Terms of Use (Comprehensive)
Last Updated: September 2023
PLEASE CAREFULLY READ THESE TERMS OF USE, INCLUDING THE BINDING ARBITRATION PROVISION THAT REQUIRES MOST DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS (SEE SECTION 19) AND THE CLASS ACTION AND JURY TRIAL WAIVER (SEE SECTION 20). IN ARBITRATION THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. THESE PROVISIONS AFFECT YOUR RIGHTS.
PLEASE NOTE THAT YOUR USE AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
For information on your data rights and our data collection, use and sharing processes as you interact with our Services please consult our Privacy Statement.
Givng, LLC., its subsidiaries and affiliates, including its family of companies and brands, operate various websites (the “Sites”), mobile applications (the “Apps”), and use and/or participate in social media sites, digital advertising and emails (collectively, the “Services”). These Terms of Use (“Terms”) and our Privacy Statement (which is expressly incorporated herein by reference), contain the rules and restrictions that govern your use of our Services, and constitute a binding agreement between you and us. Please read these Terms, as well as our Privacy Statement, carefully. They contain important information about the products and/or Services provided to you and our use of certain information.
Thank you for using our Services. By using or accessing our Services and interacting with our digital operations, including our Sites, Apps, social media and digital advertising, you signify your consent to these Terms and our Privacy Statement. If you do not agree to these Terms and Privacy Statement, you may not use or access the Services in any manner.
We reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. Please check these Terms periodically for changes. Your continued access or use of the Services following the posting of changes to these Terms (including our Privacy Statement) constitutes your agreement to them.
1. RESTRICTIONS ON USE OF MATERIALS
The Services are owned and operated by us. Except as otherwise permitted by these Terms, no material from the Services or any Site or App owned, operated, licensed or controlled by us may be modified, copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may print one hard copy or download one copy of the materials on any single computer for your personal, noncommercial home use, provided you keep intact all copyright and other proprietary notices.
Use of the materials for any other purpose, modification of the materials, or use of the materials on any other website or networked computer environment is strictly prohibited. Absolutely no framing of this Website or App is permitted without the prior written consent of Givng. You may not copy, decompile, reverse engineer, disassemble, or attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof. Except as expressly stated in this legal notice, no right or license to the materials, or any portion thereof, shall be granted or implied.
2. USE OF WIDGETS
Our widgets are tools that you may place on your website to permit your visitors to access our Website or App (each, the "Widget"). Subject to your compliance with these Terms, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, personal, revocable license to use and display the Widget on your website solely for your own personal, non-commercial use. You may not use the Widget for any other purpose without our prior written consent, and nothing in these Terms shall be deemed to grant you any right, title or interest in the Widget. In addition, you may not:
· Use the Widget to offer or promote or sell any products or services, or otherwise use the Widget in association with, any products or services for sale.
· Use the Widget (or any content displayed in connection with or through it) in any manner that may be construed as an endorsement by us of any product, service, activity or brand contained on your website.
· Place the Widget on any website that includes content that is offensive, harassing, threatening, abusive, discriminatory, vulgar, pornographic or otherwise inappropriate, as determined by us in our sole discretion.
· Use the Widget in any manner that prevents the end user of your website from linking directly to the applicable page of our Services.
We reserve the right to discontinue providing any Widget at any time. We further reserve the right to direct you to cease displaying or otherwise using any Widget, for any or no reason and without liability to you or any third party.
3. ACCOUNTS
You may be required to create an account and specify a password to use certain features on our Services. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by the registration processes. You may not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password, or other account information.
You are entirely responsible for maintaining the confidentiality of your password and your account, and you are entirely responsible for all activity made by you or anyone that uses your account. You agree to safeguard your password from access by others.
If you believe that your account has been compromised, you must immediately contact us by emailing support@givng.co.
GIVNG shall not be responsible for any loss that results from the unauthorized use of your password, with or without your knowledge, and you agree to indemnify and hold harmless GIVNG for losses incurred by GIVNG or another party due to someone else using your account as a result of your failure to use reasonable care to safeguard your password.
