TERMS AND CONDITIONS
"It is good to obey all the rules when you're young, so you'll have the strength to break them when you're old."
DonorTiles Terms and Conditions
Effective February 6, 2016
To be eligible to use the services and access the site, you must: (1) be at least 18 (or between the ages of 13 and 17 and using the site and services with parental or legal guardian consent and supervision); (2) be registered with us (to the extent required) and not have been previously restricted, suspended or terminated by us; and (3) not be using another member’s account without her/his permission.
- 1. Our role. The purpose of our site and services is to help non-profit organizations thank people for donations and other forms of support given, better engage their supporters, raise money and attract new supporters, but we do not pick or endorse any such organizations or any of their campaigns or causes. We merely provide a technology platform to allow non-profits to connect with their supporters. The existence of the site or services is not a solicitation of donations by DonorTiles, and DonorTiles does not engage in any solicitation activities.
- 2. Becoming a Member. It is easy to become a member of our community by following the steps on the site or app. An individual signs up as a Donor User, and a non-profit gets signed up as an Organization User. You may only sign up for an account on behalf of a non-profit if you have the legal authority to bind that entity or organization. You will be required to provide some information when you sign up, including an email address to receive any notices required by law, in lieu of communication by postal mail, along with other messages, including changes to features of the service.
- 3. User Names. You may need a username and password to use certain features of the site and services. By selecting a user name you agree that you will not select or use a name: (a) of another person with the intent to impersonate that person; (b) subject to the rights of any person without authorization; (c) in violation of the intellectual property rights of any person; or (d) that DonorTiles, in its sole discretion, deems inappropriate or offensive. You hereby expressly permit DonorTiles to identify you by your user name (which may be a pseudonym). You acknowledge and agree that you shall have no ownership or other property interest in your account and/or user name, and you further acknowledge and agree that all rights in and to your user name and account are and shall forever be owned by and inure to the benefit of DonorTiles. You are responsible for maintaining the confidentiality of your password and account, and are responsible for all activities (whether by you or by others) that occur under your password or account. You will notify DonorTiles immediately of any unauthorized use of your password or account or any other breach of security. DonorTiles assumes no liability for any loss or damage arising from any unauthorized use of your password or account by a third party. DonorTiles has the right to reclaim any user names for any reason.
- 4. Accurate Information. You agree to: (a) provide accurate information as prompted on the site or through the services; and (b) maintain and update such information to keep it accurate. If you provide any information that is inaccurate, or DonorTiles has reasonable grounds to suspect that such information is inaccurate, DonorTiles may suspend or terminate your use of the services and/or the site and/or decline to permit your continued use of the site and/or the services and future access to the site and/or the services.
- 6. Relationship of DonorTiles. By using this site you understand and agree that DonorTiles shall not be responsible for any losses or damages incurred as a result of the fundraising campaigns or events. In the event of a dispute between users (including but not limited to non-profit fundraisers, donors, beneficiaries, and third parties), you hereby release DonorTiles, its employees, agents, affiliates, directors, officers, representatives, subcontractors, advisors and volunteers from all claims, damages and demands that may or may not be known, suspected or related to such disputes about our service.
- Additional Terms for Non-Profit Organizations
- Any Non-profit Organization (Non-profit) that registers as a member that runs campaigns and uses the site is subject to the following additional terms.
- By using DonorTiles’s services, you represent and warrant that: (a) you have and will maintain tax-exempt status under section 501(c)(3) of the Internal Revenue Code, (b) you are raising money for a cause or activity that is legal under all applicable federal, state and local laws and regulations; and (c) you will use all donated funds solely for the purpose you have stated on the site, and under no circumstances may you use the funds for any other purpose.
