Terms of Service
Posted/Revised: October 25, 2019
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“Agreement”, “Terms,” or “Terms of Service”) CAREFULLY.
Pledgeling Technologies, Inc. (“Pledgeling”, “we”, “us”, “our” or similar terms) provides its Services (as defined below) to you subject to these Terms of Service, wherein “you” are a donor, personal or charitable fundraiser organizer (“Event Host”), beneficiary of a fundraiser, or other type of user of the Services – each also referred to herein as a “User”.
“Services” means our products and services related to our public website (“Website”) and donation forms (“Forms”), whether hosted by us or a third party, and the management sites available to donors, fundraiser beneficiaries, and event hosts. There is a separate Terms of Service (Terms of Service: Non-Public Services) that covers our Give & Grow application on the Shopify platform; tools for creating hosted forms or widgets; our application programming interfaces; our management tools for nonprofits and brands; and our back end services for donation collection and donation payment.
BY ACCESSING OR USING ANY OF OUR SERVICES IN ANY WAY, INCLUDING:
MAKING AN ONLINE PAYMENT,
SETTING UP AN EVENT HOST OR BENEFICIARY ACCOUNT,
COMPLETING ANY OTHER ACCOUNT REGISTRATION PROCESS,
CLICKING ON AN “I ACCEPT” CHECKBOX,
DOWNLOADING THE iOS APP,
AND/OR BROWSING THE WEBSITE,
YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PLEDGELING, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SERVICES. If Pledgeling, or any third party service provider acting on our behalf, at any time discovers that the information you provided about you or your use of any Service is incorrect or violates any of these Terms, the Services may be suspended and/or terminated with immediate effect.
If you are under thirteen (13) years of age, you are not authorized to use the Services, with or without registering. In addition, if you are under eighteen (18) years of age, you may only use the Services, with or without registering, with the approval of your parent or legal guardian.
If you are using the Services on behalf of an organization or entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these Terms. In that case, “you” and “your” refers to you and that Organization.
We may link to or present additional terms for certain of our Services. If you use those Services, you agree to follow our “Supplemental Terms” for such Services (and those Supplemental Terms will be deemed to be part of these Terms). In the event that those Supplemental Terms, either in whole or in part, are in conflict with any portion of these Terms, the Supplemental Terms will control with respect to such Services.
THE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
We may change or stop providing any features of the Services, or the Services themselves, at any time without any notice.
We may at our sole discretion change, add, or delete portions of these Terms at any time on a going-forward basis. It is your responsibility to check these Terms for changes prior to use of the Services, and in any event your continued use of the Services following the posting of changes to these Terms constitutes your acceptance of any changes. We will notify you of any such material changes by posting notice of the changes at https://www.pledgeling.com/terms/ and/or, in our sole discretion, by email.
How It Works
Our Services include systems that accept and process donations (“Donations”) from donors and then either
re-grant those Donations to charities and other qualifying tax-exempt organizations in the Pledgeling Foundation's database (a “Charity” or “Charities”). Pledgeling Technologies works with the Pledgeling Foundation, a registered 501(c)(3) tax-exempt public charity (the “Foundation”). The Foundation is an independent, tax-exempt nonprofit that is the initial recipient of all donations made through the Services. You first make a Donation to Foundation, and then you may make regrant recommendations for portions of that Donation to one or more Charities (each, a “Recommendation”), at which point the Foundation will, as described below, remit certain amounts to a Charity (“Regrant”); or
deliver those Donations either to the organizer of a personal fundraiser or to an individual they designate. These donations are not to the nonprofit Pledgeling Foundation and are not tax-deductible to the donor.
The Services also allow donors or Event Hosts to see their respective Donations
Pledgeling Technologies provides a platform for processing Donations and facilitating Donation transactions. We have no control over any Charity, personal fundraiser host, or donor, their conduct, or the information they provide.