4. WEBSITE MONITORING
We and our service providers may use cookies, beacons, pixel tags, log files, or other technologies to automatically collect certain information when you use our Site, App, Membership Program, or other services or interact with our emails or advertisements on our Site, our App, Membership Program, or other websites or services. A cookie is a small data file that is sent to your browser from a web server and stored on your computer's hard drive. The information that we and our providers collect through cookies and other technologies, along with information that we share with them, enables us or our providers to recognize you or your device and to serve ads to you or your device. For example, these technologies may allow us to automatically collect information such as your IP address, geolocation data, unique user ID, Device ID, Mobile Ad Identifiers, browser type and version, character set, screen size and color, language, cell phone model, operating system and version, carrier, and Internet Service Provider. This information: (a) allows us to accurately and properly pay for ads placed on our behalf (e.g., an ad that led you to purchase or download one of our products) and get paid when you see an ad on our Services; (b) helps prevent you from repeatedly seeing the same ads; (c) helps select and display targeted ads or other content on your computer or device (such as on a site or social networking service you are visiting or a mobile application you are using) that may be of interest to you; and (d) helps us measure and analyze interactions with our ads and Services.
We also may collect information about your use of our Services, such as the time you spend using the Site or App, the number of times you return, whether you click-through, open, or forward links, e-mails, and ads, and other Service usage data. These technologies, such as cookies, also allow us to keep track of your order as you shop on our Site or App, to make our Site better, to enable our Services to function, to maintain your preferences and settings, to provide enhanced features, to combat fraud, to recognize registered users when they visit, and to provide registered users with information and advertising that is more relevant to them.
If you register with or order from us, we may also use cookies or other technologies to monitor and maintain information about how you use our Services and what you buy.
If you do not register with or buy from us, we may also monitor and maintain information about your use in order to improve your shopping experience and provide you with more relevant content and advertising. Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies. Please note that if you choose to remove or reject cookies, this could affect the availability and functionality of our Services. This site uses cookies to help keep track of items you put into your shopping cart including when you have abandoned your cart and this information is used to determine when to send cart reminder messages via SMS.
For more information concerning our privacy practices and your rights, please see our Privacy Statement (which is incorporated as part of this agreement).
5. CONTENT POSTED OR SUBMITTED BY YOU
Certain pages on the Services may allow you to post text, photographs, videos, audio, or other content ("Content"). Unless otherwise specified on a particular Site or App, you may only post Content to the Services if you are a resident of the United States and are thirteen (13) years of age or older. If you are a minor, you must have permission from your parent or legal guardian before you post any Content to the Services. You may only post Content that you created or which the owner of the Content has given you permission to post.
If Content includes the name, likeness, signature or other identifiable characteristics associated with any person other than yourself (“Third Party Persona”), you must have permission from that person or, if that person is a minor, permission from that person's parent or legal guardian, before you post the Content including the Third Party Persona. You may be required to provide proof of such permission to GIVNG. You may not post or distribute Content that is illegal or that violates these Terms. By posting or distributing Content to the Services, you represent and warrant that (a) you own all the rights to the Content or are authorized to use, display and distribute the Content to the Services and (b) the Content does not and will not infringe any patent, copyright, trademark, right of publicity, or any other third-party right, and does not violate any law or regulation.
By submitting or posting Content to the Services, you grant givng the irrevocable, perpetual, royalty-free, right to reproduce, display, perform, publish, transmit, distribute, adapt, and promote this Content in any medium and for any lawful purpose, worldwide. Once you submit or post Content to the Services, GIVNG does not need to give you any further right to inspect or approve uses of such Content or to compensate you for any such uses. GIVNG owns all right, title, and interest in any compilation, collective work, or other derivative work created by GIVNG using or incorporating Content posted to the Services.
You are solely responsible for anything you may post on the Services and the consequences of posting anything on the Services.
6. CONTENT POSTED BY OTHER USERS
GIVNG is not responsible for, and does not endorse, Content in any posting made by other users on the Services. Under no circumstances shall GIVNG be held liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you in connection with any Content posted by a third party on the Services.
