Affect Change, Inc. on behalf of itself and all of its affiliates and subsidiaries, including, but not limited to, (collectively, “Affect Change” or “we”) offers and operates the Affect Change App, www.santaclausaffect.com, www.affectchange.us, and other websites Affect Change may create (collectively, the “Affect Change Websites”), and any other features, content, or applications Affect Change may offer from time to time in connection with the Affect Change Websites (collectively, the “Affect Change Services”).
The Affect Change Services provide a visual-media platform made up of stories and videos that show individuals positively impacting the lives of other individuals.
Registered Members (as defined below) can create and share Content (as defined below) including photos, videos, and other information as permitted by the Affect Change Services.
THESE TERMS ARE A LEGAL AGREEMENT BETWEEN US
Affect Change may stop (permanently or temporarily) providing all or any portion of the Affect Change Services (or any features of the Affect Change Services) to you or to Users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
YOU MUST AGREE TO THE TERMS TO USE THE SERVICE
Please read these Terms carefully. If you do not agree to be bound by the Terms, you should stop using the Affect Change Services immediately. You agree to and accept the Terms when you:
- Download the Affect Change App and become an Affect Change Member;
- Communicate with other Members through the Affect Change Services; or
- Use the Affect Change App Services.
USE MAY REQUIRE DOWNLOAD AND ACTIVATION OF SOFTWARE
Some Affect Change Services may require you to download software or content and/or agree to additional terms and conditions which are expressly incorporated into these Terms.
We may modify the Terms at any time and any modifications shall be effective upon posting. You agree and accept any modifications when you use the Affect Change Services after posting of such modifications. You should review the Terms from time to time.
Affect Change reserves the right to reject, refuse to post, or remove any posting by you, or to restrict, suspend, or terminate your access to the Affect Change Services, at any time and without any liability to you. Affect Change reserves the right to moderate Content (as defined below) on our platform and may modify Content at Affect Change’s sole discretion, but nothing in these Terms requires Affect Change to modify or remove any User content from the Affect Change Services.
Affect Change further reserves the right to modify headers or titles to any uploaded User content or change the channel designation of any User content, at any time and without any liability to you, but nothing in these Terms requires Affect Change to undertake such actions.
Use of and Membership in the Affect Change Services is void where prohibited. By using the Affect Change Services, you represent and warrant that:
- All registration information you submit is truthful and accurate;
- You will maintain the accuracy of such information;
- You are 13 years of age or older; and
- Your use of the Affect Change Services does not violate any applicable law or regulation.
The Affect Change Services are hosted in the United States.
The Terms shall remain in full force and effect while you use the Affect Change Services or are a Member. Affect Change may terminate your Membership at any time, without warning and without any liability to you except as expressly set forth in these Terms. Even after Membership is terminated, the following provisions of these Terms will remain in full force and effect: Your Promises to Us; Member Disputes; Limitation on Liability; Dispute Resolution; Indemnity; and Other.
PROTECT YOUR PASSWORD AND ACCOUNT INFORMATION
When you sign up to become a Member, you will also be asked to choose a username and password, unless you connect via “Facebook” or another third-party service. You agree to maintain the confidentiality of your password and not disclose it to others. You agree not to use the account, username, trademark, or password of another Member at any time. Affect Change reserves the right to terminate access to the Affect Change Services by any User whose username violates a third party’s trademark or may mislead or confuse other Users. You agree to notify Affect Change immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for use of your account prior to any disabling of your account by Affect Change following receipt of notice of suspected unauthorized use. Affect Change reserves the right to refuse service and/or terminate a username in its sole discretion.
NON-COMMERCIAL USE BY MEMBERS
You may not use the Affect Change Services for any commercial or non-personal purpose without Affect Change’s express written permission. The Affect Change Services are evolving, and are generally intended for personal use and limited commercial use. If your use undermines our ability to offer the Affect Change Services we reserve the right to terminate your account or otherwise limit your activities on Affect Change at any time in our sole discretion and without any liability to you.
