Terms of Service — Donations
Posted/Revised: March 1, 2020
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“Agreement”, “Terms,” or “Terms of Service”) CAREFULLY BEFORE PARTICIPATING IN THE SERVICES (DEFINED BELOW), AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US. THIS TERMS OF SERVICE REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS, JURY TRIALS, OR CLASS ACTIONS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
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, 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. It also encompasses, but it not limited to, our content, data, and donation processing functionality.
BY ACCESSING OR USING ANY OF OUR SERVICES IN ANY WAY YOU REPRESENT AND WARRANT 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.
This Agreement incorporates our Acceptable Use Policy, available at https://www.pledgeling.com/terms/.
We know that your privacy is important, so we created a privacy policy that describes our collection, use and disclosure practices regarding any personal information that you provide to us: it is available at https://www.pledgeling.com/privacy. You understand and agree that while we take reasonable steps to ensure the safety of your personal information, such steps do not guarantee that the Services are invulnerable to all security breaches or immune from security threats or other vulnerabilities. We reserve the right to cooperate with international, federal, national, local, state, and provincial and territorial authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information.
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.
Our Role
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 also use independent third party services and regulator’s data to check the eligibility of Charities to receive regranted donations. However, we 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.
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.
Your Role
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.
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 restrictions 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.
Payments
Payment
You agree to pay all charges due to us, including Donations, 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 charge your card for all fees and charges due and payable to Pledgeling hereunder and that no additional notice or consent is required.
Recurring Donations
If you select a recurring Donation, you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (MONTHLY, QUARTERLY, OR ANNUAL) 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.
Payment Disputes
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.
Our Fees
Payment Card Processing
Any payment to us made via a payment card, whether intended for a charitable organization or personal fundraiser, is assessed a 2.9% + 30¢ charge. This amount is deducted from the amount regranted to the designated charity or paid to the personal fundraiser beneficiary and is primarily used to pay third party payment processor costs.
Exceptions:
If is a “cover our costs” checkbox, the payment card amount is increased and the payment card processing fee is not deducted from the donation. See description in the next section.
A commercial partner or sponsor has agreed to pay for payment card processing for donations on a specific site or to a specific cause or charitable organization.
Technology Fee for Individual Donations
In cases where there is no optional tip on a donation form, there is a 5% Technology Fee deducted from the amount regranted to the designated charity or paid to the personal fundraiser beneficiary.
Exceptions:
Tips and the Technology Fee are mutually exclusive (see below)
The donor may see an option to “cover our costs.” If selected, the payment card processing and technology fees will be added on top of the donation / contribution amount, and the donor will pay the combined total. In that case, those fees are not deducted from the donation prior to regranting.
One of our commercial partners or sponsors may pay for the payment card processing and technology fees for donation forms hosted on a specific site or to a specific cause or charitable organization.
Employee engagement programs have a separate fee structure per an agreement between the employer and Pledgeling.
Tips
If a donation form has a line item for tips, there is no Technology Fee. The tip is optional and can be adjusted, including to $0.00. The tip is displayed to you prior to you approving the charge to your payment card. Tips are in addition to the donation amount so do not affect the amount reaching the charitable organization or personal fundraiser beneficiary. Because tips flow immediately to a for-profit service provider, under IRS rules they are not tax deductible to the donor.
Per-Check Fees for Disbursements to US Charitable Organizations
At the end of every calendar month, we calculate the amounts received for every charitable organization, net of the fees above, and send US charitable organizations payment for all amounts greater than $20. We charge a $5 processing fee per paper check.
Fees for Disbursements to Charitable Organizations Outside the US
For payments to non-US charities not registered as 501c3 organizations with the IRS, we partner with international nonprofits who handle the disbursements to the recipients. They will charge a 5% fee against the amount of the donations that we send to them. They may aggregate payments due to a specific organization across multiple months in order for the disbursements to be economic.
Limited License
Our Services 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 Services, including any intellectual property rights contained therein.
