Gift The Band User’s Terms & Conditions
Date of last Revision: May 6, 2019
Gift The Band provides its services through its website and mobile applications (the “Platform”) and related services (collectively, such services, including any new features and applications, and the Platform, the “Services”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). If you are a User, your Donors will be using Gift The Band’s Services to facilitate donation/gift transactions. For purposes of the following Terms of Service, “Gift The Band”, “we,” “us,” “our,” and other similar terms shall refer to Gift The Band’s service. All donations/gifts will flow through the 501(c)3 non-profit Mobile Wallet Gifting Corp. via transaction and payment provider partners. All donation transactions will appear on Donor billing accounts as Mobile Wallet Gifting Corp.
Donations: All donations go to the Account Holder of the intended artist, band or musician less any applicable fees via a payment provider. Fees include a Primary Transaction Provider (Bank of America/Authorize.net) and a Platform hosting service fee to Gift The Band. Also, there may be additional fees from other Third-Party Providers such as PayPal, Venmo, Apple Pay etc. In order to contribute to an artist, band or musician, a Donor will be required to provide a transaction provider information regarding their credit card or other payment instrument that is linked to the Donor via the Services. Each Donor represents and warrants to Gift The Band and our transaction provider that such information is true and that they are authorized to use the applicable payment instrument. Donors agree that a certain minimum Donation amount may apply, and that all Donation payments are final and will not be refunded unless Gift The Band, in its sole discretion, agrees to issue a refund. Gift The Band uses third-party payment transaction providers to bill Donors through their Payment Instrument and Bill Account for any Donations made, and Donors acknowledge that by making a Donation to an artist, band or musician, the Donor agrees to any and all applicable terms set forth by our transaction provider.
Arbitration and class action waiver: Except as otherwise described in the disputes section below, by using the Services, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. Please review the disputes section carefully; by using the Service, you expressly acknowledge that you have read and understand all of the terms of this agreement.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do so, we will post the changes on this page and will indicate the date these terms were last revised. We will also endeavor to notify you, either through the Service user interface, in an email notification or through other reasonable means, and unless otherwise stated, Gift The Band may communicate with you officially by any reasonable means now known or later developed. These currently include, email, regular mail, and postings on the Platform. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that (i) changes addressing new functions of the Services or changes made for legal reasons will be effective immediately, and (ii) changes or modifications to the provisions of these Terms of Service governing the disputes section shall be made as specific therein.
Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms of Service. To the extent allowed by law, the English version of these Terms of Service is binding, and other translations are for convenience only. If you do not wish to accept the new Terms of Service, you may discontinue your use of the Services.
Access and Use of the Services
Services Description: The Services are offered as a platform to users of the Services, which may include artists, bands, musicians, Account Holders and Donors. Among other services, the Services are designed to allow artists, bands, musicians and Account Holders to promote the platform in order to accept monetary donations/gifts. For purposes hereof, the term “Account Holder” shall also be deemed to include any individual(s) designated as a beneficiary for a User Account. Although there are no fees to set up an account, industry standard payment processing and platform fees apply to each donation/gift.
Charitable Giving: You understand and acknowledge that Gift The Band, the artists, bands and musicians we support, are not a professional charitable organizations, notwithstanding any affiliates, that may qualify for 501(c)(3) status, and accounts are not charities to which your donors can make tax-deductible charitable contributions.
Gift The Band is a Platform: Gift The Band is not a broker, financial institution, creditor or charitable institution. The Services are an administrative platform only. Gift The Band facilitates the donation transaction between Account Holders and donors but is not a party to any agreement between an Account Holder and a donor, or between any users. Gift The Band is not a broker, agent, financial institution, creditor or insurer for any user. Gift The Band has no control over the conduct of, or any information provided by an Account Holder or any other user, and Gift The Band hereby disclaims all liability in this regard to the fullest extent permitted by applicable law.
All information and content provided by Gift The Band through the Services is for informational purposes only, and Gift The Band does not guarantee the accuracy, completeness, timeliness or reliability of any such information or content. No content is intended to provide financial, legal, tax or other professional advice.