YOU MAY NOT SPAM OR OTHERWISE USE AFFECT CHANGE SERVICES FOR ANY ILLEGAL PURPOSES
Illegal and/or unauthorized use of the Affect Change Services, including collecting names, usernames, email addresses, and/or phone numbers of Users by electronic or other means for the purpose of sending unsolicited email or any other communications is prohibited.
PROPRIETARY RIGHTS IN CONTENT ON AFFECT CHANGE
“Content” includes text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials made available or posted on or through the Affect Change Services.
Content you post and your license to us.
- You keep your rights to your Content. Affect Change does not claim any ownership rights in the Content that you display, or publish (“Posting”), you are simply granting Affect Change a non-exclusive license as set forth in these Terms. After Posting, you continue to retain any rights you may have in such Content, and you continue to have the right to use your Content in any way you choose.
- You grant us a license to your Content. By Posting any Content on or through the Affect Change Services, you grant to Affect Change an unrestricted, assignable, sublicensable (through multiple sublicensees), revocable (except as limited below), royalty-free license throughout the universe, to communicate to the public, reproduce, distribute, store, transcode, syndicate, broadcast, reproduce, edit, modify, create derivative works from, and otherwise use and reuse your Content (or any portions or derivative works thereof), through any and all distribution channels and devices, whether now known or hereafter created, including for purposes of advertising, marketing, and promoting the Affect Change Services, and to authorize any third parties to do the same with your Content, provided such third parties are engaging in such activities, solely for non-commercial purposes. This means that your license grant to Affect Change in these Terms authorizes Affect Change to sublicense other Users of the Affect Change Services, to use and exploit your Content for personal and non-commercial purposes. This may include, by way of example and not limitation, the reposting of your Content on third party websites and even the printing of any photographs that you upload, either on a personal printer or through a commercial film processing company. In contrast to other social media and sharing services, no third party is authorized by Affect Change to use your content for any commercial purposes, and you retain all private causes of action you may have against such third parties.
Notwithstanding the immediately preceding paragraph, to the extent Affect Change has sublicensed any of your Content to a third party pursuant to the grant of rights set forth in this paragraph, the sublicense granted to such third party shall survive in perpetuity any revocation of your license grant to Affect Change and shall be irrevocable. Therefore, even though you may remove any of your Content from the Affect Change Services and terminate your license grants to Affect Change with respect to such Content, any sublicenses made by Affect Change to any third parties with respect to such Content prior to the removal of your Content from the Affect Change Services shall survive in perpetuity notwithstanding your removal of your Content from the Affect Change Services.
- We May Display Ads with Your Content. The Affect Change Services may include advertisements, which may be targeted to the Content or information on the Affect Change Services, queries made through the Affect Change Services, or other information. The types and extent of advertising by Affect Change on the Affect Change Services are subject to change at any time and without notice. In consideration for Affect Change granting you access to and use of the Affect Change Services, you agree that Affect Change and its third-party providers and partners may place such advertising on the Affect Change Services or in connection with the display of your Content or information from the Affect Change Services, whether submitted by you or others. Affect Change may also use your Content for other advertising and promotional purposes without restriction, including by licensing it to others.
- What Your License Means. Without this license, Affect Change might be unable to provide the Affect Change Services. For example, without the right to modify Member Content, Affect Change might not be able to digitally compress and/or resize photos that Members submit or otherwise format Content to satisfy technical requirements, and without the right to publicly perform Member Content, Affect Change might not be able to allow Users to listen to music Posted by Members. The license you grant to Affect Change is non-exclusive (meaning you are free to license your Content to anyone else in addition to Affect Change), fully-paid and royalty-free (meaning that Affect Change is not required to pay you for the use on the Affect Change Services of the Content that you post), sublicensable (so that Affect Change is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Affect Change Services, and worldwide (because the Internet and the Affect Change Services are global in reach).
- Your Promises to Us.
You represent and warrant that:
- You own all rights in and to the Content posted by you on or through the Affect Change Services or otherwise have the right to grant the license set forth in these Terms, and
- The posting of your Content on or through the Affect Change Services, does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person, or require Affect Change to obtain any licenses from or make any payments to any third party, including, but not limited to, any sound recording copyright owner, any musical work copyright owner, any featured or non-featured musician or vocalist, any representatives of any of the foregoing, including, but not limited to Performing Rights Organizations (“PROs”).