Subject to the Terms, Pledgeling hereby grants you a limited license for the sole purpose of using the Services for your personal, non-commercial purposes, conditioned on your continued compliance with these Terms. Any future release, update or other addition to the Services 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 Services terminates the licenses granted by Pledgeling pursuant to the Terms.
Location-based Information
You hereby authorize us and our Services to take certain actions with respect to data about your location:
When you use our Services on a mobile device, you authorize us to collect location information from the GPS functionality on your 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.
When you use our Services on a web browser, you authorize us to collect approximate location information using a variety of techniques.
We use this location data for purposes of fraud prevention and, in aggregate, for analysis and to improve the user experience. We do not sell individualized or aggregate data – see our Privacy Policy.
Ownership
You agree that Pledgeling and its suppliers own all rights, title and interest in the Services. You agree that you have no right or title in or to any data or content that appears on or in the Services.
Pledgeling and other related graphics, logos, service marks and trade names used on 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 Services are the property of their respective owners. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Feedback
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 Services.
Investigations
Pledgeling may, but is not obligated to, monitor or review content on the Services at any time. Without limiting the foregoing, Pledgeling shall have the right, in its sole discretion, to remove any 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 Services, 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 Services, or change, alter or remove content, in whole or in part, without prior notice to you. 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 Services in Pledgeling’s possession in connection with your use of the Services, to:
comply with applicable laws, legal process or governmental request;
enforce the Terms,
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.
Disclaimer of Warranties
The “Pledgeling Parties” are 1) Pledgeling and its parents, subsidiaries, and affiliates, and 2) Pledgeling Foundation, and 3) each of their officers, employees, agents, partners and licensors.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES 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 SERVICES WILL MEET YOUR REQUIREMENTS;
YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE;
THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR
ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES 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 SERVICES, 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 SERVICES 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.
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.
Indemnification
You agree to indemnify, defend, and hold the “Pledgeling Parties” harmless from and against any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of:
your use of, or inability to use, the Services;
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 use of the Services, the Terms or your access to the Services.
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 SERVICES, 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 SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (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 SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE PLEDGELING PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).
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.
Limitations Period. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AND PLEDGELING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Resolving Disputes By Binding Arbitration
YOU AND PLEDGELING EACH AGREE TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMS OF THIS “RESOLVING DISPUTES BY BINDING ARBITRATION“ SECTION. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS TO THE MAXIMUM EXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ARBITRATIONS ARE NOT PERMITTED. EACH PARTY WILL PAY ITS OWN ADMINISTRATIVE COSTS FOR THE ARBITRATION, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS OR BROUGHT IN BAD FAITH. HOWEVER, IN ARBITRATION, BOTH YOU AND PLEDGELING WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
Arbitration Agreement
You and Pledgeling agree to arbitrate any and all disputes and claims between us arising out of or relating to the Services or these Terms, except any disputes or claims which under governing law are not permitted to be subject to arbitration. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. However, any dispute you or we may have relating to copyrights or other intellectual property shall not be governed by this agreement to arbitrate. For the avoidance of doubt, this means that any claims you or we may have relating to intellectual property rights against the other, including injunctive and other relief sought, may be brought in a court of competent jurisdiction. The agreement to arbitrate otherwise includes, but is not limited to: claims based in contract, tort, warranty, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Terms (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; claims relating to your Vehicle for which you seek product or service support; claims arising out of or relating to the Telephone Consumer Protection Act; claims relating to your data privacy or information security, including the collection and use of data about you; and claims that may arise after the termination of the Terms. For purposes of this arbitration provision, references to “Pledgeling,” “you,” and “us” shall include our respective parent entities, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into these Terms, you and Pledgeling are each waiving the right to a trial by jury or to participate in a class or representative action to the maximum extent permitted by law. These Terms evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of these Terms or your relationship with Pledgeling for any reason.