Service/Platform Guarantee: Gift The Band does not guarantee that User Accounts will obtain a certain number of donations/gifts or any at all. We do not personally endorse any User Account or Account Holder, and we make no guarantee, explicit or implied, that any information provided through the Services by a user is accurate. We expressly disclaim any liability or responsibility for the success of any User Account, or the outcome of any fundraising purposes. All donors must make the final determination as to the value and appropriateness of contributing to any artist, band or musician.
All donations/gifts are at the donor’s own risk. When donors make a donation/gift to an artist, band or musician, or otherwise through the Services, it is their responsibility to understand how your money will be used. Gift The Band is not responsible for any offers, promises, rewards or promotions made or offered by artists, bands, musicians and/or Account Holders. We do not and cannot verify the information that Account Holders supply, nor do we guarantee that the donations will be used in accordance with any fundraising purpose prescribed by an artist, band, musician and/or Account Holder. We assume no responsibility to verify whether the donations/gifts are used in accordance with any applicable laws; such responsibility rests solely with the Account Holder, as applicable. While we have no obligation to verify that the use of any funds raised is in accordance with applicable law and these Terms of Service, we take possible fraudulent activity and the misuse of funds raised very seriously.
Taxes: It is the responsibility of the artist, band, musician or Account Holder to determine what, if any, taxes apply to the Donations/Gifts they receive through use of the Services. It is solely their responsibility to assess, collect, report or remit the correct tax, if any, to the appropriate tax authority.
User Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree (a) immediately to notify Gift The Band of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you sign out from your account at the end of each session when accessing the Services. Gift The Band will not be liable for any loss or damage arising from your failure to comply with this section.
Modifications of Services: Gift The Band reserves the right to modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof). We will endeavor to give you notice of any such modification, suspension or discontinuance. You agree that, to the extent permitted by law, Gift The Band will not be liable to you for any modification, suspension or discontinuance of the Services in accordance with these Terms of Service.
Public Content: Some of your activity on and through the Services is public, such as content you post publicly on the website or Services. Additionally, user profile information, including your first and last name, public email address, organization, personal biography, and other information you enter in connection with your profile may be displayed to other users to facilitate user interaction within the Services. Please remember that if you choose to provide information using certain public features of the Services, then that information is governed by the privacy settings of those particular features and may be publicly available. Be aware, individuals reading such information may use or disclose it to other individuals or entities without our control and without your knowledge, and search engines may index that information. We therefore urge you to think carefully about including any specific information you may deem private that you create or information that you submit through the Services.
General Practices Regarding Use and Storage: You acknowledge that Gift The Band may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Gift The Band servers on your behalf. You agree that Gift The Band has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that Gift The Band reserves the right to terminate User Accounts that are inactive for an extended period of time. You further acknowledge that Gift The Band reserves the right to change these general practices and limits at any time, in its sole discretion. We will endeavor to give you notice of any such change where required by applicable law.
Mobile Services: The Services include certain features that are available via a mobile device, including, but not limited to (i) the ability to upload content to the Platform via a mobile device, (ii) the ability to browse the Platform form a mobile device and (iii) the ability to access certain features through a mobile device, with or without an application downloaded and installed on that mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Gift The Band and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your message or other electronic means to your mobile device and that certain information about your usage of the Mobile Serves may be communicated to us. We shall comply with any additional requirements that may apply under local laws and regulations before communicating with you in this manner. In the event that you change or deactivate your mobile telephone number, you agree to promptly update your Gift The Band account information to ensure that your messages are not sent to the person that acquires your old number.
Conditions of Use
User Conduct: You agree to fully cooperate with any request by Gift The Band for evidence it deems in its sole discretion is appropriate to verify your compliance with these Terms of Service.
