These terms of use are an agreement (this “Agreement”) between Giving Pilot, LLC, a New York limited liability company, (“Giving Pilot”) and each user (a “User”) of www.givingpilot.com (the “Site”) governing User’s use of the Site and Service (as defined below), regardless of the device used by User for accessing the Site or Service (including, but not limited to, a mobile device).
User’s use of the Site and, if applicable, User’s use of Giving Pilot’s fundraising platform (the “Service”) is at all times subject to this Agreement. User should read this Agreement carefully and be sure User understands it prior to using the Site or the Service. Any use of the Site or Service by User is deemed to be irrevocable acceptance of this Agreement. If User uses the Site or Service on behalf of any third party, User is agreeing to the terms of this Agreement on behalf of User and such third party. If User does not agree to this Agreement, User should not use the Site or Service and should immediately exit the Site. By using the Service, User accepts, and is responsible for payment of, all applicable service charges, credit card processing fees, and all other fees posted on the Site, including, but not limited to, the designated percentage of donated funds retained by Giving Pilot for User’s use of the Service. A User who utilizes the Service only to donate to an existing fundraising campaign will not be charged any such fees or service charges but will have the option to pay the credit card processing fee associated with the donation made. For purposes of this Agreement, accessing the Site only to review this Agreement or Giving Pilot’s privacy policy, a link to which is available on the homepage of the Site (the “Privacy Policy”) is not deemed to be use of the Site.
In using the Site or Service, Giving Pilot may collect personal information from User. All such personal information obtained by Giving Pilot will be held, disclosed, and used by Giving Pilot as set forth in the Privacy Policy.
All right, title and interest in any content made available through the Site or Service (including, but not limited to, all logos, artwork, graphics, icons, insignia, names, marks, intellectual property, and other content) (collectively “Content”) belongs to, or is licensed by, Giving Pilot, unless stated otherwise in writing by Giving Pilot. No licenses or rights to any Content are granted to User by use of the Site or Service, entering into this Agreement, or otherwise, except that User may use the Site, the Service, or any Content only as expressly set forth in Section 4.
User shall not use, copy, adapt, modify, reproduce, republish, disseminate, prepare derivative works based upon, distribute, license, sell, transfer, publicly display or perform, transmit, stream, or broadcast the Site, Service, or any Content, except that User may, for lawful fundraising purposes consistent with this Agreement, share, post, link to, or otherwise invite other users to use the Site or Service. Without limiting the generality of the preceding sentence, User may not use the Service to (a) defame, harass, threaten, or intimidate Giving Pilot, another user, or any other third party, (b) distribute or promote any objectionable content (as determined by Giving Pilot, in its sole discretion), (c) infringe any intellectual property rights of Giving Pilot or a third party, (d) engage in any fraudulent conduct, (e) send spam, or malware, viruses or other harmful code, over the Internet, or (f) engage in any other conduct not permitted by applicable law. Giving Pilot reserves the right, in its sole discretion, to suspend, restrict and/or revoke User’s access to and use of the Site or Service at any time, with or without cause.
To create a fundraising campaign through the Service, User must be eighteen (18) years old and create an account on the Site by adopting a username and passcode, and providing certain other information. A User who utilizes the Service only to donate to an existing fundraising campaign will not be required to create an account on the Site. In using the Service, User represents and warrants that: (a) all required account registration information and other information submitted is truthful and accurate; and (b) User will maintain the accuracy and confidentiality of User’s account credentials. User will not violate any applicable law in connection with User’s use of the Site or Service. User shall use commercially reasonable measures to maintain the security of User’s username and passcode and promptly notify Giving Pilot in writing if it is discovered or suspected that someone has accessed User’s account without permission. If User permits others to use the account credentials, User is responsible for the activities of those other users that takes place in connection with User’s account. Giving Pilot is not responsible for any loss or harm related to User’s inability to access or use the Site or Service. Giving Pilot has no obligation to continue to maintain or support the Site or Service in any way, or provide updates or error corrections to the Site or Service. User acknowledges that Giving Pilot has no obligation to monitor User’s access to or use of the Site or Service, but may do so in its sole discretion consistent with the terms of the Privacy Policy.
