Last modified: January 2021
Subject to these Terms of Service, as amended from time to time (“Terms of Service”), GroundSwell, LLC provides (a) the Groundswell Platform to you through its website at groundswell.fund and related services (collectively, the Groundswell Platform, including any new features and applications, the "Services"). Unless specifically indicated otherwise, for purposes of the following Terms of Service, “Groundswell,” “we,” “us,” “our,” and other similar terms, shall refer to the party with whom you are contracting.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON WHEN SETTING UP YOUR ACCOUNT OR BY ACCESSING OR USING THE SERVICES. BY CLICKING ON THE "I ACCEPT” BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
ARBITRATION, JURY TRIAL, AND CLASS ACTION WAIVER: EXCEPT AS OTHERWISE DESCRIBED IN THE DISPUTES SECTION BELOW, BY USING THE SERVICES, YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. PLEASE REVIEW THE DISPUTES SECTION CAREFULLY; BY ENTERING THIS AGREEMENT, 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. When we do this, we will post the revised Terms of Service on the website and will indicate the date of such revision.
Services Description: The Groundswell Services are offered as a platform to allow an individual, entity or non-profit organization (the "Campaign Organizer") to post a fundraising campaign ("Campaign") to the Groundswell Platform to accept monetary donations ("Donations") from donors ("Donors").
Platform Only: The Services are an administrative platform only. Groundswell facilitates the Campaign of the Campaign Organizers and permits Donors to make donations to these Campaign Organizers. Groundswell is not a broker, agent, financial institution, creditor or 501(c)(3) nonprofit corporation.
All information and content provided by Groundswell relating to the Services is for informational purposes only, and Groundswell 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. Before making any decisions regarding any Campaigns, Donations, Donors, or any information or content relating to the Services, you should consult your financial, legal, tax or other professional advisor as appropriate. You acknowledge that all information and content accessed by you using the Services is at your own risk.
Groundswell has no control over the conduct of, or any information provided by, a user of the Services (“User”) and hereby disclaims all liability in this regard to the fullest extent permitted by applicable law. We do not guarantee that a Campaign will obtain a certain amount of Donations or any Donations at all. We do not endorse any Campaign, User, or cause and we make no guarantee, express or implied, that any information provided through the Services is accurate. We expressly disclaim any liability or responsibility for the outcome or success of any Campaign. As a Donor, you must make the final determination as to the value and appropriateness of contributing to any User, Campaign, or event.
No Solicitation: The Groundswell platform is offered to help Campaign Organizers raise money. Groundswell merely provides the technology to allow fundraisers to connect with Donors. The existence of the Services is not a solicitation of donations by Groundswell, and Groundswell does not engage in any solicitation activities, or consult on the solicitation of contributions from the public, on behalf of any individual, entity, or organization. By using the Services, you understand and agree that Groundswell shall not be responsible for the use of your donations or the amount of funds raised for the User, Campaign, or event.
Payment Processor: Groundswell is not a payment processor and does not hold any funds. Instead, Groundswell uses third-party payment processing partners to process Donations for a Campaign (“Payment Processor”). You acknowledge and agree that the use of Payment Processors is integral to the Services and that we exchange information with Payment Processors in order to facilitate the provision of Services.
Payment Processor Fees: Although there are no fees to set up a Campaign, industry-standard payment processor fees apply (hereinafter and on the website referred to as "Payment Processor Fees").
Modifications to Services: Groundswell reserves the right to modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) at any time and for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs, or losses resulting therefrom.
Data Retention: You acknowledge that Groundswell has no obligation to you to retain data relating to any account or Campaign. You acknowledge that Groundswell reserves the right to delete data or to terminate accounts or Campaigns at any time and for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs or losses resulting therefrom.