- You agree to pay any or all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Affect Change Services and publicly performed, publicly displayed, communicated to the public or otherwise used or exploited.
- If you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the Content you intend to upload or transmit to or through the Affect Change Services, then you must not upload the Content to or through the Affect Change Services. In addition, if you only own the rights in and to a sound recording, for example, but not to any underlying musical works embodied in such sound recording, then you must not upload such sound recording to the Affect Change Services unless you obtain all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to sublicense to Affect Change according to these Terms.
- Specific Rules for Musical Works. If you are a composer or author of a musical work and have affiliated with a PRO, then you must notify your PRO of the royalty free license granted by you to Affect Change through these Terms. Each PRO has different rules with respect to providing notification for a direct license. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty free license set forth in these Terms or have such music publisher enter into these Terms with Affect Change. Just because you authored a musical work (e.g., wrote a song) doesn’t mean you have the right to grant Affect Change the licenses contained in these Terms.
- Confirmation of Rights. Affect Change reserves the right to demand confirmation from you in writing of all authorizations, licenses, permissions, and consents obtained by you (if any) with respect to any third-party materials embodied in Content you upload to or transmit through the Affect Change Services. If you fail to provide us with such confirmation upon request, we reserve the right to remove or deny access to any or all of your Content available on or through the Affect Change Services and to suspend or terminate your account with Affect Change. Affect Change will have no liability to you for any actions taken by it pursuant to this section.
OUR LICENSE TO YOU
- Affect Change Content. The Affect Change Services contain Content of Affect Change (“Affect Change Content”) or its licensors. Affect Change Content is protected by copyright, trademark, patent, trade secret, and other laws, and Affect Change or its licensors own and retain all rights in the Affect Change Content and the Affect Change Services.
- License to You. Affect Change hereby grants you a limited, revocable, nonsublicensable, nonassignable, royalty free license to reproduce and display the Affect Change Content (excluding any software code) solely for your personal, non-commercial use in connection with viewing the Affect Change Websites and using the Affect Change Services.
- The Affect Change Services Contain Content of Users and Other Affect Change Licensors. Except for your Content, you may not reproduce, copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, communicate or sell any Content appearing on or through the Affect Change Services except that you may view such Content in connection with accessing the Affect Change Services to the extent authorized by us or other Members. If you download any Content not owned by you, you are strictly liable for any use of such Content not authorized by these Terms, including the redistribution of such Content to third-party social media sites. For example, if you upload Content to a third-party social media site, you are responsible for ensuring such upload is subject to these Terms and not superseded by such third-party’s terms of service. Notwithstanding the previous sentence, embedding links to Content on third-party sites shall not be considered a violation of these Terms.
- There are no implied license grants in these Terms to you.
RULES FOR CONTENT AND ACTIVITIES
- Offensive Content May Be Deleted and Membership Terminated and Other Actions May Be Taken Including Law Enforcement Referrals. Affect Change may delete any Content that in the sole judgment of Affect Change violates this Agreement or which may be offensive, illegal, harm, threaten, or violate the rights or the safety of any person, or harm the reputation of Affect Change, or its officers, directors, employees, investors, or affiliates. Affect Change reserves the right to investigate and take appropriate legal action against anyone who, in Affect Change’s sole discretion, violates this Agreement, including without limitation, reporting you to law enforcement authorities. A more extensive list of prohibited Content and Activities appears below.
- Affect Change is Not Responsible for Content. Affect Change assumes no responsibility for monitoring the Affect Change Services for inappropriate Content or conduct. If at any time Affect Change chooses, in its sole discretion, to monitor the Affect Change Services, Affect Change nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. Content is not necessarily reviewed by Affect Change prior to Posting and does not necessarily reflect the opinions or policies of Affect Change. Affect Change makes no warranties, express or implied, as to the Content or to the accuracy and reliability of the Content or any material or information that you transmit to other Members. You understand that the Affect Change Services may expose you to information that is offensive, indecent, or objectionable. We do not have any obligation to monitor, nor do we take responsibility for Content made available by Users of the Affect Change Services. You agree that you will evaluate, and bear all risks associated with the use of any Content available on or through the Affect Change Service, including any reliance on the accuracy, completeness, usefulness or legality of such Content. You understand that when using the Affect Change Services, you will be exposed to Content from a variety of sources, and that Affect Change is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Affect Change with respect thereto. Affect Change does not endorse any Content or any opinion, recommendation or advice expressed therein, and Affect Change expressly disclaims any and all liability in connection with Content.