- DonorTiles offers a few different subscription and usage options to Non-profits, each with its own fee structure. DonorTiles's fees are explained on our pricing page, which is incorporated by reference into these terms, and in the Fees section further below. If a Non-profit selects a usage option that includes a monthly subscription fee, that account will renew automatically unless the Non-profit provides at least thirty (30) days’ notice that they do not wish to renew their subscription. By signing up for any such plan, the Non-profit agrees that the account will be subject to this automatic renewal feature and all applicable fees unless and until a permitted cancellation. All fees are non-refundable for the then-current subscription period. The Non-profit hereby authorizes us to charge the account and billing method on file for all applicable fees under the subscription account.
- Additional Terms for Donors
- Any individual, entity or organization that registers as a member and donates funds through the site or the services (“Donor Users”) is subject to the following additional terms of these terms that apply specifically to Donor Users.
- 1. Donor User’s Risk. All donations are at your own risk. Please make sure that when you donate to a given Non-profit that you understand how your money will be used. When donating, only donate to those Non-profits that you feel comfortable donating to or otherwise know and trust. DonorTiles does not warrant that funds will be used for any particular purpose and is not responsible for any misuse of the funds by the beneficiary. Although DonorTiles will attempt to verify that only legitimate non-profit organizations participate on DonorTiles’s site or services, DonorTiles will not be responsible if a participating organization misrepresents itself in any way to DonorTiles or Donor Users.
- 2. Donor User Commitments. By donating money through the site, you represent and warrant that any donation you make is legal in your jurisdiction and that you are authorized to use the payment method you have selected. Each donor agrees and acknowledges that: (i) all donations to Non-profits are made as unrestricted gifts and may not be restricted to any particular purpose; (ii) designated donation and registration amounts and Processing Fees will be charged to the credit or debit card or other payment method you use through WePay; and (iii) all donations are final and non-refundable.
- 3. Our Partnership with WePay. DonorTiles has partnered with WePay to make donating to Non-profits easy and seamless. All Non-profits will use WePay to process donations made through the site. When WePay processes a donation through the site, the donation will go directly from the donor to the non-profit's WePay merchant account. Donations will appear on the Donor User’s credit card statement under the name of the non-profit to whom they contributed.
- 4. Tax Deductions. DonorTiles makes no representation as to whether all or any portion of Donor User donations, including, if any, processing fees, are tax deductible. DonorTiles will have no liability for any claim by any federal, state, local or any other tax authority with respect to the characterization on any applicable tax return of any donation by a Donor User, any DonorTiles user or any Non-profit.
- 1. Transaction Fees On Donations. When a donation is made through DonorTiles, a transaction fee is deducted from it. These fees are set forth here on our pricing page, which is incorporated by reference into these terms. These fees paid by donors help DonorTiles offer lower pricing to fundraisers by covering DonorTiles’s and Non-profits’ costs.
- 2. Chargebacks and Refunds. Occasionally a donor may dispute a credit card charge for a donation through the DonorTiles site or app. Because such donations were made through WePay, the Non-profit has sole control over the donations and is responsible for issuing refunds and handling chargebacks. All issues concerning chargebacks and refunds will be addressed by WePay and not DonorTiles. WePay charges $15.00 for each chargeback and ACH return.
- General Terms
- 1. Ownership of the site, site information and services. The site and services and all technology underlying the same are expressly owned and operated by DonorTiles. Unless otherwise noted, the design and content features on the site and services, including without limitation, information and other materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software, URLs, and the like, as well as the selection, assembly and arrangement thereof (collectively, the "Site Information"), are owned by DonorTiles or its affiliates, if any, or are licensed by DonorTiles from third parties. The site and services, as a whole and in part, are protected by copyright, trademark, service mark, trade name, and other intellectual property and proprietary rights, and all other applicable rights are reserved.
- A. The trademarks, logos, and service marks ("Marks") displayed on the site are registered trademarks of their respective owners, are the property of their respective owners, and/or are protected by U.S. and international trademark laws and/or common law. Their uses are restricted to programs, events, products or services that DonorTiles sponsors or with which we are otherwise affiliated. DonorTiles's trademarks may not be used for personal financial gain. Use of the Marks is prohibited without DonorTiles's express written consent except as permitted by applicable laws. Nothing contained on the site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Marks without DonorTiles's express written consent.