The following are examples of the kind of content and/or use that is illegal or prohibited by Gift The Band. However, this list is not exhaustive and Gift The Band reserves the right to investigate anyone by engaging public and private organizations, including, but not limited to collections agents, private investigators, and local, state federal and applicable international agencies, and take appropriate action against anyone who, in Gift The Band’s sole discretion, violates any of the terms or spirit of these Terms of Service (or principles described in our preamble hereto), including, without limitation, removing the offending content, suspending or terminating the account of such violators, stopping payments to such promotion, freezing or placing a hold on the donated funds when Gift The Band reasonable believes it to be required by applicable law, and reporting you to law enforcement authorities or otherwise taking appropriate legal action including seeking restitution on behalf of itself and/or its users. Without limiting the foregoing, you agree to not use the Services to:
A. In connection with any of the following activities or items, including by establishing or contributing to any User Account with the implicit or express purpose relating to any of the following:
- any activity that violates any law or governmental regulation industry requirements, or third-party guidelines or agreements to which you are a party, including from payment card transaction providers that you utilize in connection with the Services;
- content, campaigns or User Accounts that are fraudulent, misleading, inaccurate, dishonest, impossible or imitating any other person or fundraising campaign (whether on the Platform or not);
- illegal drugs, narcotics, steroids, controlled substances, pharmaceuticals or other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body, legal substances that provide the same effect as an illegal drug or other products that present a risk to consumer safety or any related equipment or paraphernalia;
- knives, explosives, ammunition, firearms, or other weaponry or accessories;
- annuities, investment, equity or lottery, lay-away systems, off-shore banking or similar transactions, money service business (including currency exchanges, check cashing or the like), pyramid schemes, “get rich quick schemes” (i.e., investment opportunities or other services that promise high rewards), network marketing and referral marketing programs, debt collection or cypto-currencies;
- gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, fantasy sports, horse or greyhound racing, lottery tickets, raffle tickets, auctions and other ventures that facilitate gambling, games of skill or chance (whether or not it is legally defined as a lottery) or sweepstakes;
- campaigns deemed by Gift The Band, in its sole discretion, to be in support of, or for the legal defense of alleged crimes associated with hate, violence, harassment, bullying, discrimination, terrorism, or intolerance of any kind relating to race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender or gender identity, or serious disabilities or disease;
- activities with, in, or involving countries, regions, governments, persons, or entities that are subject to U.S. and other economic sanctions under applicable law, unless such activities are expressly authorized by the appropriate governmental authority;
- funding a ransom, human trafficking or exploitation, vigilantism, bribes or bounty;
- pornography or other sexual content;
- offensive, graphic, perverse or sensitive content;
- offering monetary rewards, including gift cards;
- transactions for the sale of items before the seller has control or possession of the item;
- collection of payments on behalf of merchants by payment processors or otherwise; including but not limited to self-payments on campaigns or an attempt to bypass or otherwise circumvent the designated method of payments as provided by Gift The Band;
- credit repair or debt settlement services;
- to receive or grant cash advances or lines of credit to yourself or to another person for the purposes other than those purposes clearly stated in the promotion or campaign.
- Publication or removal of content (such as mug shots), where the primary purpose or posting such content is to cause or raise concerns of reputational harm;
- Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value;
- Aggregation of funds owed to third-parties, factoring, or other activities intended to obfuscate the origin of funds;
- Counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder;
- Products or services that directly infringe or facilitate infringement upon the trademark, patent, copyright, trade secrets, or proprietary or privacy rights of any third-party;
- Unauthorized sale or resale of brand name or designer products or services;
- Sale of goods or services that are illegally imported or exported;
- Processing where there is no bona fide donation accepted; card testing; evasion of card network chargeback monitoring programs;
- collecting or providing funds for any purpose other than as described in a campaign or promotion description; or
- any other activity that Gift The Band may deem in its sole discretion to be unacceptable.
B. to transmit or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designated to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” ‘pyramid schemes,” “contests,” ‘sweepstakes,” or any other form of solicitation; or (vi) in the sole judgement of Gift The Band, is objectionable or which restricts or inhibits any other artist, band, musician or donor from using or enjoying the Services, or which may expose Gift The Band or its users to any harm or liability of any type; or
C. to interfere with or disrupt the Services or services or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
D. to harvest to collect email addresses or other contact information of other users from Services by electronic or other means.
E. to raise funds for a minor without the express permission of the minor’s guardian unless the funds are transferred into a robust account for the sole benefit of the minor.
Additionally, with respect to all donations and gifts you make through the Services, you agree:
- not to make any donations that you know or suspect to be erroneous, suspicious or fraudulent;
- not to use the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by ay government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC);
- to maintain reasonable and standard security measures to protect any information transmitted and received through the Services, including without limitation by adhering to any security procedures and controls required by Gift The Band from time to time;
- at Gift The Band’s request, including without limitation in case of investigations by Gift The Band, a payment process partner, or a regulatory or governmental authority, fully cooperate in the auditing of such records, investigation of the relevant circumstances and remedy of any uncovered violation or wrongdoing.