- You Are Responsible for Content You Post. You are solely responsible for the Content that you Post on or through any of the Affect Change Services, and any material or information that you transmit to other Members and for your interactions with other Users. Affect Change does not endorse and has no control over the Content. You should exercise discretion, good sense, and sound judgment when Posting Content, including any Content that you may think is ephemeral in nature. Therefore, we strongly recommend that you think before you Post any Content. Once something is Posted to the Affect Change Services, whether it is a live stream, photo, song or otherwise, we cannot guarantee that it will not live in perpetuity online, and Content Posted today could be highly embarrassing or damaging to your credibility or reputation in the future. You must not Post any Content to the Affect Change Services that you consider to be confidential or proprietary.
- Reporting of Content. If you locate any Content on or through the Affect Change Services that you find offensive or objectionable, you may report such Content to Affect Change by sending an email email@example.com. If you believe any Content is infringing of your intellectual property rights, please report such Content pursuant to our Copyright Policy as set forth in these Terms.
- Prohibited Content. The following is a partial list of the kind of Content Affect Change Services prohibits. You agree not to Post Prohibited Content. Affect Change may remove or block (but undertakes no obligation to remove or block) any of the following Prohibited Content, as well as any Content that, in Affect Change’s sole discretion, is similar to such Prohibited Content. Affect Change reserves the right to terminate immediately the account of any Member who uploads Prohibited Content, without notice and without any liability to you. Prohibited Content includes, but is not limited to, Content that:
- Is patently offensive and promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
- Harasses or advocates harassment of another person;
- Exploits people in a sexual or violent manner;
- Contains nudity, violence, or offensive subject matter or contains a link to an adult website;
- Solicits personal information from anyone under 18;
- Provides telephone numbers, street addresses, last names, or email addresses of individuals without their expressed permission;
- Promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, or libelous;
- Promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
- Involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
- Contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- Furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
- Solicits passwords or personal-identifying information for commercial or unlawful purposes from other Users;
- Involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
- Prohibited Activities. The following is a partial list of the kind of activity that is illegal or prohibited on the Affect Change Websites and through your use of the Affect Change Services. Affect Change reserves the right to terminate immediately the account of any Member who engages in Prohibited Activities, without notice and without any liability to you. Prohibited Activities include, but are not limited to, the following:
- Criminal or tortuous activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- Advertising to, or solicitation of, any User to buy or sell any products or services through the Affect Change Services. You may not transmit any chain letters or junk email to other Users. It is also a violation of these rules to use any information obtained from the Affect Change Services in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent;
- Any automated use of the system, such as using scripts to add friends or send comments or messages;
- Interfering with, disrupting, or creating an undue burden on the Affect Change Services or the networks or services connected to the Affect Change Services;
- Attempting to impersonate another User or person;
- Using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
- Using any information obtained from the Affect Change Services in order to harass, abuse, or harm another person;
- Posting any content obtained on or through the Affect Change Services to any third party sites or services without Affect Change’s express written permission or as specifically permitted by the functionalities of the Affect Change Services operating as intended without any circumvention of any protections or limitations built into the functionality; provided that in all instances Affect Change is identified as the source of the content and any identifying marks in such content are retained when such content is posted or made available on any third party sites. Any deletion of Affect Change as the identifying source of content obtained on or through the Affect Change Services shall be a material breach of these Terms and may subject you to liability;
- Using the Affect Change Services in a manner inconsistent with any and all applicable laws and regulations; or
USING ANY CONTENT OBTAINED FROM THE AFFECT CHANGE SERVICES AND AFFECT CHANGE WEBSITES FOR ANY COMMERCIAL PURPOSE WITHOUT THE EXPRESS WRITTEN CONSENT FROM THE MEMBER WHO OWNS SUCH CONTENT.