Written Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Pledgeling should be addressed to: attn: Law Department, Pledgeling Technologies, 2100 Abbot Kinney Blvd., Unit E, Venice, CA 90291. The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Pledgeling (the “Demand”). If Pledgeling and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Pledgeling may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Pledgeling or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Pledgeling is entitled. In arbitration, and to the extent otherwise permitted by law, the parties may exchange “offers of compromise” or stipulate to judgments or awards in the same way the parties could in court, including for example, under California Code of Civil Procedure Section 998 for arbitrations taking place in California. Such offers of compromise shall have the same force and effect as they would in a court proceeding. The arbitration proceedings shall otherwise remain confidential, except for purposes of seeking court intervention (if necessary). You may obtain more information about arbitration from www.adr.org.
Arbitration Process
The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The AAA Rules may change from time to time, and you should review them periodically.
Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as the Terms other terms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of these Terms, including, but not limited to, any claim that all or any part of this arbitration provision or the Terms are void or voidable. However if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party in court, then the court shall decide whether these Terms permits class proceedings. For the avoidance of doubt, the court and arbitrator shall be bound by the terms of these Terms, including with regard to the class and representative waiver provision. In any arbitration, the arbitrator shall be bound by the terms of these Terms and shall follow the applicable law. The arbitrator shall not have the power to commit manifest errors of law or legal reasoning, and any award rendered by the arbitrator that employs a manifest error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error.
Unless Pledgeling and you agree otherwise, any arbitration will be governed by the substantive laws of California, and hearings will take place in Los Angeles County, California. Case management and other hearings shall be heard via telephone or equivalent unless otherwise agreed to.
Arbitration Fees
If you are the Claimant under AAA rules, except as otherwise provided for herein, each party will pay its respective AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above.
If Pledgeling is the Claimant under AAA rules, Pledgeling will pay both parties’ AAA filing, administration and arbitrator fees.
However, if you are the claimant and the arbitrator finds that either the substance of your claim or the relief sought in the Demand was filed for purposes of harassment or is patently frivolous, or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Pledgeling for all filing, administration and arbitrator fees it previously disbursed in your matter.#_msocom_
Each party is responsible for paying its own attorneys’ fees and related costs, if any.
No Class Action Matters
YOU AND PLEDGELING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING TO THE MAXIMUM EXTENT PERMITTED BY LAW. Further, unless both you and Pledgeling agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific paragraph (“No Class Action Matters”) is found to be unenforceable in its entirety, then the entirety of this arbitration provision (“Resolving Disputes By Binding Arbitration”) shall be null and void. However, if only a portion of this paragraph is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of the paragraph enforced. Any claims or causes of action seeking relief not subject to individual arbitration under applicable law shall be stayed in a court of competent jurisdiction pending completion of individual arbitration to the maximum extent permitted by law.
Jurisdictional Issues
Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute arising hereunder may only be instituted in state or Federal court in Los Angeles County, California. Accordingly, you and Pledgeling consent to the exclusive personal jurisdiction and venue of such courts for such matters.
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 Services, unless terminated earlier in accordance with the Terms.
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 access to the Services.
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 Services, 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;
Discontinue your registration(s) with the any of the Services, including any Services or any Pledgeling community;
Discontinue your access or use of 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.
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. Upon termination of any Service, your right to use such Service will automatically terminate immediately. 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.
General Provisions
Electronic Communications
The communications between you and Pledgeling use electronic means, whether you visit the Services or send Pledgeling e-mails, or whether Pledgeling posts notices on the Services 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.
Assignment
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.
Force Majeure
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.
Compliance
If you believe that Pledgeling has not adhered to the Terms, please contact Pledgeling by emailing legal@pledgeling.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.
Governing Law
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Notice
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.
Waiver
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability
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.
Export Control
You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services 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 Services, 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 Services 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.
Entire Agreement
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
International Provisions
The following provisions shall apply only if you are located in the countries listed below.
United Kingdom
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.
Germany
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).