“By registering for an account or submitting a
payment, you agree to the LocalGivingMall Terms of Use and Privacy Policy.”
LOCALGIVINGMALL
TERMS OF USE
Last Modified: March 1, 2018
Welcome to the LocalGivingMall website (the “Company Site”),
owned and operated by LocalGivingMall (“Company,” “we,” or “us”).
This page explains the terms by which you may use the Company Site, including
our online platform and software provided on or in connection with the service
platform (collectively, the “Platform”). By accessing or using the
Platform, or clicking a button or checking a box marked “I Agree” or something
similar, you signify that you have read, understood, and agree to be bound by
these Terms of Use (these “Terms”) and to the collection and use of your
information as set forth in the Company Privacy Policy, which is hereby incorporated by reference.
These Terms apply to all visitors, users, and others who register for or
otherwise access the Platform (“Users”).
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.
1.
Use of Our Platform
A. Eligibility
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.
B. Accounts
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. A “Charitable
Sales Promotion” is a promotion and sale made engaged in by a Seller on the
Platform where it is represented that a portion of the payment by a Purchaser for
Sellers goods or services will benefit a Charitable Beneficiary.
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, that you agree to these Terms on the entity’s behalf, and that have the
authority to bind the entity to any agreement to conduct or be the beneficiary
of a Charitable Sales Promotion.
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.
By providing Company your email address and any telephone
number, including any cellular telephone number, you consent to our using the
email address or cellular telephone number to send you Platform-related
notices, including any notices required by law, in lieu of communication by
postal mail. We may also use your email address or cellular phone number to
send you other messages, such as changes to features of the Platform and
special offers. If you do not want to receive such email messages or texts, you
may opt out by emailing us atinfo@localgivingmall.com. Opting out may prevent you from
receiving email messages regarding updates, improvements, or offers.
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[GL1] ; 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 conduct their own
Charitable Sales Promotions. Through the
Platform, Sellers may 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, commercial co-venture, or other fundraising activities; (iii) we
do not create any content related to any charitable solicitations or commercial
co-venture 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 Sellers, Charities, and Consumers through the Platform, including without
limitation software that allows Sellers to engage in independent commercial
co-venture activity through sales of goods/services with the representation
that a named Charitable Beneficiary will receive proceeds, email and otherwise
communicate with other Users. Your use of any and all such tools is at your own
discretion and risk and pursuant to your obligation to comply with any and all
applicable laws. In no way does our providing you with such technology or tools
constitute an endorsement or fundraising.
E. Termination.
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 governmental agency action
requires us to do so; or (iii) for any reason, or for no reason.
2.
User Obligations
A. Sellers
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 related to charitable solicitations or
commercial co-venture activity, and associated applicable state licensing and
registration requirements; (ii) you will comply with these Terms of Use and any
and all agreements entered into for Charitable Sales Promotions with specific
Charitable Beneficiaries through the Platform; and (iii) that you will comply
with any written request by us to you to delete certain User or Purchaser
Information in the event a User or Purchaser notifies us of such request.
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[GL2]
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, including entering into an
agreement authorizing the use of your intellectual property by the Seller in
connection with the Seller’s advertising of its Charitable Sales Promotion(s);
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.
C. Purchasers
You hereby agree that if you purchase or interact with a Seller
using the Platform, that in order to facilitate such transaction, we will
provide the Seller with certain information, or access to certain information,
including your name, email address, telephone number, billing address and
purchase amount[GL3] , and as further described in our Privacy
Policy. If you do not want your information to be shared, you should not use
the Platform. By making a purchase, you are providing consent to both Company
and Seller to collect, retain, and use your information for Company and Seller
to interact with you, including using
your email address to send you information related to your purchase and any
notices required by law. When you are submitting your payment, you may decide
whether your purchase is published and shared with the Charitable Beneficiary,
or whether you want it to be anonymous. Selecting an anonymous payment does not
mean that your name, email address, billing address and contribution amount
will not be shared with the Seller.
3.
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.
4.
User Content License Grant
By becoming a User (Seller, Purchaser, or Charitable Beneficiary)
and 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.
5.
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.
6.
Order and Payment Terms
1.
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.
2.
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.
3.
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.
4.
Charitable Gift Receipts. The distribution of funds by Sellers and the payment by
Purchasers for items benefitting Charitable Beneficiaries are not deductible as
charitable contributions for Federal or state income tax purposes. Consequently, no charitable gift receipt or
similar substantiation of a charitable contribution will be provided through
the Platform.
7.
Privacy
We care about the privacy of our Users. You understand that by
using the Platform you consent to the collection, use and disclosure of your
personally identifiable information and aggregate data as set forth in
our Privacy
Policy, and to have your
personally identifiable information collected, used, transferred to and
processed in the United States.
Security
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.
9.
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 [:]
10.
Third-Party Links and Information
The Platform may contain links to third-party materials that are
not owned or controlled by Company. Company does not endorse or assume any responsibility
for any such third-party sites, information, materials, products, or services.
If you access a third-party website or service from the Platform or share your
User Content on or through any third-party website or service, you do so at
your own risk, and you understand that these Terms and Company’s
Privacy Policy do
not apply to your use of such sites. You expressly relieve Company from any and
all liability arising from your use of any third-party website, service, or
content, including without limitation User Content submitted by other Users.
Additionally, your dealings with or participation in promotions of Sellers
found on the Platform and any other terms are solely between you and such
Seller(s) or you and such Charitable Beneficiary. You agree that Company shall
not be responsible for any loss or damage of any sort relating to your dealings
with Sellers or Charitable Beneficiaries, as applicable to you.
11.
Indemnity
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.
12.
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.
13.
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.
14.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
15.
Governing Law. This Agreement and all underlying charitable sales promotion
contracts shall be subject to the laws of the State of the Seller’s domicile.
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 the domicile of the Seller, 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.
1.
Arbitration.
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.
1.
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.
15.
Publicity
We may identify you as a User in our promotional materials,
including on our website.
16.
General
A. Assignment
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.
Company may provide notifications, whether such notifications
are required by law or are for marketing or other business related purposes, to
you via email notice, written or hard copy notice, or through posting of such
notice on our website, as determined by Company in our sole discretion. Company
reserves the right to determine the form and means of providing notifications
to our Users, provided that you may opt out of certain means of notification as
described in these Terms. Company is not responsible for any automatic
filtering you or your network provider may apply to email notifications we send
to the email address you provide us. Company may, in its sole discretion,
modify or update these Terms from time to time, including updates to pricing
and fees, and so you should review this page periodically. When we change these
Terms in a material manner, we will update the ‘last modified’ date at the
bottom of this page and notify you that material changes have been made to these
Terms. Your continued use of the Platform after any such change constitutes
your acceptance of the new Terms of Use. If you do not agree to any of these
terms or any future Terms of Use, do not use or access (or continue to access)
the Platform.
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.
E. Contact.
Please contact us at info@localgivingmall.com with any questions regarding these
Terms.