- B. No portion of the site, services or Site Information may be reprinted, republished, modified, or distributed in any form without DonorTiles's express written permission. You may not, and these terms do not give you permission to, reproduce, reverse engineer, decompile, disassemble, modify, transmit, sell, distribute, license or create derivative works with respect to the site, services or any of the Site Information.
- C. You may not remove any copyright, trademark or other intellectual property or proprietary notice or legend contained on the site, services, or the Site Information and you must retain all copyright, trademark, service mark and other proprietary notices contained on the site, services or in the original Site Information on any authorized copy you make of the site, services or the Site Information.
- 2. Widgets. Our widgets are software tools that you may place on your website to permit your visitors to access our Website (each, a “Widget”). Subject to your compliance with the terms, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable license to use and display the Widget on your website for your own personal or internal business purposes. We reserve the right to discontinue providing any Widget at any time, or to direct you to cease displaying, or otherwise using, any Widget for any or no reason, without liability to you or any third party. You may not use the Widget for any other purpose without our prior written consent, and nothing in the terms shall be deemed to grant you any right, title or interest in the Widget. In addition, you may not:
- A. Use the Widget to offer or promote, or otherwise use the Widget in association with, any products or services for sale;
- B. Use the Widget (or any content displayed in connection with or through it) in any manner that would constitute an endorsement by us of any product, service, activity or brand contained on your website;
- C. Place the Widget on any website that includes content that is offensive, harassing, threatening, abusive, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by us in our sole discretion; or
- D. Use the Widget in any manner that prevents the end users of your website from linking directly to the application page of our site.
- 3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to DonorTiles through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that DonorTiles 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 DonorTiles 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.
- 4. Use of Site. The site, services and the Site Information are provided "as is" with all faults. Your use of the site, services, and the Site Information is at your own risk. The site, services or Site Information may contain errors or omission, or may be out of date. The site, services or Site Information may, without prior notice, change, be deleted or updated at any time. As a condition of your use of the service or the site, you promise to:
- A. Use the service in compliance with all laws, regulations, ordinances, directives, court orders and this Agreement local and applicable to your use of the site and services;
- B. Use the service so as not to damage, disable, overburden or impair the service, our networks or systems or not to interfere with any others’ legal rights or use or enjoyment of the service; and
- C. Not engage in, or encourage, promote, facilitate or instruct others to engage in, activities which, in our judgment and discretion: (1) are illegal; (2) result in the infringement of the intellectual property rights of others or libel or defamation of another person; or (3) harvest or otherwise collect information about others (such as e-mail addresses or other personally identifiable information) without their consent.
- 5. Promotions. You are not permitted to offer any contest, competition giveaway, sweepstakes or similar activity (each, a "Promotion") on DonorTiles without our prior written consent. You may seek permission by sending an email to email@example.com. If we consent, you take full responsibility for the Promotion, and you agree that: (a) such Promotion shall comply with all applicable laws; (b) you are solely responsible for all facets of the Promotion; (c) you may not use the Marks or any other DonorTiles intellectual property in the rules or any other materials relating to the Promotion, without DonorTiles's express written permission; (d) such Promotion does not require making a donation as the only way to enter; (e) such Promotion is not marketed to anyone under the older of the age of 18 or the age of majority for the state in which you reside; and (f) such Promotion may not endorse, sponsor or promote anything related to gambling, alcohol, illegal or prescription drugs, pornography, or tobacco. You will include the following provisions within your official rules for any Promotion that you choose to administer or publicize on the site: (i) DonorTiles does not sponsor, endorse or administer the Promotion; (ii) each participant or entrant in the Promotion releases DonorTiles from any and all liability and (iii) all questions concerning the Promotion must be directed to you and not to DonorTiles.
