Last Updated Date: JANUARY 31, 2022
PLEASE BE AWARE THAT SECTION 18 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 1.5 (GROUNDSWELL COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
The Services consist of the following, without limitation: Groundswell’s proprietary web-based platform and mobile application for charitable giving (collectively, the “Software”), as well as the Foundation’s donor-advised fund program.
1.1 Use of the Services. Subject to your ongoing compliance with the terms of the Agreement, Groundswell hereby grants to you a non-exclusive, non-transferable, non-sublicensesable license during the Term (as defined below) to (i) access and use the Services solely for your personal purposes in connection with making Contributions and recommending Distributions (each as defined below) and (ii) a limited license to reproduce portions of the Services on social media accounts or websites which you own or control, solely for your personal purposes in connection with recommending, promoting, or publicizing Distributions using the Services. As used herein, “Contribution” means a contribution of funds by you or your employer (as described below) via the Services. Your Contributions will be held by the Foundation in a Donor Advised Fund account for you (your “DAF”). Upon your request, but at the discretion of the Foundation, the Foundation will distribute funds from your DAF (a “Distribution”) to one or more non-profit charitable organizations that have registered for participation with Groundswell (each a “Non-Profit Organization”, including International Non-Profit Organizations defined herein unless otherwise expressly excluded). In order to recommend a Distribution to a Non-Profit Organization, you must (i) establish a DAF with the Foundation in accordance with Section 3 (Your DAF Account) and (ii) have sufficient funds in your DAF at the time we process the Distribution in accordance with Section 5 (Distributions from your DAF).
1.2 Mobile App License. Subject to your compliance with the Agreement, Groundswell grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mobile App on a mobile device that you own or control and to run such copy of the Mobile App solely for your own personal purposes in connection with making Contributions and recommending Distributions. Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions. Notwithstanding the first sentence in this section, you may have additional license rights with respect to use of such App Store Sourced Application on a shared basis with other accounts associated with the purchaser via Family Sharing or volume purchasing. Notwithstanding the first sentence in this section, with respect to any Mobile App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family group.
1.3 Updates. You understand that the Services are evolving. As a result, we may require you to accept updates to the Services that you have installed on your mobile device. Similarly, our web-based platform may be updated from time-to-time. You acknowledge and agree that we may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
1.4 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other elements of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Groundswell’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Groundswell, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any of the Services terminates the licenses granted by us pursuant to the Agreement.
1.5 Groundswell Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Groundswell, the Foundation, and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Groundswell through the Services (“Account”), has a valid account on a social networking service (“SNS”) through which the user has connected to the Services (each such account, a “SNS Account”), or has an account with the provider of the Mobile App for the user’s mobile device. For purposes of this Agreement, Registered User shall also include any and all Non-Profit Organizations that have registered for a Groundswell Account.
2.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services or the Mobile App, you may link your Account with SNS Accounts by allowing Groundswell to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant Groundswell access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating Groundswell to pay any fees or making Groundswell subject to any usage limitations imposed by such SNS. By granting Groundswell access to any SNS Accounts, you understand that Groundswell may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 6.1 (Types of Content)) for all purposes of the Agreement. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personal information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or Groundswell’s access to such SNS Account is terminated by the SNS, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNT(S) IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND GROUNDSWELL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. Groundswell makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Groundswell is not responsible for any SNS Content.
2.3 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Groundswell immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Groundswell has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Groundswell reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Groundswell, or if you have been previously banned from any of the Services.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Groundswell.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Mobile App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. YOUR DAF ACCOUNT
3.1 Establishing a DAF. In order to make Contributions and Distribution recommendations through the Service you will need to open a DAF with the Foundation. Upon becoming a Registered User, making an initial Contribution through the Services, and providing certain Registration Data, which may include a name for the DAF, your preferences for recognition by Non-Profit Organizations, and investment preferences (“DAF Account Data”), the Foundation will establish your DAF Account according to your DAF Account Data and process the initial Contribution. Your DAF is subject to the terms of the Agreement. The Foundation operates all DAFs in compliance with Internal Revenue Code (“IRC”) Sections 4966 and 4967 and their accompanying regulations and guidance.