If you become aware of misuse of the Services by any person, please contact GIVNG by emailing support@givng.com. If you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.
7. USE OF SERVICES
Impersonation of others, including a GIVNG employee or representative, or another user or individual is prohibited. You may not upload to, distribute, or otherwise publish through the Services any content which is libelous, defamatory, obscene, threatening, an invasion of privacy or publicity rights, abusive, illegal, or otherwise objectionable which may constitute or encourage a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law.
You may not upload commercial content on the Services or use the Services to solicit others for any other commercial online service or other organization.
You may not without the prior written permission of GIVNG, use any computer code, data mining software, "robot", "bot", "spider", "scraper" or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the web pages, data or content found on this Site or App, or accessed through this Site or App.
You may not engage in the mass downloading of files from the Services; use the computer processing power of the Services for purposes other than those permitted above; or flood the Services with electronic traffic designed to slow or stop its operation. You may not establish links to or from other websites to the Services without the prior written consent of GIVNG.
The Sites are general purpose sites and are not targeted towards children under the age of thirteen (13). We do not permit children under 13 to have accounts.
Unless otherwise indicated, the Sites are intended for US residents. Subject to your compliance with these Terms, we grant you a personal, non-exclusive, non-transferrable, limited privilege to access and use the Sites solely for your personal, non-commercial use. This privilege does not include any resale or commercial use of the Sites. We may revoke your access and use of a Site at any time (including if you violate these Terms), and nothing herein constitutes a representation that the Sites will be available to you for your access or use.
8. THIRD PARTY LINKS
From time to time, a Site, App or Service may contain links to and/or functionality interacting with third party sites that are not owned, operated or controlled by us. All such links and/or functionality are provided solely as a convenience and do not constitute an endorsement by us. If you use these links, you will leave the Site. We are not responsible for any content, materials or other information located on or accessible from any other site or in the data collection, sharing or protection practices of such site. We do not endorse, guarantee, or make any representations or warranties regarding any other site; any content, materials or other information located or accessible from such sites; or any results that you may obtain from using such sites. We also do not guarantee that links and/or functionality provided by third parties will be available or error-free, uninterrupted, free from viruses and/or unauthorized access, or otherwise meet your requirements.
IF YOU DECIDE TO ACCESS ANY OTHER SITE LINKED TO OR FROM THE SITES, YOU DO SO ENTIRELY AT YOUR OWN RISK.
9. ACTIVITIES PROHIBITED ON THE SERVICES
· The following is a partial list of the kinds of conduct that are illegal or prohibited on the Services. GIVNG reserves the right to investigate and take appropriate legal action against anyone who, in GIVNG's sole discretion, engages in any of the prohibited activities. Prohibited activities include, but are not limited to, the following:
· Using the Services for any purpose in violation of local, state, or federal laws or regulations;
· Posting Content that infringes the intellectual property rights, privacy rights, publicity rights, trade secret rights, or any other rights of any party;
· Posting Content that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by GIVNG in its sole discretion or pursuant to local community standards;
· Posting Content that constitutes cyber-bullying, as determined by GIVNG in its sole discretion;
· Posting Content that depicts any dangerous, life-threatening, or otherwise risky behavior;
· Posting telephone numbers, street addresses, or last names of any person;
· Posting URLs to external websites or any form of HTML or programming code;
· Posting anything that may be "spam," as determined by GIVNG in its sole discretion;
· Impersonating another person when posting Content;
· Harvesting or otherwise collecting information about others, including e-mail addresses, without their consent;
· Allowing any other person or entity to use your identification for posting or viewing comments;
· Harassing, threatening, stalking, or abusing any person;
· Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Services, or which, in the sole discretion of GIVNG, exposes GIVNG or any of its customers, suppliers, or any other parties to any liability or detriment of any type; or
· Encouraging other people to engage in any prohibited activities as described herein.
· Purchasing for resale purposes or purchasing using freight forwarding services.