- 6. Content. When you are using the site and/or the services, you will have the opportunity to post, stream, transmit or otherwise provide photos, videos, ideas, remarks, questions, data, graphics, opinions, designs, customizations, or other content (including information, if any, on message boards, friend feeds, comments or other forums on the site or through the services (collectively "User Generated Content"). You alone, not DonorTiles, are responsible for all of your User Generated Content and you retain ownership to all User Generated Content.
- However, by submitting your User Generated Content to DonorTiles, you grant DonorTiles and its other users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute User Generated Content on DonorTiles solely for the purposes of operating, developing, providing, and using the DonorTiles platform. Nothing in these terms shall restrict other legal rights DonorTiles may have to User Content, for example under other licenses.
- A. You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Generated Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. In addition, you represent and warrant that you will not:
1. provide User Generated Content that is obscene, indecent, defamatory, libelous, unlawfully threatening or unlawfully harassing, or infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
2. create any liability for DonorTiles or cause us to lose (in whole or in part) the services of our Internet Service Provider(s), web hosting company or any other vendors or suppliers;
3. engage in any conduct that, in DonorTiles's sole judgment and discretion, restricts or inhibits any other user from using or enjoying the site or services;
4. use the site or services to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
5. interfere with or disrupt any servers or networks used to provide the site or services or their respective features, or disobey any requirements of the networks DonorTiles uses to provide the site or services;
6. gain unauthorized access to the site, or any account, computer system, or network connected to this site or services, by any unauthorized or illegal means;
7. obtain or attempt to obtain any materials or information not intentionally made available through the site or services;
8. use the site or services to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising, except that using the site or services for fundraising activities is expressly permitted;
9. engage in advertising or commercial solicitation of any product or service without DonorTiles's written consent, except that using the site or services for fundraising activities is expressly permitted;
10. gather for marketing purposes any email addresses or other personal information that has been posted by other users;
11. post any identification documents or sensitive information about another person.
12. create a fundraising campaign involving legal disputes or legal issues or child custody issues.
- A. You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Generated Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. In addition, you represent and warrant that you will not:
- B. DonorTiles shall have the right, but no obligation, to monitor User Generated Content and other features of the site and services to determine compliance with these terms and any other operating rules we establish. DonorTiles shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted through the site or services. We do not control any User Generated Content that you or other users may provide. DonorTiles neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement on the User Generated Content, whether it is provided by DonorTiles, our employees, or a third party.
- C. Under no circumstances will DonorTiles be liable for any loss or damage of any kind caused by reliance on information obtained through User Generated Content of the site or services. DonorTiles is not responsible for any offensive, defamatory, obscene or any other posting made through the site or services. We reserve the right at all times to disclose any information we believe necessary to satisfy any law, regulation or governmental request, or to refuse to post or to remove any information or materials, in whole or in part, that in DonorTiles's sole discretion is inappropriate, objectionable or in violation of these terms. Any user who feels that a posted message is objectionable is encouraged to Contact Us immediately by email to firstname.lastname@example.org.
- D. DonorTiles is a provider of an interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. §230 and expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on the site or through the services.
- 7. Digital Millennium Copyright Act; Copyright Complaints. DonorTiles respects the intellectual property rights of others and requires those that visit the site and use our network to do the same. DonorTiles may, in appropriate circumstances and at our discretion, remove or disable access to material on the site or our network that infringes upon the copyright rights of others. DonorTiles also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any visitors to the site or users of our network repeatedly infringe on others' copyrights, DonorTiles may in its sole discretion terminate those individuals' rights to use the site or our network. If you believe that your work has been used on our site or network in any manner that constitutes copyright infringement, please notify DonorTiles's by written notice. The notice should include the following information:
- A. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
- B. description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
- C. Identification of the location on the site of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
- D. Your name, address, telephone number and email address;
- E. Statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner or the law; and
- F. statement by you that the information in this notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner's behalf.