3.2 Tax Status of DAF. DAFs are component funds of the Foundation; they are not separate legal entities. All Contributions to a DAF are treated as gifts to the Foundation, a public charity, and are generally tax-deductible, subject to individual limitations. We do not provide tax or legal advice and recommend you consult a professional advisor with questions about any Contribution to your DAF.
3.3 Variance Power. All Contributions are irrevocable gifts to the Foundation, and legal control and responsibility for the Contributions rests with the Foundation. All DAFs are subject to the Foundation’s variance power, as set forth in the Foundation’s governing documents. Variance power gives the Foundation authority to modify any restriction or condition on Contributions to and Distributions from a DAF, if, in the sole judgment of the Foundation’s board of directors, such restriction or condition becomes unnecessary, incapable of fulfillment, or inconsistent with the charitable needs of the community.
3.4 Payments from a DAF. Distributions and Transaction Fees are the only payments allowed from a DAF. The Foundation does not permit expense reimbursements, loans, compensation or other similar payments from a DAF.
3.5 Fund Inactivity. In order for your DAF to remain active, you agree to and acknowledge that you must annually recommend Distributions in an amount that totals at least five percent (5%) of total assets held in your DAF as of December 31 in the prior calendar year. If you do not recommend Distributions from your DAF each year equal to or exceeding five percent (5%) of the assets in your DAF, any variance from such percentage will be Distributed in the discretion of the Foundation. We will notify you before any such Distribution.
4. CONTRIBUTIONS TO YOUR DAF
4.1 Contributions to your DAF. Contributions may be made to your DAF as described below. Contributions may be made on a one-time or recurring basis, as controlled by you via the Services. You may, at any time, suspend or change automatic recurring Contributions into your DAF via the Services from your Account profile within the Mobile App or web-based platform or as otherwise provided for in the Services.
(a) Individual Contributions to your DAF. You may individually and directly make Contributions to your DAF via debit or ACH transfers from your personal bank account or by other means of transferring funds into your DAF as may be provided for in the Services. You authorize Groundswell to initiate a single or recurring ACH or electronic debit to your DAF from your personal account in the amount you specify. You agree that ACH transactions that you authorize comply with all applicable law. If you have told Groundswell in advance to make regular payments out of your personal account, you can stop any of these payments by following the procedures outlined in the Services, in time for us to receive your request five (5) business days or more before the payment is scheduled to be made.
(b) Payroll Contributions to your DAF. If your employer’s payroll provider is supported by Groundswell’s payroll deduction service provider (currently Atomic), you may elect to deduct amounts from your paycheck via a payroll provider to be directly deposited to your DAF (the “Deduction Services”). If you participate in such Deduction Services, your employer may deduct funds from your paycheck on a post-tax basis, via the payroll provider, in an amount of your choosing and add said funds directly to your DAF (“Payroll Contribution”). Should your employment with such employer end or should you cancel your participation in the Deduction Services, you shall no longer be able to receive Payroll Contributions into your DAF, however all Payroll Contributions that have been deposited to your DAF shall remain in your DAF and may be used by you to recommend Distributions at your sole discretion. You may re-enroll in Deduction Services with the same employer or a different employer with supported payroll at any time.
(c). Employer Contributions to your DAF. If your employer has entered into an enterprise services agreement with Groundswell (an “Authorized Employer”), such Authorized Employer may directly contribute funds to your DAF (“Employer Contributions”) (for example, in connection with a matching campaign or in recognition of a cause), regardless of whether you participate in Deduction Services and so long as you have an open and active DAF while employed by the Authorized Employer.
4.2 Receipts. Shortly following the end of each calendar year, you shall receive a single tax receipt from the Foundation that indicates the cumulative amount of Contributions you made to your DAF, not including any Employer Contributions or gifts from others, over the course of the immediately preceding calendar year.
4.3 Refunds. Generally, all Contributions and Distributions are non-refundable. If you believe there is an error in a Contribution or Distribution, please contact Groundswell at firstname.lastname@example.org for assistance.