We do not verify information provided by a Charity or personal fundraiser host. The personal fundraiser host creates the description of the fundraiser. Similarly, Charities are able to edit some of the information in our database and presented on our Website and to other websites using our tools. We expressly disclaim any liability or responsibility for the accuracy of information about any Charity or personal fundraiser, or whether Donations are used as described or in accordance with the law. Those responsibilities are solely with the respective Charity or personal fundraiser host.
We review Charities to ensure that they are in good standing with the Internal Revenue Service or their domestic regulatory authority. We review personal fundraisers for potential fraudulent activity, misuse of funds, or other indications that the funds will not be used as represented. If you become aware of any such behavior, please contact us via the form at http://help.pledgeling.com.
Our Website may contain pages featuring Charities to receive Regrants of Donations, but the existence of these pages on the Website or Services does not constitute a solicitation of donations.
We are not a financial, tax, or law firm. Do not rely on information we provide to assess the implications of using the Services, especially making or receiving donations. Consult your own professional advisors.
Donations to Charities and Contributions to Personal Fundraisers - General
If you are a donor, it is your responsibility to:
ensure that you are donating to the correct charity or personal fundraiser; and
understand how your money will be used; and
understand the tax, legal, and other implications of your Donations. We will email you a receipt immediately after processing indicating that your payment was to a charity or a personal fundraiser host or their designated beneficiary, but your own tax situation will determine the deductibility of any donation to a charity.
If the Event Host has set a goal, your donation will be processed (virtually immediately), whether or not the goal is met.
Charitable Donations and Regrants
Donations to Charities made through the Services are complete and final charitable gifts to the Foundation, and are not refundable. To comply with federal tax laws and Internal Revenue Service regulations, the Foundation must have exclusive authority, discretion, and legal control over all Donations.
If you are an Event Host, it is your responsibility to select the correct charity. Many organizations have similar names, or chapters operating in different regions.
The Foundation makes every reasonable effort to respect the wishes of its donors. In the unusual event that donor's recommended Charity does not satisfy the Foundation’s criteria or we are unable to reasonably deliver payment (e.g., lost IRS charity designation, suspicion of illegal activities, moved and unable to redeliver payment), the Foundation may select an alternate Charity to receive those Donations. We will attempt to find an organization with a similar mission in the same geographic area.
The amount of any Regrant will be based on the donor's Recommendation less applicable processing fees. The Foundation may pool Regrants from multiple Users together, but will generally make Regrants to the advised Charity within 45 days or less following receipt of your Recommendation, unless the combined total to be paid to the Charity is less than $20 or there are deliverability problems. Pledgeling reserves the right to establish minimum amounts and other restrctions for any Regrant.
The Services may offer a donor the ability to indicate preferences for specific use of the funds by a Charity in a Recommendation. Such preference will be noted in the communication to the Charity accompanying the Regrant, but this does not guarantee that funds will be used in a manner consistent with any such preference, and neither we nor the Foundation are responsible for or will be held liable for the ultimate handling of such preferences. You hereby acknowledge that any designation of a Donation's use is merely an expression of preference and does not give rise to any contractual obligations. Pledgeling reserves the right in its sole discretion to remove text from this field before it is provided to the designated Charity, for example, if Pledgeling deems it inappropriate, offensive or misrepresentative.
Donations to Personal Fundraisers
Donations to personal fundraisers will be refunded after no more than 90 days if the personal fundraisers host has not configured a method to transfer funds to their bank account or that of their designated beneficiary, or has failed one of our verification checks. Such refund will only be on the same card that made the original donation. We will email you when we make such a refund.
If you are making a donation to a personal fundraiser, we process your payment method immediately, whether or not the personal fundraisers host has completed setup to enable themselves to receive payments and whether or not they have reached their goal for the fundraiser.
Personal Fundraiser Hosts
If you are a personal fundraiser host:
you represent that you have truthfully described your fundraiser and warrant that any funds you receive will be used solely for the purpose you stated;
you must complete the identity, banking, and other information requests necessary to configure your account. If you do not, we will not be able to send you any donations;
you must comply with your legal and regulatory obligations, including – but not limited to – laws regarding personal or charitable solicitation, gift tax, money laundering, and political contributions;
you may request that we suspend receipt of payments and refund unpaid donations to the donors. If this functionality is not available on when you log in to our dashboard, contact us via http://help.pledgeling.com
your ability to accept payments and have funds disbursed to you or a designated beneficiary is subject to the Stripe Connected Account Agreement, available at https://stripe.com/us/connect-account/legal.