- 8. Suspension or Termination of Your Use of the Site. These Terms will commence on the date you accept them (as described above) and remain in full force and effect until terminated in accordance with this section. Notwithstanding the foregoing, if you used the site or services prior to the date you accepted the terms, you hereby acknowledge and agree that the terms commenced on the date you first used the site or services (whichever is earlier) and will remain in full force and effect while you use the site or services, unless earlier terminated in accordance with the terms. DonorTiles has the right to suspend or terminate any services provided to you at any time with or without reason. You agree that all terminations for cause shall be made in DonorTiles’s sole discretion and that DonorTiles shall not be liable to you or any third party for any termination of your account. If you want to terminate any services provided by DonorTiles, you may do so by notifying DonorTiles at any time, with your notice sent, in writing, to our address set forth below. Termination of any service includes removal of access to such service and barring of further use of the service, provided that any donations made prior to the effective date of termination will continue to be processed. 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.
- 9. No Endorsement of Links to Other Web Sites. Any links to other websites are provided as merely a convenience to you. This site and the services may provide links or references to other websites but DonorTiles has not reviewed all of these other websites, has no responsibility for the content of such other websites and shall not be liable for any damages or injury arising from the content from these other websites. You understand that, except for information, products or services clearly identified as being supplied by DonorTiles, we do not operate, control or endorse any information, products or services on the Internet in any way. DonorTiles does not endorse or make any representations about these other websites, or any information or other products or materials found on these other websites, or any results that may be obtained from using these other websites. If you decide to access any of these other websites linked to this site, you do so entirely at your own risk.
- 1. Indemnification. You agree to indemnify, defend and hold DonorTiles and its affiliates, if any, officers, directors, employees and agents, harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorney's fees) resulting from: (a) your use, misuse or abuse of the site, services or the Site Information; (b) your User Generated Content; or (c) your breach of any provision of these terms. You will cooperate as fully as reasonably required in DonorTiles's defense of any claim. DonorTiles reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any matter without DonorTiles's written consent.
- 2. DISCLAIMER. YOU ACKNOWLEDGE THAT YOU ARE USING THE SITE AND THE SERVICES AT YOUR OWN RISK. THE SITE, THE SITE INFORMATION AND THE SERVICES ARE PROVIDED "AS IS," AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, DONORTILES, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS AND VENDORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, COMPLETENESS OR RELIABILITY, TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. DONORTILES, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS, AND VENDORS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SITE, THE SITE INFORMATION OR THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS, OR LOSS OR SECURITY BREACH OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH ACCESS TO OR USE OF SITE, SERVICES OR SITE INFORMATION. DONORTILES ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, ANY USER GENERATED CONTENT) OR USER COMMUNICATIONS.
- 3. LIMITATION ON LIABILITY. DONORTILES, ITS AFFILIATES AND ITS SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS, AND VENDORS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS, ANY DONATIONS THROUGH THE SITE, YOUR ACCESS TO OR INABILITY TO ACCESS THE SITE OR ITS SERVICES OR THE SITE INFORMATION, INCLUDING WITHOUT LIMITATION FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICES, YOUR USE OF OR RELIANCE ON THE SERVICES, THE SITE INFORMATION OR MATERIALS AVAILABLE THROUGH THIRD PARTY SITES LINKED TO SITE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL DONORTILES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50.00). YOU AND DONORTILES AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SITE OR SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
- 4. RELEASE. YOU HEREBY AGREE TO RELEASE DONORTILES, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND THIRD-PARTY SERVICE PROVIDERS, SUPPLIERS AND VENDORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (COLLECTIVELY, "CLAIMS"), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THIS SITE AND ITS SERVICES OR THE SITE INFORMATION. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- 5. Security of the Site. DonorTiles maintains reasonable safeguards and personnel policies that are designed to guard the site, the services, our systems and our organizations’ and donors' and information. For example, for the security of your online visit to the site, DonorTiles may make use of firewall barriers, encryption techniques and/or authentication procedures. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. As a result, while DonorTiles strives to protect your information, it cannot ensure or warrant the security of any Content you transmit to us, and you do so at your own risk. In the event of a breach of the confidentiality or security of your personal information, DonorTiles will notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using the email address you provided to us when you registered with the site.