Donors: All Donations are at your own risk. When you make a Donation, it is your responsibility to understand how your money will be used. Groundswell is not responsible for any offers, promises, rewards or promotions made or offered by Users or Campaigns. We do not and cannot verify the information that Users or Campaigns supply, nor do we represent or guarantee that the Donations will be used in accordance with any fundraising purpose prescribed by a User or Campaign or in accordance with applicable laws. Notwithstanding the foregoing, we take possible fraudulent activity and the misuse of funds raised very seriously.
Donors are not permitted to impose restrictions on the use of Donations by a Campaign Organizer. To the extent that a Donation is made in response to an appeal for a particular program of a Campaign Organizer, or to the extent that a Donor purports to direct the use of Donations by a Campaign Organizer, any such directions shall constitute non-binding recommendations only and the Campaign Organizer shall have full discretion to determine how all Donations will be used.
Groundswell makes no representation as to whether all or any portion of your Donations, including, if any, Payment Processor Fees, are tax deductible or eligible for tax credits. Groundswell will have no liability for any claim by any federal, state, provincial, territorial, local or any other tax authority with respect to the characterization on any applicable tax return of any Donation by you or any User. You should consult your tax advisor as to the amount of your Donation that is tax deductible or eligible for tax recognition, having regard to (among other things) the tax status of the recipient of any Donation in any relevant jurisdiction, and particularly if you are awarded a gift or prize in connection with your Donation.
Registration: You may be required to register with Groundswell in order to access and use certain features of the Services. If you choose to register for the Services, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Services' registration form. Campaign Organizers must register using their true identities, including their name, address and any image or video purporting to depict the Campaign Organizer or the beneficiary of such campaign. You agree to keep registration information current and up to date.
Account 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 to (a) immediately notify Groundswell of any unauthorized use of your password or account or any other breach of security, and (b) sign out from your account at the end of each session when accessing the Services. Groundswell will not be liable for any loss or damage arising from your failure to comply with this Section.
Unsolicited Information: Please be advised that User Content and other unsolicited information you provide may be publicly accessible, such as information you post in forums or comment sections. We also collect information through customer support communications, your communications to us of ideas for new products or modifications to existing products, and other unsolicited submissions, or any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, with publicly-accessible information, “Unsolicited Information”). By sending us Unsolicited Information, (a) you agree that we are under no obligation of confidentiality, expressed or implied, with respect to the Unsolicited Information; (b) you acknowledge that we may have something similar to the Unsolicited Information already under consideration or in development; (c) you agree that Groundswell will be entitled to the unrestricted use and dissemination of the Unsolicited Information for any purpose, commercial or otherwise, without acknowledgment or compensation to you; (d) you represent and warrant that you have all rights necessary to submit the Unsolicited Information; (e) to the extent necessary, you hereby grant to Groundswell a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully transferable and sublicensable right (through multiple tiers) 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 Unsolicited Information, and to sublicense the foregoing rights; and (f) you irrevocably waive, and cause to be waived, against Groundswell and its users any claims and assertions of any moral rights contained in such Unsolicited Information. This Unsolicited Information section shall survive any termination of your account or the Services.
You acknowledge and agree that Groundswell may preserve Unsolicited Information, as well as User Content, and may also disclose your Unsolicited Information or User 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 User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Groundswell, its users or the public.
You are solely responsible for compliance with all applicable law in relation to your Campaign or use of the Services. You are further solely responsible for all User Content that you upload, post, publish, display, transmit or otherwise use (hereinafter, "Upload"). If you are not the beneficiary of the Campaign you organize, you agree to deliver funds to the ultimate beneficiary directly and as soon as possible. You agree to fully cooperate with any request we make for evidence we deem necessary to verify your compliance with these Terms of Service.