For any personal fundraiser, the first payment to the host or designated beneficiary will be deposited in their bank account approximately 10 business days after the first donation was made, subject to their having provided identity and information and completing other setup tasks. Subsequent payments will be deposited approximately 7 - 8 business days after donations are processed. These delays are subject to different time zones and US bank holidays.
We reserve the right to suspend or remove any personal fundraiser host and / or any personal fundraiser if we suspect that the related fundraiser is fraudulent, misleading, used for illegal activity, violates this Agreement or our Acceptable Use Agreement, is flagged by our own or third party anti-fraud and security checks, or for any other reason, or no reason.
You agree to pay all charges due to us, including Donations or any other charges made through your Account, at the time such payment is due and payable. You must provide Pledgeling with a valid credit card (Visa, MasterCard, or any other issuer we accept) or other payment method we make available. Your payment provider agreement governs your use of the designated credit card account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Pledgeling with your credit card number and associated payment information, you agree that Pledgeling is authorized to immediately invoice your Account for all fees and charges due and payable to Pledgeling hereunder and that no additional notice or consent is required. You agree to immediately notify Pledgeling of any change in your billing address or the credit card or PayPal account used for payment hereunder.
If you select a recurring Donation, you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT PROVIDER. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO PLEDGELING.COM.
You must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be submitted via http://help.pledgeling.com.
Use of the Services and Pledgeling Properties
Our Services and the information and content they deliver (as these terms are defined below) (collectively, the “Pledgeling Properties”) are protected by copyright and other intellectual property laws throughout the world. As between you and us, we are the sole owner of all rights, title and interest in and to the Pledgeling Properties, including any intellectual property rights contained therein. Subject to the Terms, Pledgeling hereby grants you a limited license to reproduce portions of the Pledgeling Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Pledgeling in a separate license, your right to use any Pledgeling Properties is subject to the Terms.
Use of any downloadable software (such as our mobile applications and Give and Grow add-ins for e-commerce platforms) and associated documentation (jointly, “Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Pledgeling provide you with any tangible copy of our Software. Pledgeling shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the:
delivery, installation, updating or problem resolution of any Software (including any new releases); or
delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.
Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Pledgeling hereby grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these Terms.
You understand that the Pledgeling Properties are evolving. As a result, Pledgeling may require you to accept updates to the Pledgeling Properties that you have installed on your computer or mobile device. You acknowledge and agree that Pledgeling may update the Pledgeling Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Pledgeling Properties.
The rights granted to you in the Terms are subject to the following restrictions:
you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Pledgeling Properties or any portion of the Pledgeling Properties, including the Website;
you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Pledgeling Properties (including images, text, page layout or form) of Pledgeling;
you shall not use any metatags or other “hidden text” using Pledgeling’s name or trademarks;
you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Pledgeling Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law;
you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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);
access the Pledgeling Properties in order to build a similar or competitive website, application or service;
except as expressly stated herein, no part of the Pledgeling Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and
you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Pledgeling Properties. Any future release, update or other addition to the Pledgeling Properties shall be subject to the Terms. Pledgeling, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Pledgeling Properties terminates the licenses granted by Pledgeling pursuant to the Terms.
As a part of the Pledgeling Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Pledgeling to monitor such materials and that you access these materials at your own risk.
When you use our Services on a mobile device, we may also collect location information from the GPS functionality on your device. You hereby authorize us and our Services to take such actions and access such data. You hereby authorize the Application to access such components of your mobile device. You can grant or revoke your consent at any time and prevent us from continuing to access your GPS information by changing the settings on your device.