- 1. Electronic Communications. When you visit the site, use the services or send emails to DonorTiles, you are communicating with us electronically. You consent to receive communications from DonorTiles electronically. DonorTiles may communicate with you by email or by posting notices on the site. You agree that all agreements, notices, disclosures and other communications that DonorTiles provides to you electronically satisfy any legal requirement that such communications be in writing. You may give notice to DonorTiles at the following address: Barton Oaks Plaza One, Suite 300, 901 S. Mopac, Austin, TX 78746. Such notice shall be deemed given when received by DonorTiles by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- 2. Jurisdiction and Governing Law. You agree that these terms, for all purposes, shall be governed and construed in accordance with the laws of the State of Texas, without giving effect to its conflicts of laws provisions. In addition:
- A. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, the DonorTiles may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Texas law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the site or services.
- B. Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
- C. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- D. You and DonorTiles must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR DONORTILES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, DonorTiles will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) DonorTiles also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
- E. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. 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 will not have authority to award damages in excess of the amount, or other than the types, allowed by these terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Texas law or United States federal law. Notwithstanding the foregoing, either you or DonorTiles may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Texas. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Texas, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Texas for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- F. With the exception of D (i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either D (i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor DonorTiles shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Texas. By using the site or services in any manner, you agree to the above arbitration provision. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- 3. Site is for Use in the United States. The site is hosted in the United States and is intended for users located in the United States. If you are a non-U.S. user of site, by visiting the site, using the services and/or providing DonorTiles with any User Generated Content specifically or Content generally, you agree to comply with all federal and state U.S. laws governing the site, the services, online conduct and acceptable Content and User Generated Content. You further agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.
- 5. Modification of the terms. In DonorTiles's sole discretion, we may unilaterally amend or modify these terms or any other documents referenced herein at any time by posting on the site. The date of the most recent revision will appear at the top of this page. If DonorTiles has a working email contact for you and the changes to the terms are material, DonorTiles may notify you of such changes by sending you an email to the address you have provided to us. DonorTiles encourages you to review these terms periodically for any updates or changes. Any amended or modified terms will be effective upon posting, at the time set forth in an email notice to you or as otherwise decided in DonorTiles's sole discretion and as posted to the site. Continued use of the site constitutes acceptance of any modified terms and conditions.
- 6. Additional Terms. DonorTiles also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the site, which may be posted in the relevant parts of the site, and will be identified clearly and conspicuously. For example, DonorTiles may post additional rules to participate in a promotion. Your continued use of the site constitutes your agreement to comply with these additional rules. Those terms will control in the event of any conflict with these terms.
- 7. Miscellaneous Other Provisions.
- A. In the event that one or more portions of these terms shall, for any reason, be held to be unenforceable, the remaining portion will remain in full force and effect.
- B. The headings used throughout these terms are solely for convenience of reference and are not to be used as an aid in the interpretation of these terms.
- C. If DonorTiles fails to enforce any parts of these terms, it will not be considered a waiver.
- D. These terms make up the entire agreement between you and DonorTiles regarding the site and supersede any prior agreements.
- E. These terms do not confer any third party beneficiary rights.
- F. You will not assign or transfer any of your rights or responsibilities under these terms to anyone without DonorTiles's express written permission.
- G. DonorTiles may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
- H. Nothing in these terms shall prevent DonorTiles from complying with the law.
- I. DonorTiles shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, 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