The following are examples of User Content and/or use that is illegal or prohibited by Groundswell. This list is not exhaustive and we reserve the right to remove any Campaign and/or investigate any User who, in our sole discretion, violates any of the terms or spirit of these Terms of Service. As we investigate Your Campaign, a User, or User Content, we may consider all available material including but not limited to social media, related news, and any other information that we, in our sole discretion, deem relevant in our review. We further reserve the right, without limitation, to ban or disable your use of the Services, remove the offending User Content, suspend or terminate Your account, stop payments to any such Campaign, freeze or place a hold on Donations, and report you to law enforcement authorities or otherwise take appropriate legal action including seeking restitution on behalf of ourselves and/or our users.
Without limiting the foregoing, you agree:
- not to use the Services to raise funds or establish or contribute to any Campaign with the implicit or explicit purpose of or involving:
- the violation of any law, regulation, industry requirement, or third-party guidelines or agreements by which you are bound, including those of payment card providers and transaction processors that you utilize in connection with the Services;
- any election campaigns that are not run by a registered organization within the supported country;
- User Content or campaigns that are fraudulent, misleading, inaccurate, dishonest, or impossible;
- drugs, narcotics, steroids, controlled substances, pharmaceuticals or similar products or therapies that are either illegal, prohibited, or enjoined by an applicable regulatory body; legal substances that provide the same effect as an illegal drug; or other products, medical practices, or any related equipment or paraphernalia that have been found by an applicable regulatory body to cause consumer harm;
- knives, explosives, ammunition, firearms, or other weaponry or accessories;
- annuities, investments, loans, equity or lottery contracts, lay-away systems, off-shore banking or similar transactions, money service businesses (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 crypto-currencies;
- gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to raffles, 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), promotions involving monetary rewards, including gift cards, or sweepstakes;
- User Content or reflecting behavior that we deem, in our sole discretion, to be an abuse of power or in support of hate, violence, harassment, bullying, discrimination, terrorism, or intolerance of any kind relating to race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity, gender expression, serious disabilities or diseases;
- 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, gender identity, gender expression, serious disabilities or diseases, financial crimes or crimes of deception;
- 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;
- the sale of items before the seller has control or possession of the item;
- collecting 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 payment as provided by Groundswell;
- credit repair or debt settlement services;
- the receipt or grant of cash advances or lines of credit to yourself or to another person for purposes other than those purposes clearly stated in the Campaign;
- publication or removal of User Content (such as mug shots), where the primary purpose of posting such User 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; cash advance; card testing; evasion of card network chargeback monitoring programs;
- collecting or providing funds for any purpose other than as described in a Campaign description;
- any other activity that Groundswell may deem in its sole discretion to be in support of individuals and/or entities associated with alleged financial crimes including but not limited to corruption, bribery, tax evasion, fraud, and activities of a similar nature; or
- any other activity that Groundswell may deem in its sole discretion to be unacceptable.
- not to use the Services to transmit or otherwise upload any User 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 designed 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 judgment of Groundswell, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Groundswell or its users to any harm or liability of any type;
- not to interfere with or disrupt servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- not to harvest, collect or publish personally identifiable information of others;
- not to raise funds for a minor without the express permission of the minor’s guardian unless the funds are transferred into a trust account for the sole benefit of the minor;
- not to use the Services on behalf of a third party or post any personal data or other information about a third party, without the express consent of that third party;
- not to use another User's account or URL without permission, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity, misrepresent a Campaign through the Services, or post User Content in any inappropriate category or areas on the Services;
- not create any liability for Groundswell or cause us to lose (in whole or in part) the services of our Internet Service Provider(s), web hosting company or any other vendors or suppliers;
- not to engage in any conduct that, in Groundswell’s sole judgment and discretion, restricts or inhibits any other user from using or enjoying the Services;
- not to interfere with or disrupt any servers or networks used to provide the Services or their respective features, or disobey any requirements of the networks Groundswell uses to provide the Services;
- not to gain unauthorized access to the Services, or any account, computer system, or network connected to these Services, by any unauthorized or illegal means;
- not to obtain or attempt to obtain any materials or information not intentionally made available through the Services;
- not to use the Services to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising, except that using the Services for fundraising activities in accordance with the Terms of Service is expressly permitted;
- transmit more request messages through the Services in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
- undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Services; or
- attempt to undertake indirectly any of the foregoing.