· GIVNG reserves the right, but is not obligated, to do any or all of the following:
· Investigate an allegation that any Content posted on the Services does not conform to these Terms and determine in its sole discretion to remove or request the removal of the Content;
· Remove Content which is abusive, illegal, or disruptive, or that otherwise fails to conform with these Terms;
· Terminate a user's access to the Services upon any breach of these Terms;
· Monitor, edit, or disclose any Content on the Services; and
· Edit or delete any Content posted on the Services, regardless of whether such Content violates these standards.
10. THIRD-PARTY COPYRIGHTS
If you believe any Content on the Services infringes your copyright, you may request removal of such Content (or access thereto) from this Site or App by contacting GIVNG as set forth below and providing the following information:
· Identification of the copyrighted work that you believe to be infringed. Please describe the work and, where possible, include a copy of the work or the location (e.g., URL or page within the App) of an authorized version of the work, together with information regarding any copyright registration you own for the work you believe to be infringed.
· Identification of the material that you believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow us to locate the material you believe constitutes an infringement.
· Your name, address, telephone number, and e-mail address.
· A statement that you have “a good faith belief that the complaint of use of the materials is not authorized by the copyright owner, its agent, or the law”.
· A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
· A signature or the electronic equivalent from the copyright holder or authorized representative.
Send this information by mail to:
GIVNG, LLC.
c/o Law Department
75 PORTSMOUTH BLVD STE 110
PORTSMOUTH, NH 03801
counsel@givng.co
In an effort to protect the rights of copyright owners, GIVNG reserves the right to terminate in appropriate circumstances, subscribers and account holders of the Services who are repeat infringers.
11. INTELLECTUAL PROPERTY
All content included on the Services, such as text, graphics, code, logos, button icons, images, audio and visual clips, widgets and software, and the compilation of such content (i.e. collection, arrangement and assembly) is the exclusive property of GIVNG or its suppliers and is protected by U.S. and other copyright laws and international treaties. The content and software on the Services may be used only as a shopping resource.
Any other use, including the reproduction, modification, distribution, transmission, republication, display or performance, of the content on the Services is strictly prohibited. Givng is a registered trademarks of GIVNG LLC. All other product names contained in the Services are trademarks or registered trademarks of their respective owners. The use or misuse of these trademarks except as expressly authorized is prohibited. GIVNG enforces its intellectual property rights to the fullest extent of the law.
If you have questions concerning the legal notices stated above, you may contact GIVNG, Inc., Law Department, 75 PORTSMOUTH BLVD STE 110, PORTSMOUTH, NH 03801.
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12. SUBMISSIONS TO GIVNG
You hereby agree that any information, including but not limited to remarks, suggestions, ideas, graphics or other submissions, communicated to GIVNG through the Services becomes the exclusive property of GIVNG and GIVNG is entitled to use the information submitted for any purpose without restriction or compensation to you.
You represent that any submission you communicate to GIVNG is original to you and accept sole responsibility for its accuracy, appropriateness and legality.
13. WARRANTY DISCLAIMER
The Services and the materials, Widgets and products on the Services are provided "as is" and without warranties of any kind, either expressed or implied. To the fullest extent permissible pursuant to applicable law, GIVNG disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
GIVNG does not represent or warrant that the functions contained in the Services will be uninterrupted or error-free, that defects will be corrected, or that the Services or the server that makes it available are free of viruses or other harmful components. GIVNG does not warrant or make any representations regarding the use or the results of the use of the materials in the Services in terms of their correctness, accuracy, reliability or otherwise. You (and not GIVNG) assume the entire cost of all necessary servicing, repair or correction.
Some states do not permit limitations or exclusions of implied warranties, so the above limitations may not apply to you.