You are solely responsible for your interactions with other Affect Change Members. Affect Change reserves the right, but has no obligation, to monitor disputes between you and other Members.
- Accuracy of Content. Affect Change is not responsible for any incorrect or inaccurate Content posted on the Affect Change Websites or in connection with the Affect Change Services, whether caused by Users of the Affect Change Services or by any of the equipment or programming associated with or utilized in the Affect Change Services.
- Links. Content created and posted by Members on the Affect Change Services may contain links to other websites or applications. Affect Change is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored, or checked for accuracy or completeness by Affect Change. Inclusion of any linked website on the Affect Change Services does not imply approval or endorsement of the linked website by Affect Change. When you access these third-party websites or applications, you do so at your own risk.
- Advertising. Affect Change takes no responsibility for third-party advertisements which are posted on Affect Change or through the Affect Change Services, nor does it take any responsibility for the goods or services provided by its advertisers. You rely upon third-party advertisements at your own risk.
- Users. Affect Change is not responsible for the conduct, whether online or offline, of any User of the Affect Change Services. Affect Change assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication.
Technical Issues and Injuries. Affect Change is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Affect Change Services or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Affect Change Services. Under no circumstances shall Affect Change be responsible for any loss or damage, including personal injury or death, resulting from use of the Affect Change Services, attendance at a Affect Change event, from any Content posted on or through the Affect Change Services, or from the conduct of any Users of the Affect Change Services, whether online or offline.
LIMITATION ON LIABILITY
IN NO EVENT SHALL AFFECT CHANGE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE AFFECT CHANGE SERVICES, EVEN IF AFFECT CHANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE AFFECT CHANGE SERVICES OR PERSONS YOU MEET THROUGH THE AFFECT CHANGE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE AFFECT CHANGE SERVICES, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL RISK IN CONNECTION WITH USING THE AFFECT CHANGE SERVICES, INCLUDING ALL RISKS OF PHYSICAL OR EMOTIONAL INJURY OR HARM RESULTING ANY WAY OR ARISING OUT OF PEOPLE YOU MEET THROUGH THE AFFECT CHANGE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AFFECT CHANGE’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO AFFECT CHANGE FOR THE AFFECT CHANGE SERVICES DURING THE TERM OF MEMBERSHIP. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THEY MAY NOT APPLY TO YOU.
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND AFFECT CHANGE AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE AFFECT CHANGE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Affect Change, to you via any other method available to Affect Change, including via e-mail. The Notice to Affect Change should be addressed to: Affect Change, Inc 530 Miller Road, Coral Gables, FL 33146 Attn: General Counsel (the “Arbitration Notice Address”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (the “Demand”). If you and Affect Change do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Affect Change may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Affect Change, then Affect Change will promptly reimburse you for your confirmed payment of the filing fee upon Affect Change’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Affect Change agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (2) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (3) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND AFFECT CHANGE AGREE THAT YOU AND AFFECT CHANGE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of Delaware in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
- These Terms and your use of the Affect Change Services shall be governed by the substantive laws of the State of Delaware reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Affect Change under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware and you and Affect Change hereby submit to the personal jurisdiction and venue of these courts.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Affect Change seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Affect Change or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Affect Change, including with respect to any Content, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
- Claims. You and Affect Change agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Improperly Filed Claims. All claims you bring against Affect Change must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Affect Change may recover attorneys’ fees and costs up to $5,000, provided that Affect Change has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
You agree to indemnify and hold Affect Change, its subsidiaries, and affiliates, and their respective officers, agents, partners, and employees (collectively, the “Affect Change Indemnified Parties”), harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to your use of the Affect Change Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the Affect Change Websites or through the Affect Change Services causes the Affect Change Indemnified Parties to be liable to any third party. Notwithstanding the foregoing, Affect Change reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Affect Change Indemnified Parties if the Affect Change Indemnified Parties, in their reasonable discretion, conclude that you are not adequately protecting their interests or are incapable of protecting Affect Change’s interests, and you agree to cooperate with the Affect Change Indemnified Parties’ defense of these claims. You agree not to settle any matter without the prior written consent from Affect Change. Affect Change will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.