Additionally, with respect to all Donations you make or accept through the Services, you agree:
- not to make or accept 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 any 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 Groundswell from time to time;
- to maintain a copy of all electronic and other records related to Campaigns and Donations as necessary for Groundswell to verify compliance with these Terms of Service and make such records available to Groundswell upon our request. For clarity, the foregoing does not affect or limit your obligations to maintain documentation as required by applicable laws, rules, regulations, or governmental authority; and
- at Groundswell’s request, including without limitation in case of investigations by Groundswell, a payment processing partner, or a regulatory or governmental authority, to fully cooperate in the auditing of such records, investigation of the relevant circumstances and remedy of any uncovered violation or wrongdoing.
Groundswell reserves the right to refuse, condition, or suspend any Donations 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 Groundswell, or that expose you, Groundswell, 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 information may include information about you, your account, your Donors, your Donations, and transactions made through or in connection with your use of the Services.
Promotions on the Groundswell Platform: You are not permitted to offer any contest, competition, reward, give-away, raffle, sweepstakes or similar activity (each, a "Promotion") on or through the Groundswell Services.
Donations: In order to contribute to a Campaign, a Donor will be required to provide Groundswell information regarding its credit card or other payment instrument (“Payment Instrument”) that is linked to the Donor’s account on the Services (a “Billing Account”). You, as a Donor, represent and warrant to Groundswell that such information is true and that you are authorized to use the applicable Payment Instrument. You agree that a certain minimum Donation amount may apply, and that all Donations are final and will not be refunded unless Groundswell, in its sole discretion, agrees to issue a refund, for example in accordance with the Groundswell Guarantee. Groundswell uses third-party payment processing partners to bill you through your Payment Instrument and Billing Account for any Donations made, and Donors acknowledge that by contributing a Donation to a Campaign, the Donor agrees to the processing, use, transfer or disclosure of data by our Payment Processors pursuant to any and all applicable terms set forth by our payment partners (currently Stripe, Inc.) in addition to these Terms of Service, including the Stripe Services Agreement.)
Withdrawing Donations from a Campaign: While Groundswell strives to make Withdrawals available to you promptly, you acknowledge and agree that Withdrawals may not be available to you for use immediately, and Groundswell does not guarantee that Withdrawals will be available to you within any specific time frame, and Groundswell expressly disclaims any and all responsibility for any delay or inability to access and use Withdrawals at any specified time, and any consequences arising from such delay or inability. You, as a Campaign Organizer, are responsible for ensuring that the information you provide to Groundswell in order to process a Withdrawal, including your bank account information, is accurate and up to date. Groundswell may, at any time, for any reason, without notice, and in its sole discretion, offer or issue a refund of Donation(s) with or without consulting with you, which may comprise the entire amount donated to your campaign. Groundswell is not liable to you or to any third party for any claims, damages, costs, losses, or other consequences caused by Groundswell issuing refunds, including, but not limited to transaction or overdraft fees.
Special Notice for International Use; Export Controls
Software (defined below) available in connection with the Services and the transmission of applicable data, if any, may be subject to export controls and economic sanctions laws of the United States or other jurisdictions. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of such export control and economic sanctions laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
INTELLECTUAL PROPERTY RIGHTS
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 Groundswell, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services, the Services Content, or Content, in whole or in part, except that the foregoing does not apply to your own User Content that you legally upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, spiders, robots, scraping or similar data gathering or extraction methods. If you are blocked by Groundswell from accessing the Services (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 Groundswell, 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 Groundswell.