14. LIMITATION OF LIABILITY AND TIME FOR FILING
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL GIVNG BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR THE INABILITY TO USE THE SERVICES OR THE PERFORMANCE OF THE WIDGETS OR PRODUCTS, EVEN IF GIVNG OR AUTHORIZED REPRESENTATIVES OF GIVNG HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT PERMIT LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AND WE AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO, THE TERMS AND/OR YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE SITES OR APPS, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE SITES OR APPS, OR CONTENT MUST BE COMMENCED (BY SUBMITTING A NOTICE OF DISPUTE UNDER SECTION 19 OR, TO THE EXTENT PROVIDED FOR IN THESE TERMS, FILING AN INDIVIDUAL SMALL CLAIMS ACTION) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT OR OMISSION GIVING RISE TO THE CLAIM OR IT IS WAIVED AND TIME BARRED; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
15. INDEMNIFICATION
As a condition of use of the Services, you agree to indemnify, defend, and hold harmless GIVNG, its officers, directors, employees, agents, licensors and suppliers (collectively, the "Service Providers") from and against any and all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from your use of the Services or any Widget, including any claims alleging facts that if true would constitute a violation of these Terms or any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing the Services using your account.
16. PRODUCT ORDERS
All orders placed through the Services are subject to GIVNG's acceptance. GIVNG may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. If your payment method has already been charged for an order that is later cancelled, GIVNG shall issue you a refund.
17. TYPOGRAPHICAL ERRORS
We reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order was submitted and accepted). In the event that a product sold is mistakenly listed at an incorrect price, GIVNG reserves the right to refuse or cancel any orders placed for the product listed at the incorrect price, whether or not the order has been confirmed and your payment method charged. If your payment method has already been charged for the purchase and your order is cancelled, GIVNG shall issue a credit to your payment method account.
18. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California website users 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 by telephone at (800) 952-5210.
19. BINDING ARBITRATION/DISPUTE RESOLUTION
PLEASE READ CAREFULLY THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”). IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH US AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. PLEASE NOTE THAT THERE IS A LIMITED RIGHT TO OPT OUT OF ARBITRATION AS SET FORTH BELOW.
YOU AND WE AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO, THE TERMS AND/OR YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE SITES OR APPS, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE SITES OR APPS, OR CONTENT (A "DISPUTE" OR “DISPUTES” AS DEFINED BELOW) SHALL BE RESOLVED BY: (A) FINAL AND BINDING, BILATERAL ARBITRATION, SUBJECT TO THE LIMITATIONS EXCEPTIONS BELOW; OR (B) IN A SMALL CLAIMS COURT ON INDIVIDUAL BASIS AS SET FORTH BELOW.
Notwithstanding any other provision in these Terms, you and we agree and acknowledge that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement and any proceedings relating to such interpretation or enforcement. This Arbitration Agreement survives termination of the Services and these Terms.
· Disputes
Except for matters that are specifically and expressly excluded herein, this Arbitration Agreement covers any and all disputes, claims, suits, actions, causes of action, demands, or proceedings between you and any of us (individually, a “Dispute”). A Dispute shall include, but are not limited to, any claims or controversies between you and us (or any of us) in any way relating to or arising out of in any way the Services and/or any other subject matter covered by or relating to these Terms, including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and us (or any of us), even if the claim arises after you or we have terminated use of Services. A Dispute also includes, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, and/or other representatives; (b) we bring against you; (c) in any way relate to or arise out of any aspect of the relationship between you and us (or any of us), whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you assented to these Terms or out of a prior set of terms and/or conditions applicable to our relationship with you; (e) are subject to ongoing litigation where you are not a party or a member of a certified class; and/or (f) arise after the termination of these Terms. Notwithstanding the foregoing, either party may elect to have a Dispute heard in small claims court provided the claim remains in that court and is not removed or appealed to a court of general jurisdiction. In addition, either party may pursue a claim in a court of competent jurisdiction seeking injunctive or equitable relief in connection with the alleged unlawful use of intellectual property.
· Mandatory Informal Dispute Resolution Process
Before initiating an arbitration proceeding, you or we must give the other party notice of the Dispute by providing a written “Notice of Dispute” that is personally signed by both (a) the party seeking arbitration and (b) the party’s legal counsel or representative (if applicable). The Notice of Dispute must contain all of the following information: (a) the claimant’s name, mailing address, telephone number, and email address; (b) a detailed description of the nature and basis of the Dispute; and (c) a detailed description of the nature and basis of the relief sought, including a good faith calculation for it.