By submitting, posting, sharing, or uploading to or on the Site or Service any content (including, but not limited to, images, graphics, comments, feedback, links, text, music, audio or video files, or other content) (“User Content”), User grants Giving Pilot and its licensees, including but not limited to its affiliates, an irrevocable, perpetual, non-exclusive, transferable, royalty-free license (with the right to sublicense) to use, copy, modify, adapt, or reproduce such User Content. User represents and warrants that it is the sole owner of all User Content, or if not the sole owner, that User has (a) all permissions, consents, licenses, and approvals related to such User Content from third parties to grant such license and (b) the right to disclose to Giving Pilot such User Content and grant to Giving Pilot and its affiliates the rights to such User Content granted hereunder. Giving Pilot is not required to maintain the confidentiality of any User Content, even if the User Content is marked as confidential, except to the extent set forth in the Privacy Policy.
Giving Pilot may rely on third parties to provide products, services, and content in connection with the Site, the Service, or this Agreement, including but not limited to third party payment processors (individually a “Third-Party Vendor”), and Giving Pilot will have no responsibility or liability with respect to any Third-Party Vendor or any Third-Party Vendor’s products, services, or content. A Third-Party Vendor may impose additional terms upon User’s use of such products, services, and content, and User will be bound by such terms.
The Site or Service may contain links to, or may be accessible through links on, websites maintained by third parties (“Third Party Websites”). Giving Pilot is not responsible for any content contained on, or otherwise with respect to, Third Party Websites. No link from the Site or Service to a Third Party Website, or from a Third Party Website to the Site or Service, is an endorsement, sponsorship, or recommendation by Giving Pilot of such Third Party Website. Any links to or from any Third Party Websites are provided only for User’s convenience and Giving Pilot has no responsibility or liability to User arising from such links or Third Party Websites.
User shall indemnify, defend and hold harmless Giving Pilot from all costs, damages, expenses, fines, liabilities, losses, penalties and payments (including, but not limited to, fees and disbursements of counsel to Giving Pilot) resulting from, or relating to, (a) User’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (c) any unauthorized use by User of the Site or Service (d) any products, services or content of Third-Party Vendors, (e) any User Content, (f) User’s failure to maintain the security or confidentiality of User’s account credentials, and (g) a misrepresentation made by User regarding a fundraising campaign and/or misappropriation of donated funds by User.
THE SITE AND SERVICE ARE MADE AVAILABLE TO USER “AS IS” AND ON AN “AS AVAILABLE” BASIS AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, GIVING PILOT DISCLAIMS (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND (B) ANY WARRANTY OR REPRESENTATION THAT (I) THE SITE OR SERVICE WILL BE AVAILABLE AT ANY TIME, (II) THE SITE OR SERVICE DOES NOT CONTAIN ANY ERROR OR ANY VIRUS OR OTHER MALICIOUS CODE, OR (III) THE ACCURACY OR RELIABILITY OF ANY STATEMENT OR REPRESENTATION MADE BY ANOTHER USER REGARDING A FUNDRAISING CAMPAIGN OR A DONATION MADE.
GIVING PILOT WILL IN NO CASE BE LIABLE TO USER OR ANY THIRD PARTY WITH RESPECT TO THE SITE, THE SERVICE, OR THIS AGREEMENT, OR OTHERWISE FOR ANY RELIANCE, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. IN NO EVENT WILL ANY LIABILITY OF GIVING PILOT WITH RESPECT TO THE SITE, THE SERVICE, OR THIS AGREEMENT OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY USER OR (B) $100.00. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY GIVING PILOT, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
Giving Pilot may revise any provision of this Agreement from time to time by (a) posting the revised provision so that it is accessible to User on the Site, (b) notifying User of the revised provision in an email message or other notice sent to User at the address for User in Giving Pilot’s records. Any such revision will be effective immediately upon the earlier of such posting, sending such email message, or five days after such notice is placed in regular mail, with postage prepaid, as set forth in this Section. User is responsible for periodically checking this Agreement on the Site for revisions to this Agreement. Any other revision to this Agreement must be in a writing signed by Giving Pilot and User. The latest version of this Agreement will always be the one posted on the Site.