Gift The Band reserves the right to refuse, condition, or suspend any Donations/Gifts or other transactions that we believe in our sole discretion may violate the Terms of Service or harm the interests of our users, business partners, the public, or Gift The Band, or that expose you, Gift The Band, or others to risks unacceptable to us. We may share any information related to your use of the Services with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This may include information about you, your account, your donors, your donations, and transactions made through or in connection with your use of the Services.
Rewards: Rewards are not intended to be items available on Gift The Band.
How Donations are made: Donations/Gifts made to an Account Holder (or, as applicable, the beneficiary designated by the Account Holder), are passed from Gift The Band directly to a qualified financial account, less any applicable fees and any Holds that we or our payment partners may place on your account. Donations/Gifts, less applicable transaction and platform fees are sent via electronic wire transfer to an Account Holder’s designated financial account. Paper checks will not be used to transfer funds. While Gift The Band strives to make financial transfers available promptly, transfers may not be available for use immediately, and Gift The Band does not guarantee that transfers will be available within any specific time frame, and Gift The Band expressly disclaims any and all responsibility for any delay or inability to access and use transfers at any specific time, and any consequences arising from such delay or inability. You, as an Account Holder, are responsible for ensuring that the information you provide to Gift The Band in order to process a transfer, including bank account information, is accurate and up to date. Gift The Band may, at any time, for any reason, and in its sole discretion, offer or issue a refund of donation(s) with or without consulting with you.
You expressly authorize Gift The Band’s service provider, Dwolla, Inc., to originate credit transfers to your financial institution account.
Services Content, Software and Trademarks: You acknowledge and agree that the Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Gift The Band, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Gift The Band from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of Gift The Band, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Gift The Band.
The Gift The Band name and logos are trademarks and service marks of Gift The Band (collectively the “Gift The Band Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners, who may or may not endorse or be affiliated with or connected to Gift The Band. Nothing in these Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Gift The Band Trademarks displayed on the Services, without or prior written permission in each instance. All goodwill generated from the use of Gift The Band Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Gift The Band be liable in any way for any content or materials of any third-parties (including users and Account Holders) or any (defined below), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Gift The Band does not pre-screen content, but that Gift The Band and its designees will have the right (but not the obligation) in their sole discretion to refuse, remove, or allow any content that is available via the Services. Without limiting the foregoing, Gift The Band and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Gift The Band, in its sole discretion, to be otherwise objectionable.
User Content Transmitted Through the Services: With respect to the content, photos, videos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to, or otherwise have all necessary rights and consents to (and to allow others to) fully exploit, such User Content, including, without limitation, as it concerns all copyrights, trademark rights and rights of publicity or privacy related thereto. By uploading, sharing, providing, or otherwise make available any User Content, or any portion thereof, in connection with the Services, you hereby grant and will grant Gift The Band and affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store modify and otherwise use your User Content in connection with the operation of their Servicers or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. With limiting the foregoing, if any User Content contains your (or the artist, band or musician you represent) name, image or likeness, you hereby release and hold harmless Gift The Band and its contractors and employees, from (i) all claims for invasion of privacy, publicity or libel, (ii) any liability or other claims by virtue of any blurring, distortion, alteration, optical illusion, or other use or exploitation of your (or the artist, band or musician you represent) name , image or likeness, and (iii) any liability for claims made by you (or any successor to any claim you might bring) in connections with your User Content, name, image or likeness. You waive any right to inspect or approve any intermediary version(s) or finished version(s) of the results of the use of your User Content (including name, image or likeness of you or the artist, band or musician you represent). Further, if any person (other than you or the artist, band or musician you represent) appears in your User Content, you represent and warrant that you have secured all necessary licenses, waivers and releases from such person(s) for the benefit of Gift The Band in a manner fully consistent with the licenses, waivers and releases set forth above. You further acknowledge that your participation in the Services and submission of the User Content is voluntary and that you will not receive financial compensation of any type associated with the licenses, waivers, and releases set forth herein (or Gift The Band’s exploitation thereof), and that the sole consideration for subject matter of the agreement is the opportunity to use the Services.