5. DISTRIBUTIONS FROM YOUR DAF
5.1 Recommending Distributions. You can use the Services to recommend Distributions from your DAF to one or more Non-Profit Organizations, subject to the terms and conditions contained herein. All Distribution recommendations are subject to approval by the Foundation in its sole discretion.
5.2 Distribution Requirements. You may only recommend Distributions to Non-Profit Organizations that are either (a) verified nonprofit organizations within the United States with an unrevoked determination by the IRS that each is a public charity under IRC Section 501(c)(3) and 509(a)(1) or 509(a)(2), as listed on Publication 78 or as otherwise verified by the Foundation; or (b) foreign organizations that have either obtained an IRS ruling classifying them as a public charity under IRC Section 501(c)(3) and such determination remains unrevoked, or a third party provider chosen by the Foundation has conducted a current foreign public charity equivalency determination that such organization is the foreign equivalent of a U.S. public charity (each an “International Non-Profit Organization”). Distributions are not permitted for individuals, private foundations, supporting organizations, non-charities, or any other type of person or entity that would require expenditure responsibility under the IRC. We may provide verification services for Non-Profit Organizations that are not listed on Publication 78. All Distributions and all recommendations for Distributions must be for general support of a Non-Profit Organization; Distributions for specific purposes of any kind are not permitted. You hereby represent, and at the time of recommending a Distribution you shall confirm, that no recommended Distribution will provide you or any of your family members or businesses you own with more than incidental benefits, goods, or services. This includes grants to satisfy contractual obligations, or grants in exchange for non-deductible (or partially tax-deductible) memberships, event tickets, sponsorships, registration fees, and cause-related marketing activities. Receipt of such benefits as a result of your recommendation may put you at risk for being subject to excise taxes under IRC Sections 4958 and 4967.
5.3 Distribution Timing. Distributions recommended for the same Non-Profit Organization may be aggregated and paid from the Foundation once per month in the month following the recommendations (the “Distribution Day”). Distributions to International Non-Profit Organizations may take longer.
5.4 Distribution Payments. In the event that you no longer have sufficient funds in your DAF to process your recommended Distribution(s) for a particular month, Groundswell shall notify you at least five (5) calendar days in advance of the Distribution Day. In the event that the funds in your DAF remain insufficient on Distribution Day to fulfill your recommended Distribution(s) for that particular month, such Distribution(s) shall be cancelled.
5.5 Acknowledgements and Publicity. You may elect to have one or more Distribution(s) from your DAF made anonymously, removing your name, fund name, and contact information from all correspondence with the receiving Non-Profit Organization, by selecting the appropriate option at the time you make your recommendations. Unless you expressly elect to have a Distribution made anonymously, you hereby grant us the right to share your fund name, email address, Distribution amount, and memo for the transaction, if applicable, with a Non-Profit Organization in connection with each Distribution. You should not receive a tax receipt from any Non-Profit Organization after a Distribution (as tax benefits may accrue on Contributions, not Distributions); any such receipt you receive is invalid and should be discarded. Groundswell will not forward mail or other correspondence from Non-Profit Organizations to you.
5.6 Fees and Minimums. For each Distribution, Groundswell shall collect a transaction fee in the amount of 1% of the Distribution on behalf of the Foundation, which shall be deducted from the Distribution prior to Groundswell distributing funds to the recommended Non-Profit Organization (“Transaction Fee”). By creating your DAF, you agree that Groundswell is authorized to deduct the Transaction Fee from any Distribution in accordance with the foregoing. For example, if you recommend a Distribution in the amount of $100, Groundswell shall deduct $1.00 as the Transaction Fee and Distribute funds in the amount of $99.00.
6. RESPONSIBILITY FOR CONTENT.
6.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Groundswell, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Groundswell, are similarly responsible for all Content that you and they make available through the Services (“User Content”).
6.2 No Obligation to Pre-Screen Content. You acknowledge that Groundswell has no obligation to pre-screen User Content, although Groundswell reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to Groundswell’s monitoring of Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Groundswell pre-screens, refuses or removes any of Your Content, you acknowledge that Groundswell will do so for Groundswell’s benefit, not yours. Without limiting the foregoing, Groundswell shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.