If you are initiating the Notice of Dispute, you must send it to us at the address below (“Our Notice Address”):
GIVNG, Inc.
75 PORTSMOUTH BLVD STE 110
PORTSMOUTH, NH 03801
Our Notice of Dispute to you will be sent electronically and/or to the most recent address we have in our records for you (“Your Notice Address”).
You and we agree to attempt to resolve the Dispute through informal, good faith negotiations for a sixty (60) day period from the date that a completed Notice of Dispute is received (or a longer period, if agreed to by the parties). If the party receiving the Notice of Dispute requests a telephone settlement conference as part of this informal process, you and we agree to participate in an effort to resolve the Dispute. Should we make this request, you agree to personally attend this conference (with your counsel, if you are represented). Should you make the request, we agree to have a representative attend this conference (with counsel, if we are represented).
Compliance with this Mandatory Informal Dispute Resolution Process is a condition precedent to initiating arbitration. The party initiating arbitration must include as part of the demand for arbitration a personally signed certification of compliance with the mandatory informal dispute resolution process (if you initiate arbitration, then the certification must be signed by you and by your attorney, if you are represented; if we initiate arbitration, then the certification must be signed by our representative and our attorney, if we are represented). Neither you nor we may initiate an arbitration absent such compliance. If the sufficiency of a Notice of Dispute or compliance with this process is at issue, it may be decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed. Such court shall have the authority to enforce this condition precedent to an arbitration proceeding, which includes the power to enjoin the filing or prosecution of a demand for arbitration and the assessment and collection of arbitration administrative fees. Notwithstanding the foregoing, either party may elect to raise non-compliance with this Mandatory Informal Dispute Resolution Process and seek appropriate relief in arbitration. The party initiating the small claims court proceeding shall submit a personally signed certification of compliance with the mandatory informal dispute resolution process (if you initiate arbitration, then the certification must be signed by you and by your attorney, if you are represented; if we initiate arbitration, then the certification must be signed by our representative and our attorney, if we are represented).
Any applicable limitations period (including the statute of limitations) and any filing fee deadlines shall be tolled while you and we engage in this Mandatory Informal Dispute Resolution Process in an effort to resolve the Dispute without the need for formal proceedings.
· Arbitration Procedures
Except as otherwise provided herein, if you and we cannot resolve a Dispute informally, any Dispute will be resolved through bilateral arbitration before a single, neutral arbitrator in the county or parish where you reside. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s applicable rules including the supplementary rules (“AAA Rules”), as modified by these Terms. The AAA Rules are available at www.adr.org. If the AAA is unable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an alternative administrator that will do so. If the parties cannot agree, they shall jointly petition a court of competent jurisdiction to appoint an administrator that will do so.
The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the AAA Rules and this Arbitration Agreement. If you are initiating arbitration, you shall serve the demand on us at Our Notice Address. If we are initiating arbitration, we shall serve the demand at Your Notice Address. The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel, if represented). By signing the demand for arbitration, that party (and their counsel, if represented) certifies that they have complied with (a) the Mandatory Informal Dispute Resolution Process (and they shall attach the Notice of Dispute) and (b) the requirements of Federal Rule of Civil Procedure 11(b), including that (i) the claims and relief sought are neither frivolous nor brought for an improper purpose or to harass, cause unnecessary delay, or needlessly increase the cost of arbitration or litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would, including if the arbitrator determines that the claim is frivolous or brought for an improper purpose.
The AAA Rules shall govern the payment of all arbitration fees. You and we agree that arbitration is designed to be cost-effective for all parties. Either party may engage with the AAA to discuss fee reductions and deferred payments. All issues are for the arbitrator to decide except the following, which are for a court of competent jurisdiction to decide: (a) issues that are specifically reserved for a court in these Terms and (b) issues related to the scope and enforceability of the Arbitration Agreement.