The Groundswell name and logos are trademarks and service marks of Groundswell, LLC (collectively the "Groundswell 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 Groundswell. 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 Groundswell Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Groundswell Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Groundswell be liable in any way for any content or materials of any third parties (including Users) or any User Content (including, but not limited to, for any errors or omissions in any User Content), or for any loss or damage of any kind incurred as a result of the use of any such User Content. You acknowledge that Groundswell does not pre-screen User Content, but that Groundswell and its designees will have the right (but not the obligation) in their sole discretion to refuse, remove, or allow any User Content that is available via the Services at any time and for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs or losses resulting therefrom.
User Content Transmitted Through the Services: With respect to the 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 making available any User Content, or any portion thereof, in connection with the Services, you hereby grant and will grant Groundswell and its affiliated companies and users 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 the Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Without limiting the foregoing, if any User Content contains your name, image or likeness, you hereby release and hold harmless Groundswell 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 name, image or likeness, and (iii) any liability for claims made by you (or any successor to any claim you might bring) in connection 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 your name, image or likeness). Further, if any person (other than you) 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 Groundswell 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 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 Groundswell's exploitation thereof), and that the sole consideration for subject matter of this 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 Services 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.
THIRD PARTY WEBSITES/SERVICES
The Services or 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”). Groundswell has no control over such 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 Groundswell is not responsible for and does not endorse such Third Party Resources or the products, services or content made available thereby. You acknowledge that Groundswell 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 Groundswell will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the 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 Groundswell 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 Groundswell and its affiliates and their officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorneys' 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 or Campaign, any User Content, your connection to the Services, your violation of these Terms of Service or your violation of any rights of another. You agree that Groundswell has the right to conduct its own defense of any claims at its own discretion, and that you will indemnify Groundswell for the costs of its defense (including, but not limited to attorney’s fees.) If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party." 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. GROUNDSWELL 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.
GROUNDSWELL AND ITS AFFILIATES MAKE NO WARRANTY OR CONDITION THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES 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 GROUNDSWELL 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 GROUNDSWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICES; (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 SERVICES; (III) ANY PROMOTIONS AND RELATED PRIZES OR REWARDS MADE AVAILABLE THROUGH THE SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GROUNDSWELL'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 GROUNDSWELL IN THE LAST SIX (6) MONTHS, OR, IF GREATER, FIFTY DOLLARS ($50).
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 SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IMPORTANT: ARBITRATION CLAUSE & CLASS ACTION WAIVER – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
Arbitration; Class Action Waiver. 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 ADMINISTERED BY THE AMERICAN ARBITRATION ADMINISTRATION AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING OUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the foregoing, nothing in these Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either of us to (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
WE EACH AGREE THAT EITHER PARTY MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE 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, unless both you and Groundswell agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
If this Disputes section is found to be unenforceable, then the entirety of this Disputes section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the General section below will govern any action arising out of or related to these Terms of Service.
Confidentiality. We each agree to keep the arbitration proceedings, all information exchanged between us, and any settlement offers confidential, unless otherwise required by law or requested by law enforcement or any court or governmental body. However, we may each disclose these matters, in confidence, to our respective accountants, auditors, attorneys, and insurance providers.
You agree that Groundswell, in its sole discretion, may suspend or terminate your account (or any part thereof) or your access to the Services and remove and discard any User Content or data at any time and for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs or losses resulting therefrom.
You agree that you are solely responsible for your interactions with any other user in connection with the Services and Groundswell will have no liability or responsibility with respect thereto. Groundswell 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 Groundswell and govern your use of the Services, superseding any prior agreements between you and Groundswell with respect to the Services. You also may be subject to additional terms of service 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 North Carolina without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Groundswell agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Wake County, North Carolina. The failure of Groundswell 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 these 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 these 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 the 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 in electronic form will be admissible in judicial or administrative proceedings based 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 Groundswell, but Groundswell 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 Platforms. Groundswell may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, reorganization or sale of equity or assets, or by operation of law or otherwise. Nothing in these Terms shall prevent Groundswell from complying with the law. Groundswell shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
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