This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the State of New York, without regard to its principles of conflict of laws. Any complaint of User relating to the Site, the Service, or this Agreement (other than any such complaint relating to the Privacy Policy) must first be submitted to Giving Pilot as set forth in Section 15, and Giving Pilot must be given a reasonable opportunity of not less than 45 days to investigate and respond to such complaint. Upon Giving Pilot’s completing such investigation and so responding, User and Giving Pilot must then attempt, in good faith, to promptly resolve any remaining aspects of such complaint. If any aspect of such complaint remains unresolved after an additional reasonable period of not less than 45 days, and User desires to pursue other remedies, User may, within one year after Giving Pilot received User’s initial complaint, commence a lawsuit against Giving Pilot in connection with the unresolved portion of such complaint only in a court located in Erie County, New York and having subject matter jurisdiction over such complaint. User consents to any such court being a proper venue for such complaint, and waives any right to object to such court being an improper venue, whether for inconvenience or otherwise.
User must send all written notices to Giving Pilot relating to the Site, the Service, or this Agreement by either regular mail at Giving Pilot, LLC, Attn: Joseph Castle, 9700 Main Street, Clarence, New York 14031, or by e-mail to info@givingpilot.com. Any such notice will be effective only upon actual receipt by Giving Pilot. Giving Pilot may send notices to User relating to the Site, the Service, or this Agreement through e-mail, regular mail, or a general posting on the Site. Any such notice from Giving Pilot will be effective (a) immediately upon Giving Pilot’s sending such notice to the address it has in its records for User in the case of e-mail, (b) five days after Giving Pilot’s sending such notice to the address it has in its records for User, with postage prepaid, in the case of regular mail, and (c) immediately upon User’s entering the Site after such notice is posted on the Site.
No failure of Giving Pilot to exercise, and no delay by Giving Pilot in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by the party granting such waiver, and specifically referring to each such right or remedy being waived.
Giving Pilot shall not be liable or responsible to User for damages incurred by User for any delay or failure by Giving Pilot in performing an obligation pursuant to this Agreement to the extent such failure is caused by (a) death, disability, or illness, (b) flood, rain, snow or other weather conditions, (c) governmental action, (d) slowdown, strike or other labor disturbance, (e) riot, (f) terrorism, (g) unavailability of utilities or other essential services, (h) war, whether or not war is actually declared, or (i) epidemic, pandemic, or other public health problem, (j) water, or (k) other events or occurrences beyond the reasonable control of Giving Pilot, so long as Giving Pilot promptly notifies User of, and uses commercially reasonable efforts to overcome as soon as reasonably practicable, such events or occurrences.
There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
This Agreement (a) inures to the benefit of, and is binding upon, User and Giving Pilot and each of User’s and Giving Pilot’s successors and assignees, except that User may not assign any of User’s rights or obligations under this Agreement without first obtaining the written consent of Giving Pilot, and (b) constitutes the entire agreement between User and Giving Pilot with respect to the subject matter of this Agreement, and supersedes all prior oral and written proposals, representations, understandings and agreements. Any attempt by User to assign to a third party any right or remedy hereunder without Giving Pilot’s prior written consent will be null and void, and of no effect. Giving Pilot may, in its sole discretion, assign, delegate, or otherwise transfer this Agreement (including, but not limited to, all of its obligations, rights and remedies) to a third party. If there is any conflict or inconsistency between any provision of this Agreement and any provision contained on the Site (other than the Privacy Policy), the former will control. If there is any conflict or inconsistency between any provision of this Agreement and any provision contained in the Privacy Policy, the latter will control.
User represents and warrants to Giving Pilot that User (1) has carefully read this Agreement, (2) is entering into this Agreement on behalf of User and, if applicable, a third party, and (3) has sufficient capacity to enter into this Agreement and bind User and, if applicable, such third party.
Dated: December ___, 2021