We do not guarantee that any Services Content will be made available through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Services Content or User Content, in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third-parties or authorities relating to such Service Content or User Content, or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Services Content or User Content from the Services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to Gift The Band are non-confidential and Gift The Band will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
You acknowledge and agree that Gift The Band may preserve content and may also disclose content if required to do so by law or in the good-faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Gift The Band, its users or the public.
Payment Card Industry Data Security Standard: The Payment Card Industry Data Security Standard (PCI DSS) is a set of industry-mandated requirements for any business that handles, process, or stores credit cards. The primary purpose of the standards is to maintain controls around cardholder data to reduce credit card fraud. As a service provider, Gift The Band’s transaction providers (Authorize.net, PayPal, Apple Pay) are PCIDSS compliant and will maintain all applicable PCI DSS requirements to the extent that they possess or otherwise store, process, or transmit cardholder data on behalf of you, or the extent that they can in any way impact the security of your cardholder data environment.
Copyright Complaints: Gift The Band respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Gift The Band of your infringement claim in accordance with the procedure set forth below.
Gift The Band will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Gift The Band’s copyright agent at email@example.com (subject line: “DMCA Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical or signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter notice containing the following information to the above listed Copyright Agent.
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter notice is received by the Copyright Agent, Gift The Band will send a copy of the counter notice to the original complaining party, informing that person it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restricted, in 10 to 14 days or more after receipt of the counter notice, at our sole discretions.
Repeat infringer Policy: In accordance with the DMCA and other applicable law, Gift The Band has adopted a policy of terminating, in appropriate circumstances and at Gift The Band sole discretion, users who are deemed to be repeat infringers. Gift The Band may also at its sole discretion limit access to the Services and/or terminate the memberships of any users infringing on any intellectual property rights of others, whether or not there is any repeat infringement.
The Services of third-parties may provide or facilitate links, tools, widgets or other features that allow you to access other sites, services and resources provided by third-parties (collectively, “Third-Party Resources”). Gift The Band has no control over Third-Party Resources or any products, services or content made available through or by such Third-Party Resources, or the business practices of the third-parties providing such Third-Party Resources, and Gift The Band is not responsible for and does not endorse such Third-Party Resources or the products, services or the content made available thereby. You acknowledge that Gift The Band is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third-Party Resources. You further acknowledge and agree that Gift The Band will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connections with use of or reliance on any content, events, goods or services available on or through any such Third-Party Resources. Any dealings you have with third-parties found while using the Services are between you and the third-party and may be subject to additional terms provided by the third-party, which you agree to by using such Third-Party Resources, and you agree that Gift The Band is not liable for any loss or claim that you may have against any such third-party.
Indemnity and Release
You agree to release, indemnify on demand and hold Gift The Band and its affiliates and their officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorney’s fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, any donation, any user content, your connection to the Services, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which is known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, in or outside of the United States, you waive any comparable statute or doctrine.
Disclaimer of Warranties
Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis. Gift The Band and its affiliates expressly disclaim and exclude, to the fullest extent permitted by applicable law, all warranties, conditions and representations of any kind, whether express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
Gift The Band and its affiliates make no warranty or condition that (I) the Service will meet your requirements, (II) the Service will be uninterrupted, timely, secure, or error-free, (III) the results that may be obtained from the use of the services will be accurate or reliable, or (IV) the quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations.
Limitation of Liability
You expressly understand and agree that, to the fullest extent permitted by applicable law, neither Gift The Band nor its affiliates will be liable for any (A) indirect, incidental, special, consequential, punitive or exemplary damages, (B) damages for loss of profits, (C) damages for loss of goodwill, (D) damages for loss of use, (E) loss or corruption of data, or (F) other intangible losses (even if Gift The Band has been advised of the possibility of such damages), whether based on contract, tort, negligence , strict liability of otherwise, resulting from (I) the use or the inability to use the Service; (II) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (III) any promotions and related prizes or rewards made available through the Services; (IV) unauthorized access to or alteration of your transmission or data; (V) statements or conduct of any third-party on the Service; or (VI) any other matter relating to the Service. To the fullest extent permitted by applicable law, in no event will Gift The Band’s total liability to you for all damages, losses (including contract, negligence, statutory liability or otherwise) or causes of action exceed the amount you have paid Gift The Band in the last six months, or, if greater, one hundred dollars ($100).
