxes to the appropriate tax authority.
- You may cancel your account at any time; however, there are no refunds for cancellation. In the event that we suspend or terminate your account or these Terms, you understand and agree that you shall receive no refund.
- Charitable Gift Receipts. Purchases for items benefiting Charitable Beneficiaries are not deductible as charitable contributions for Federal or state income tax purposes.
Company cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Copyright Complaints
It is our policy to respond to theft claims, violations of law, and/or alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that a Seller is not lawfully selling goods or services or that a copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Platform, please notify Company’s agent at [:]
- Third-Party Links and Information
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Platform, including any data or content transmitted or received by you, including without limitation from Contributors; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties; (iii) your violation of any third-party right or agreement, including without limitation any charitable sales promotion agreement, any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including without limitation any and all such laws, rules or regulations related to charitable organizations and fundraising; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Platform with your unique username, password or other appropriate security code.
- No Warranties
The Platform is provided on an “as is” and “as available” basis. Use of the Platform is at your own risk. To the maximum extent permitted by applicable law, the Platform is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Company or through the Platform will create any warranty not expressly stated herein. Without limiting the foregoing, Company, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Platform will meet your requirements; that the Platform will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Platform is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Platform is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Platform.
Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a seller through the Platform or any hyperlinked website or service, and Company will not be a party to or in any way monitor any transaction between you and sellers or third-party providers of products or services, except as expressly set forth herein.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Terms will not apply to the extent prohibited by applicable law.
- Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this Platform. Under no circumstances will Company be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Platform or your account or the information contained therein.
To the maximum extent permitted by applicable law, Company assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Platform or from the use of products or services sold by sellers through the platform; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Platform; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Platform by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Platform; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Company, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Company hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Company has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
The Platform is controlled and operated from facilities in the United States. Company makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Platform if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law. This Agreement and all underlying charitable sales promotion contracts shall be subject to the laws of the State of _______________ [I’d really like to avoid Illinois law if possible. I’ll explain when we discuss]
You agree that: (i) the Platform shall be deemed solely based in Illinois; and (ii) the Platform shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Illinois. These Terms shall be governed by the internal substantive laws of the State of ___________ [prefer not Illinois), without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Illinois for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company. For any dispute with Company, you agree to first contact us at [email address for complaint resolution] and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York unless you and Company agree otherwise. If you are using the Platform for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Platform for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver.
With respect to all persons and entities, regardless of whether they have obtained or used the Platform for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Terms, you and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
We may identify you as a User in our promotional materials, including on our website.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to these Terms.
C. Entire Terms/Severability.
These Terms, together with any amendments and any additional Terms you may enter into with Company in connection with the Platform, shall constitute the entire Terms between you and Company concerning the Platform. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration Terms shall be unenforceable.
D. No Waiver.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.