6.3. Storage. Unless expressly agreed to by Groundswell in writing elsewhere, Groundswell has no obligation to store any of Your Content. Groundswell has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for choosing the appropriate level of access to Your Content. If you do not so choose, the Services may default to the most permissive setting. You agree that Groundswell retains the right to create reasonable limits on Groundswell’s use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Groundswell in its sole discretion.
7.1 Services. Except with respect to Your Content and other User Content, you agree that Groundswell and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and the Software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
7.2 Trademarks. Groundswell, Groundswell Giving, Groundswell Charitable Foundation, and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Groundswell and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
7.3 Your Content. Groundswell does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
7.4 License to Your Content. Subject to any applicable Account settings that you select, you grant Groundswell a fully paid, royalty-free, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may be able to search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You agree that you, not Groundswell, are responsible for all of Your Content.
7.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Groundswell to identify you by your username (which may be a pseudonym) as the contributor of Your Content.
7.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Groundswell through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Groundswell 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 Groundswell a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive 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 and/or Groundswell’s business.
8. USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, violent, sexually explicit, profane, or contains nudity; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Groundswell’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Groundswell; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Software. Groundswell may, in its sole discretion, determine whether any Content posted by you in your profile or otherwise in connection with your use of the Services is in violation of this Agreement, including this Section 8.
9. INTERACTIONS WITH OTHER USERS.
9.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Groundswell reserves the right, but has no obligation, to intercede in such interactions. You agree that Groundswell will not be responsible for any liability incurred as the result of such interactions.
9.2 Content Provided by Other Users. The Services may contain User Content provided by other Registered Users. Groundswell is not responsible for and does not control User Content. Groundswell has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
10. FEES AND PURCHASE TERMS.
10.1 General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. In no way are the fees paid by you under the Agreement considered payment for the sale, license, or use of the Software, and, furthermore, any use of the Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
10.2 Fees and Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You agree to immediately notify Groundswell of any change in your billing address, personal bank account or other funding source used for Contributions (e.g., ACH, debit) hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
10.3 Taxes. Payments required under this Agreement do not include any Sales Tax that may be due in connection with the services provided under the Agreement. If Groundswell determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Groundswell may collect such Sales Tax in addition to any other payments set forth in this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Groundswell, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Groundswell for any liability or expense Groundswell may incur in connection with such Sales Taxes. Upon Groundswell’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.4 Advertising Revenue. Groundswell reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Groundswell has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Groundswell as a result of such advertising).
11. INDEMNIFICATION. You agree to indemnify and hold Groundswell, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors, including the Foundation (each, a “Groundswell Party” and collectively, the “Groundswell Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Groundswell 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 agree to fully cooperate with Groundswell in asserting any available defenses. This provision does not require you to indemnify any of the Groundswell Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 As Is. 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. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. WE DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT GROUNDSWELL’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO SUBMITTED DATA, OR THAT ANY FUNDS WILL BE DISTRIBUTED TO THE NON-PROFIT ORGANIZATION RECOMMENDED IN CONNECTION WITH THE MAKING OF A DISTRIBUTION.
(a) GROUNDSWELL MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SOFTWARE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, 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.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WE MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
12.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT GROUNDSWELL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GROUNDSWELL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER REGISTERED USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
12.3 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is not possible for Groundswell to monitor such materials and that you access these materials at your own risk.
13. LIMITATION OF LIABILITY.
13.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL GROUNDSWELL PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT GROUNDSWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A GROUNDSWELL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GROUNDSWELL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GROUNDSWELL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, GROUNDSWELL PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO GROUNDSWELL BY YOU AND COLLECTED BY GROUNDSWELL FROM YOU AS TRANSACTION FEES DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GROUNDSWELL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GROUNDSWELL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GROUNDSWELL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.4 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.
13.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GROUNDSWELL AND YOU.
14. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Groundswell’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Groundswell by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Groundswell’s Copyright Agent for notice of claims of copyright infringement is as follows: Jacob Wood, Chief Executive Officer, 222 Pacific Coast Highway, Suite 2350, El Segundo, California 90245.