Registration and Your Account
Registering Your Account
In order to access certain features of the Pledgeling Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account (“Account”) or has a valid account on the social networking service (“SNS”) such as Google, Twitter, Facebook, or LinkedIn through which the User has connected to the Services (each such account, a “Third-Party Account”).
Access Through a SNS
If you access the Services through a SNS as part of the functionality of the Services or otherwise connect your Third-Party Account to our Services, you may link your Account with Third-Party Accounts, by allowing Pledgeling to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Pledgeling access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Pledgeling to pay any fees or making Pledgeling subject to any usage limitations imposed by such third-party service providers. By granting Pledgeling access to any Third-Party Accounts, you understand that Pledgeling may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Pledgeling Properties (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Pledgeling Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined below) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Pledgeling Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Pledgeling’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Pledgeling Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND PLEDGELING DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Pledgeling makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Pledgeling is not responsible for any SNS Content.
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Pledgeling Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Pledgeling Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Pledgeling immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Pledgeling has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Pledgeling has the right to suspend or terminate your Account and refuse any and all current or future use of the Pledgeling Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Pledgeling reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Pledgeling Properties if you have been previously removed by Pledgeling, or if you have been previously banned from any of the Pledgeling Properties.
Necessary Equipment and Software
You must provide all equipment and software necessary to connect to the Pledgeling Properties, including but not limited to, a mobile device that is suitable to connect with and use the Pledgeling Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Pledgeling Properties.
Responsibility for Content
Types of Content
You acknowledge that all Content, including the Pledgeling Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Pledgeling, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Pledgeling Properties (“Your Content”), and other Users of the Pledgeling Properties, and not Pledgeling, are similarly responsible for all Content they Make Available through the Pledgeling Properties (“User Content”).
No Obligation to Pre-Screen Content
You acknowledge that Pledgeling has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Pledgeling reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Pledgeling pre-screens, refuses or removes any Content, you acknowledge that Pledgeling will do so for Pledgeling’s benefit, not yours. Without limiting the foregoing, Pledgeling shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed to by Pledgeling in writing elsewhere, Pledgeling has no obligation to store any of Your Content that you Make Available on the Pledgeling Properties. Pledgeling has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Pledgeling Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Pledgeling retains the right to create reasonable limits on Pledgeling’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Pledgeling in its sole discretion.
Except with respect to Your Content and User Content, you agree that Pledgeling and its suppliers own all rights, title and interest in the Pledgeling Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, or the Pledgeling Properties.
Pledgeling and other related graphics, logos, service marks and trade names used on or in connection with the Pledgeling Properties or in connection with the Services are the trademarks of Pledgeling and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Pledgeling Properties are the property of their respective owners.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Pledgeling Properties.
Pledgeling does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Pledgeling Properties, you represent and warrant that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
License to Your Content
Subject to any applicable account settings that you select, you grant Pledgeling a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Pledgeling Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Pledgeling, are responsible for all of Your Content that you Make Available on or in the Pledgeling Properties.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Pledgeling Properties, you hereby expressly permit Pledgeling to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Pledgeling.
Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Pledgeling through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Pledgeling 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 Pledgeling a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Pledgeling Properties.
You agree to comply with our Acceptable Use Policy.
You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Pledgeling Properties (including your Account), or access to or use of the Pledgeling Properties;
Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Use the Pledgeling Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation;
Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or
Market any goods or services for any business purposes.
Pledgeling may, but is not obligated to, monitor or review the Pledgeling Properties and Content at any time. Without limiting the foregoing, Pledgeling shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Pledgeling does not generally monitor user activity occurring in connection with the Pledgeling Properties or Content, if Pledgeling becomes aware of any possible violations by you of any provision of the Terms, Pledgeling reserves the right to investigate such violations, and Pledgeling may, at its sole discretion, immediately terminate your license to use the Pledgeling Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users
You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Pledgeling reserves the right, but has no obligation, to intercede in such disputes. You agree that Pledgeling will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users
The Pledgeling Properties may contain User Content provided by other Users. Pledgeling is not responsible for and does not control User Content. Pledgeling has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
Pledgeling does check the backgrounds of Charities, via independent third party services using federal tax identification numbers. However, it cannot guarantee that all Charities are and will be who they say they are. NEITHER PLEDGELING NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY CHARITY IN THE SERVICE.