The arbitrator may award relief, including, but not limited to, monetary, declaratory, injunctive, or other equitable 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. The arbitrator must follow these Terms and can award the same individualized damages and relief as a court, including injunctive or other equitable relief necessary to provide relief as to the individualized claim. Any arbitration under this Arbitration Agreement will take place on an individual basis; class arbitrations, class actions, collective actions, and representative actions are not permitted. There is no judge or jury in arbitration, and court review of an arbitration award is limited. Each party is responsible for their own costs and attorneys’ fees, however, the parties are entitled to seek recovery of costs and attorney’s fees to the same extent they would be entitled to seek such recovery for the same claim in court under controlling law. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Unless you and we otherwise agree, one person’s claims may not be consolidated with those of any other person. If a court determines that a claim or request for public injunctive relief may not be waived and all appeals from that decision have been exhausted (or it is otherwise final), you and we agree that any claim or request for public injunctive relief shall be stayed and resolved by a court pending arbitration of the remaining claims and requests for relief.
The decision of the arbitrator shall be in writing and shall set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered in court. The decision of the arbitrator shall have no preclusive effect in any proceeding involving non-identical parties. This Arbitration Agreement shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
Each party reserves the right to request a telephonic, video, or in-person hearing from the arbitrator. You and our representative shall personally appear at any hearing ordered by the arbitrator (along with your and our counsel, if represented). For claims of $25,000 or more (and for claims seeking individualized injunctive, equitable, or declaratory relief), a telephone, virtual, or in-person hearing shall be held and you and our representative shall personally appear (along with your and our counsel, if represented). The parties can agree to waive a hearing.
For any Dispute where either the amount alleged to be in controversy at the outset of the Dispute, or the amount recovered by either party in arbitration, is $100,000 or more (inclusive of any fees and costs awarded), the Dispute shall be subject to the AAA’s Optional Appellate Arbitration procedures, which are available at www.adr.org. The decision in such an action shall be required to be in the form of a reasoned, written decision and the appeal will be heard by a panel of three AAA neutrals from the appellate panel.
· Additional Multiple Case Filing Procedures
These additional procedures (in addition to the provisions of this Arbitration Agreement set forth above) apply to multiple case filings. If more than twenty-five (25) similar claims are asserted against us by the same or coordinated counsel or are otherwise coordinated (and your claim is one of them), you understand and agree that these additional procedures shall apply and that the adjudication of your Dispute might be delayed.
Stage One: Counsel for the claimants and counsel for us shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Once a claim is selected for this initial set of staged proceedings, it may not be withdrawn without the consent of both parties (the same applies to any counterclaims). After this initial set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge and we shall pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for us shall each select fifty (50) claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Once a claim is selected for this initial set of staged proceedings, it may not be withdrawn without the consent of both parties (the same applies to any counterclaims). After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge, and we shall pay the mediator’s fee.
Each case within Stage One and within Stage Two shall be assigned to a different, single arbitrator, unless the parties otherwise agree in writing. If your claim is not resolved as part of the staged process set forth above, then after the completion of Stage Two either:
Option One: You and we may, separately or by agreement, opt out of arbitration and elect to have your claim heard in a court of competent jurisdiction consistent with these Terms. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out to us at Our Notice Address within thirty (30) days after the conclusion of Stage Two. We may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within fourteen (14) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two: If neither you nor we elect to have your claim heard in court consistent with Option One, then you and we agree that your claim will be resolved through continued staged proceedings as set forth below or through another staged and/or otherwise streamlined process agreed to in writing by the parties. Assuming the number of remaining claims exceeds 100, then 100 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 100, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims beyond 100 shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and the AAA to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
Any relevant limitations period and filing fee or other deadlines shall be tolled subject to these Additional Multiple Case Filing Procedures from the time the first cases are selected for a staged process until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
A court of competent jurisdiction shall have the authority to enforce these Additional Multiple Case Filing Procedures and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment and collection of arbitration fees. If these Additional Multiple Case Filings Procedures apply to your claim, and a court of competent jurisdiction determines they are not enforceable as to your claim, then your claim shall not be arbitrated and shall proceed in court consistent with these Terms.