15. MONITORING AND ENFORCEMENT.
15.1 Groundswell reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Groundswell; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
15.2 If we become aware of any possible violations by you of the Agreement, we reserve the right to investigate such violations. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in our possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Groundswell Parties, Registered Users or the public, and all enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate.
16. TERM AND TERMINATION.
16.1 Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
16.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
16.3 Termination of Services by Groundswell. If you have materially breached any provision of the Agreement or if Groundswell is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Groundswell has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Groundswell’s sole discretion and that Groundswell shall not be liable to you or any third party for any termination of your Account.
16.4 Termination of Services by You. If you want to terminate the Services, you may do so by (a) notifying Groundswell at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Groundswell’s address set forth below or in accordance with cancellation instructions as posted by Groundswell on the Mobile App or web-based Platform, as may be updated from time to time.
16.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content, and, upon your separate confirmation and Distribution or transfer of all of your remaining DAF funds, closing of your DAF. If your Authorized Employer continues to use the Services after your termination of the Services, your data may continue to reside in the Services. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Groundswell will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Groundswell community, is discontinued by Groundswell due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Groundswell community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Groundswell reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
17. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Groundswell intends to announce such Services or Content in your country. The Services are controlled and offered by Groundswell from its facilities in the United States of America. Groundswell makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
18. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Groundswell Parties and limits the manner in which you can seek relief from us.
18.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Groundswell Parties, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Groundswell Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
18.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Groundswell will pay them for you. In addition, Groundswell will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
18.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Groundswell Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.4 Waiver of Jury Trial. YOU AND GROUNDSWELL PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Groundswell Parties are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in Los Angeles, California. All other disputes, claims, or requests for relief shall be arbitrated.
18.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Groundswell username (if any), the email address you used to set up your Groundswell account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
18.7 Severability. Except as provided in Section 18.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
18.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Groundswell at the following address: firstname.lastname@example.org.
19. THIRD-PARTY SERVICES.
19.1 Third-Party Service Providers. We use third-party service providers, which may include, among others, Plaid, Pinwheel, Atomic FI, JP Morgan Chase, AtomicVest and Modern Treasury, for payment services (e.g., transfer of funds in connection with Contributions and Distributions, and related authorization services) (“Payment Processors”). By making Contributions using the Services, you agree to be bound by the applicable Payment Processors’ Privacy Policies and Terms of Service and hereby consent and authorize us and the applicable Payment Processors to share any information and payment instructions you provide with one or more other Payment Processor(s) to the minimum extent required to complete your transactions.
The following Payment Processors’ Privacy Policies and Terms of Service remain in effect as of the Last Update Date of this policy: Plaid, Modern Treasury, Datadog, Amazon AWS, and Atomic Financial. Updates to the list of Payment Processors and their policies may be viewed on Groundswell’s website.
19.2 Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under our control. We are not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Groundswell provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
19.3 App Stores. You acknowledge and agree that the availability of the Mobile App and the Services is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Groundswell and not with the App Store. Groundswell, not the App Store, is solely responsible for the Services, including the Mobile App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a cellular or wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
19.4 Accessing and Downloading the Mobile App from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Groundswell only, and not Apple, and (ii) Groundswell, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Groundswell and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Groundswell.
(d) You and Groundswell acknowledge that, as between Groundswell and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Groundswell acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Groundswell and Apple, Groundswell, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Groundswell acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
20. GENERAL PROVISIONS.
20.1 ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES 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 ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
20.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Groundswell Parties agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
20.3 Electronic Communications. The communications between you and Groundswell Parties may take place via electronic means, whether you visit the Services or send us e-mails, or whether we post notices on the Services or communicate with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
20.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
20.5 Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
20.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
20.7 Notice. Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
20.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20.9 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
20.10 Export Control. You may not use, export, import, or transfer any 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 terrorism or assisting in terrorism, or the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Groundswell and the Foundation 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 Groundswell or Foundation products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
20.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
20.12 Entire Agreement. The Agreement is 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.