Third-Party Websites & Ads
The Pledgeling Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Pledgeling Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Pledgeling, and Pledgeling is not responsible for any Third-Party Websites. Pledgeling links to these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Pledgeling and not with the App Store. Pledgeling, not the App Store, is solely responsible for the Pledgeling Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Pledgeling Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Pledgeling Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
Subject to your compliance with the Terms, in the event Pledgeling offers a mobile application, Pledgeling grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Without limiting the foregoing, the following applies to any App Store Sourced Application:
You acknowledge and agree that
the Terms are concluded between you and Pledgeling only, and not Apple, and
Pledgeling, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Pledgeling and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pledgeling.
You and Pledgeling acknowledge that, as between Pledgeling and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to:
product liability claims;
any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and
claims arising under consumer protection or similar legislation.
You and Pledgeling acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Pledgeling and Apple, Pledgeling, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
You and Pledgeling acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
You agree to indemnify and hold Pledgeling, its parents, subsidiaries, affiliates and the Foundation, and their officers, employees, agents, partners and licensors (collectively, the “Pledgeling Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of:
your use of, or inability to use, the Pledgeling Properties;
your violation of the Terms;
your violation of any rights of another party, including any Users; or
your violation of any applicable laws, rules or regulations.
Pledgeling reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Pledgeling in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Pledgeling Properties.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLEDGELING PROPERTIES IS AT YOUR SOLE RISK, AND THE PLEDGELING PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PLEDGELING PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE PLEDGELING PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT:
THE PLEDGELING PROPERTIES WILL MEET YOUR REQUIREMENTS;
YOUR USE OF THE PLEDGELING PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE;
THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLEDGELING PROPERTIES WILL BE ACCURATE OR RELIABLE; OR
ANY ERRORS IN THE PLEDGELING PROPERTIES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLEDGELING PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLEDGELING PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PLEDGELING MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PLEDGELING OR THROUGH THE PLEDGELING PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Pledgeling may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Pledgeling’s sole discretion. The provisions of this section apply with full force to such features or tools.
No Liability for Conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT THE PLEDGELING PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PLEDGELING PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. PLEDGELING MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS.
No Liability for Conduct of Other Users
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLEDGELING PROPERTIES. YOU UNDERSTAND THAT PLEDGELING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLEDGELING PROPERTIES. PLEDGELING MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLEDGELING PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLEDGELING PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLEDGELING PROPERTIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. YOU ACKNOWLEDGE AND AGREE THAT PLEDGELING DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.
Limitation of Liability
Disclaimer of Certain Damages
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL PLEDGELING PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLEDGELING PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT PLEDGELING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLEDGELING PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE PLEDGELING PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE PLEDGELING PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLEDGELING PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE PLEDGELING PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability
UNDER NO CIRCUMSTANCES WILL THE PLEDGELING PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).
THE PLEDGELING PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Basis of the Bargain
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PLEDGELING AND YOU.
EXCLUSION OF DAMAGES
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Procedure for Making Claims of Copyright Infringement
It is Pledgeling’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Pledgeling by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Pledgeling Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Pledgeling Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Pledgeling’s Copyright Agent for notice of claims of copyright infringement is as follows: Pledgeling Technologies, 2100 Abbot Kinney Blvd, Unit E, Venice, CA 90291, Attn: General Counsel or legal@pledgeling,com.
Term and Termination
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Pledgeling Properties, unless terminated earlier in accordance with the Terms.
Notwithstanding the foregoing, if you used the Pledgeling Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Pledgeling Properties (whichever is earlier) and will remain in full force and effect while you use the Pledgeling Properties, unless earlier terminated in accordance with the Terms.