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations set forth above may not apply to you. If you are dissatisfied with any portion of the Service or with these Terms of Service, your sole and exclusive remedy is to discontinue use of the Services.
Arbitration clause and class action waiver – important -please review how this affects your legal rights.
Arbitration; Waiver of Trial by Jury. You agree that all disputes between you and us or any of our Officers, Directors or Employees acting in their capacity as such (whether or not such dispute involves a Third-Party) with regard to your relationship with us, including without limitation disputes related to these terms of service, your use of the Services, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the JAMS, Inc. (“JAMS”) rules for arbitration of consumer-related disputes, and you and we hereby expressly waive trial by jury; provided, however, that we or you may seek injunctive or other equitable relief in any state or federal court having jurisdiction to grant it in the event of an actual or threatened infringement or misappropriation of intellectual property rights. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would in court may not be available in arbitration.
Small Claims Court; Class Action Waiver. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. You are giving up your right to participate as a class representative or class member on any class claim you may have against us including without limitation any right to class arbitration or any consolidation of individual arbitrations. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.
Procedures. These dispute resolution provisions will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event that JAMS is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgement on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have the authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services of the Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
30 Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Disputes section, you must notify us in writing within thirty (30) days of the date that you first accept these Terms of Service (unless a longer period is required by applicable law), and then you must litigate any disputes against us in accordance with the Governing Law and Jurisdiction section below. Your written notification must be mailed to us at the address set out at the end of these Terms of Service. If you do not notify us in accordance with this paragraph, you agree to be bound by the terms of this Disputes section, including without limitation the arbitration and class-action waiver provisions, and further including such provisions in any revisions we make to these Terms of Service after the date of your first acceptance. Such notification must include: (i) your name; (ii) your email and mailing address, and (iii) a statement that you do not wish to resolve disputes with us through arbitration or waive your ability to participate in a class action. If we make any changes to this Disputes section (other than a change to the address at which we will receive notices or rejections of future changes to this Disputes section), you may reject any such change by sending us written notice, within thirty (30) days of the change, to the address set out at the end of these Terms of Service. It is not necessary to send us a rejection of a future change to this Disputes section if you had properly opted out within the first thirty (30) days after you first accepted the provisions in this Disputes Section. If you have not properly opted out, then by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Disputes section, as modified by any changes you did not reject. A notification sent pursuant to this paragraph solely affects these Terms of Service; if you previously entered into other arbitration or dispute resolution agreements with us or entered into other such agreements in the future, your notification that you are opting out of the provisions is this Disputes section shall not affect the other arbitration agreements between you and us.
Severability. If any of the prohibitions against class actions and other claims brought on behalf of the third-parties contained above is found to be unenforceable, then all the preceding language in this Disputes section will be null and void. This Disputes section, including without limitation the arbitration agreement and class action waivers contained herein, will survive the termination of your relationship with us.
Notwithstanding any provision in these Terms of Service to the contrary, we agree that if Gift The Band makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. The provisions of this arbitration agreement shat only be in effect to the extent they are permitted under applicable laws. If the JAMS Rules cannot be applied to an arbitration under applicable law, then the rules of the local governing arbitration body shall apply instead.
You agree that Gift The Band, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services under reasonable circumstances, including, without limitation, for lack of use or if Gift The Band believes that you have violated or acted inconsistently with the spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to the Services under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Gift The Band may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services where such deactivation or deletion is permitted under these Terms of Service. Further, you agree that Gift The Band will not be liable to you or any third-party for any termination of your access to the Services.
You agree that you are solely responsible for your interactions with any other user in connection with the Services and Gift The Band will have no liability with respect thereto. Gift The Band reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
These Terms of Service constitute the entire agreement between you and Gift The Band and govern your use of the Services, superseding any prior agreement between you and Gift The Band with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of Virginia without regard to its conflict of the law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Gift The Band agree to submit to the personal and exclusive jurisdiction of the state of federal courts located in Fairfax County, Virginia. The failure of Gift The Band to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be (or are otherwise) invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given electronic form will be admissible in judicial or administrative proceedings base upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Gift The Band, but Gift The Band may assign or transfer these Terms of Service, in whole or in part, without restriction. If we fail to enforce any of our rights, that does not result in a waiver of that right. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Platform.
Question? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Services.
Gift The Band
11654 Plaza America Dr. #767
Reston, VA 20190