Project Giving Kids Terms of Service

Effective Date: October 3, 2019

These Terms of Service (“Terms”) apply to your access to and use of the websites and mobile applications (collectively, the “Services”) provided by Project Giving Kids, Inc. (“Project Giving Kids,” “PGK,” or “we”) at 1150 Walnut Street, Second Floor, Newton, MA 02461. By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16. If you do not agree to these Terms, do not use our Services.

We may make changes to these Terms from time to time. If we make changes, we will notify you by revising the date at the top of the policy and, in some cases, we may provide you with additional notice (such as adding a statement to our website homepage or sending you a notification). We encourage you to review the Terms whenever you access the Services or otherwise interact with us to stay informed about our practices and the choices available to you. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

If you have any questions about these Terms or our Services, please contact us at info@projectgivingkids.org.

Privacy

For information about how we collect, use, share, and otherwise process information about you, please see our Privacy Policy.

Eligibility

We understand the importance of protecting children’s privacy in the interactive world. We are a general audience service and do not use the Services to knowingly collect personal information from children under the age of thirteen (13); children under the age of 13 require parental notice and consent under the Children’s Online Privacy Protection Act (“COPPA”). Children under 13 years of age should only use our Services under the supervision of a parent or guardian.

In the event that we become aware that we have collected personal information from any child, we will dispose of that information in accordance with COPPA and other applicable laws and regulations. If you are a parent or guardian and you believe that your child under the age of 13 has provided us with personal information without COPPA-required consent, please contact us at info@projectgivingkids.org.

User Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

User Content

Our Services may allow you and other users to create, post comments, rate activities, store, and share content, including messages, text, photos, videos, software, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and PGK.

You grant PGK and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.

You may not create, post, store, or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of, or cause injury to, any person or entity. Although we have no obligation to screen, edit, or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.

Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property rights, other third-party right, or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

• Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
• Use or attempt to use another user’s account without authorization from that user and PGK;
• Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
• Sell, resell, or commercially use our Services;
• Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
• Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
• Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
• Reverse engineer any aspect of our Services or do anything that might discover source code, bypass, or circumvent measures employed to prevent or limit access to any part of our Services;
• Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services;
• Develop or use any applications that interact with our Services without our prior written consent;
• Bypass or ignore instructions contained in our robots.txt file; or
• Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

Enforcement of this Section is solely at PGK’s discretion. Failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.

Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, are owned by PGK or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

App License. Subject to your compliance with these Terms, PGK grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the PGK app on a mobile device or computer that you own or control and to run such copy of the app solely for your own personal or internal business purposes. Furthermore, with respect to any app accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.

Trademarks

Project Giving Kids and our logos, our product or service names, our slogans, and the look and feel of the Services are trademarks of PGK and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

Feedback

You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about PGK or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in PGK’s sole discretion. You understand that PGK may treat Feedback as non-confidential.

Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify PGK’s designated agent as follows:

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to PGK for certain costs and damages.

Third-Party Content & Rights

We provide information about third-party products, services, activities, or events - such as relevant volunteer service opportunities with other non-profits, and we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. PGK does not control or endorse, and makes no representations or warranties regarding any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk. PGK cannot guarantee the accuracy of the content provided by third parties, including that of the non-profits listed on or through the Services, and we do not assume the risk of engaging with these organizations. While we may feature volunteer opportunities, we have no control over those opportunities, their execution, or the organizations/representatives that run them.

Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless PGK and our officers, directors, agents, partners, employees and volunteers (individually and collectively, the “PGK Parties”) from and against any losses, liabilities, claims, demands, damages, expenses, or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify PGK Parties of any third-party Claims, cooperate with PGK Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the PGK Parties will have control of the defense or settlement, at PGK's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and PGK or the other PGK Parties.

Disclaimers

Your use of our Services is at your sole risk. Except as otherwise provided in writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, PGK does not represent or warrant that our Services are accurate, complete, reliable, current, or error-free. While PGK attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

Limitation of Liability

To the fullest extent permitted by applicable law, PGK and the other PGK Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, special damages, or lost profits, even if PGK or the other PGK Parties have been advised of the possibility of such damages.

The total liability of PGK, and the other PGK Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid by you to use our Services.

The limitations set forth in this Section will not limit or exclude liability for gross negligence, fraud, or intentional misconduct of PGK or the other PGK Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

Release

To the fullest extent permitted by applicable law, you release PGK and the other PGK Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer, and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with PGK and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and PGK agree that any dispute arising out of or related to these Terms or our Services is personal to you and PGK, and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes in which you or PGK seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or PGK seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and PGK waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against PGK or relating in any way to the Services, you agree to first contact PGK and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to PGK by email at info@projectgivingkids.org or by certified mail addressed to 1150 Walnut Street, Second Floor, Newton, MA 02461. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and PGK cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court.

All disputes submitted to JAMS will be resolved through confidential, binding arbitration. Arbitration proceedings will be held in Boston, Massachusetts or may be conducted telephonically or via video conference for disputes alleging damages less than $250,000, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and PGK agree that these Terms affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.

The arbitrator, PGK, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy, in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and PGK agree that for any arbitration you initiate, you will pay the filing fee and the remaining JAMS fees and costs shall be split between you and PGK evenly. For any arbitration initiated by PGK, PGK will pay the filing fee and the remaining JAMS fees and costs shall be split between you and PGK evenly. You and PGK agree that the state or federal courts of the State of Massachusetts and the United States sitting in Boston, MA have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and PGK will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section by emailing info@projectgivingkids.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 16.

If any portion of this Section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.

Governing Law and Venue

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Massachusetts, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Massachusetts or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Massachusetts and the United States, respectively, sitting in Boston, Massachusetts.

Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. If we discontinue providing all or portions of the Services, we will, where reasonably possible, give you advance notice and a chance to access and move your content and data to another service.

Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

Miscellaneous

The failure of PGK to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.