Termination of Services by Pledgeling
Pledgeling reserves the right to modify, suspend or terminate any Services provided to you at any time for any reason. You agree that all terminations for cause shall be made in Pledgeling’s sole discretion and that Pledgeling shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You
If you want to terminate the Services provided by Pledgeling, you may do so by (a) notifying Pledgeling at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Pledgeling's address set forth below.
Effect of Termination
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Pledgeling will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
If Pledgeling becomes aware of any possible violations by you of the Terms, Pledgeling reserves the right to investigate such violations. If, as a result of the investigation, Pledgeling believes that criminal activity has occurred, Pledgeling reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Pledgeling is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Pledgeling Properties, including Your Content, in Pledgeling’s possession in connection with your use of the Pledgeling Properties, to:
comply with applicable laws, legal process or governmental request;
enforce the Terms,
respond to any claims that Your Content violates the rights of third parties,
respond to your requests for customer service, or
protect the rights, property or personal safety of Pledgeling, its Users or the public, and all enforcement or other government officials, as Pledgeling in its sole discretion believes to be necessary or appropriate.
In the event that Pledgeling determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Pledgeling Properties, Pledgeling reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Pledgeling) that you have violated the Terms;
Delete any of Your Content provided by you or your agent(s) to the Pledgeling Properties;
Discontinue your registration(s) with the any of the Pledgeling Properties, including any Services or any Pledgeling community;
Discontinue your subscription to any Services;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Pledgeling deems to be appropriate.
No Subsequent Registration
If your registration(s) with or ability to access the Pledgeling Properties, or any other Pledgeling community is discontinued by Pledgeling due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Pledgeling Properties or any Pledgeling community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Pledgeling Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Pledgeling reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
The Pledgeling Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Pledgeling intends to announce such Services or Content in your country. The Pledgeling Properties are controlled and offered by Pledgeling from its facilities in the United States of America. Pledgeling makes no representations that the Pledgeling Properties are appropriate or available for use in other locations. Those who access or use the Pledgeling Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
The communications between you and Pledgeling use electronic means, whether you visit the Pledgeling Properties or send Pledgeling e-mails, or whether Pledgeling posts notices on the Pledgeling Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Pledgeling in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pledgeling provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release the Pledgeling Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Pledgeling Properties, including but not limited to, any interactions with or conduct of other Users or Third-Party Websites of any kind arising in connection with or as a result of the Terms or your use of the Pledgeling Properties. 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.”
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Pledgeling’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Pledgeling 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.
If you believe that Pledgeling has not adhered to the Terms, please contact Pledgeling by emailing email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
YOU AND PLEDGELING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE PLEDGELING PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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:
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;
all arbitration proceedings shall be held in English;
the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and
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, Pledgeling 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 California 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 Pledgeling Properties.
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”).
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.
You and Pledgeling must abide by the following rules:
ANY CLAIMS BROUGHT BY YOU OR PLEDGELING MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING;
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;
in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Pledgeling 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;
Pledgeling also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration;
the arbitrator shall honor claims of privilege and privacy recognized at law;
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;
the arbitrator may award any individual relief or individual remedies that are permitted by applicable law;
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.
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 Section 13 of the 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 California law or United States federal law.
Notwithstanding the foregoing, either you or Pledgeling 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 Hollywood, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Hollywood, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Hollywood, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
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 Pledgeling 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 Hollywood, California. By using the Pledgeling Properties 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.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Choice of Language
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Where Pledgeling requires that you provide an e-mail address, you are responsible for providing Pledgeling with your most current e-mail address. In the event that the last e-mail address you provided to Pledgeling is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Pledgeling’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pledgeling at the following address: Pledgeling Technologies, 2100 Abbot Kinney Blvd, Unit E, Venice, CA 90291. Such notice shall be deemed given when received by Pledgeling by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
You may not use, export, import, or transfer the Pledgeling Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Pledgeling Properties, and any other applicable laws. In particular, but without limitation, the Pledgeling Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Pledgeling Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Pledgeling Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Pledgeling are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Pledgeling products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
The following provisions shall apply only if you are located in the countries listed below.
A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Notwithstanding anything to the contrary in Section 13, Pledgeling is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).