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Right to Reject Arbitration
You have the right to opt out of arbitration by sending a timely written notice of your decision to opt out, within thirty (30) days of the date you first become subject to an arbitration agreement with us (e.g., the first time you agreed to terms with us that include arbitration provisions). If you want to opt out, your notice must be sent in writing to:
GIVNG, Inc.
75 PORTSMOUTH BLVD STE 110
PORTSMOUTH, NH 03801
The opt-out notice must be personally signed by you and include: (i) your full name; (ii) your mailing address; (iii) your telephone number; (iv) your email address; and (v) clearly indicate your intent to opt out of binding arbitration. If you opt out of arbitration, all other parts of the Terms will continue to apply to you. Opting out of arbitration has no effect on any other arbitration agreements that you may currently have with us (or any of us), or may enter into in the future with us (or any of us)
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Opt Out of Changes to the Arbitration Agreement
If we make any future change to the arbitration provisions in this Section 19 (other than a change to the notice address), you may reject any such change by sending us a personally signed, written notice of your decision to opt out of those changes to Our Notice Address within thirty (30) days of notice of the change and include: (i) your full name; (ii) your mailing address; (iii) your telephone number; (iv) your email address; and (v) a description of when and how you interacted with us. Such opt out must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement that you wish to reject the change to the arbitration provisions. This is not an opt out of arbitration altogether.
20. CLASS ACTION WAIVER AND JURY TRIAL WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
You and we agree that, to the fullest extent permitted by applicable law, each party may bring claims (whether in court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and we may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and we may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or we may participate in a class-wide settlement. Nothing in these Terms precludes you from bringing issues to the attention of federal, state, or local government agencies and, if the applicable law allows, such agencies may seek relief against us for you.
To the fullest extent permitted by applicable law, you and we waive any right to a jury trial. This Section 20 shall survive termination of the Services and these Terms.
21. CHOICE OF LAW, VENUE, AND SEVERABILITY
These Terms shall be governed by and construed in accordance with the laws of the state of New Hampshire, U.S.A., without giving effect to any principles of conflicts of law, and expressly not by the United Nations Convention on Contracts for the International Sales of Goods. Unless you and we agree otherwise, to the fullest extent permitted by applicable law, the state and federal courts of Rockingham County, New Hampshire shall have exclusive jurisdiction over any Disputes between you and us (except for Disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of any provisions of these Terms (including the arbitration provisions and class action waiver). You and we consent to the exclusive jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis to seek transfer or change venue of such action to another court.
Except as otherwise specifically provided in these Terms (including but not limited to the Additional Multiple Case Filing Procedures set forth in Section 19), if any provision set forth in Sections 2 to 20 of these Terms shall be unlawful, void, or for any reason unenforceable, that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. GIVNG's failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. This is the entire agreement between us relating to the subject matter herein and shall not be modified except as described herein.
This Section 21 shall survive termination of the Services and these Terms.
22. TERMINATION AND SURVIVAL
You may terminate these Terms at any time, provided that you discontinue any further use of the Services. We also may terminate these Terms at any time and may do so immediately without notice, and deny you access to the Services, if in our sole discretion you fail to comply with any term or provision of these Terms. Upon any termination of these Terms by either you or GIVNG, you must promptly destroy all materials and other content downloaded or otherwise obtained from the Services, as well as all copies of such content, whether made under these Terms or otherwise.
In addition to the sections expressly noted that survive the termination of the Services and these Terms, the parties agree that their respective rights, obligations and duties under Sections (1) Warranty Disclaimer (§ 13); (2) Limitation of Liability and Time for Filing (§ 14); (3) Indemnification (§ 15); (4) Intellectual Property (§ 11); (5) Website Monitoring (§4); (6) Content Posted or Submitted by You (§5); Activities Prohibited on the Services (§9); and as well as any rights, obligations and duties which by their nature extend beyond the termination of the Services and these Terms shall survive any termination of the Services and these Terms.