FundCare (“FundCare,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.fundcare.org (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Services”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
Finally, we encourage you, particularly if you intend to donate to a FundCare campaign, to review the Fees section of these Terms of Service.
ACCESS AND USE OF THE SERVICES
Services Description: The Services are offered as a platform (the “Platform”) to users of the Services, which may include Campaign Savers and Donors (each defined herein) and other registered users of the Services (which may include users who simply “like” Campaigns or otherwise interact with the Site or Services). Among other features, the Services are designed to allow a user (a “Campaign Saver”) to post a fundraising campaign (“Campaign”) to the Platform to accept monetary donations (“Donations”) from those registered users wishing to contribute funds to the Campaign (“Donors”). For purposes hereof, the term “Campaign Saver” shall also be deemed to include any individual(s) designated as a beneficiary of a Campaign. Although there are no fees to set up a Campaign, a percentage of each Donation will be charged as fees for our Services and those of our third party payment processors. Please see our Fees section for details.
Charitable Giving: Campaigns are not charities to which you can make tax-deductible charitable contributions. You understand and acknowledge that FundCare is not a charity, and FundCare does not solicit charitable donations for itself or for any third-party charitable institution. You, as a Campaign Saver, represent and warrant that if residing in the United States, you are not a charity as defined in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). As used in this Agreement, the term “Campaign” does not refer to a Charity, and you acknowledge that contributions to Campaigns are not deductible for U.S. federal income tax purposes as charitable contributions.
The Services are a Platform: We are not a Broker, Financial Institution, Creditor or Charitable Institution: The Services are an administrative platform only. FundCare facilitates the Donation transaction between Campaign Savers and Donors, but is not a party to any agreement between a Campaign Saver and a Donor. FundCare is not a broker, agent, financial institution, creditor or insurer for any user. FundCare has no control over the conduct of, or any information provided by a Campaign Saver, and FundCare hereby disclaims all liability in this regard.
FundCare does not guarantee that a Campaign will obtain a certain amount of Donations or any Donations at all. We do not personally endorse any Campaign, Campaign Saver, and we make no guarantee, explicit or implied, that any information provided through the Services by a user is accurate. We expressly disclaim any liability or responsibility for the success of any Campaign, or the outcome of any fundraising purpose. You, as a Donor, must make the final determination as to the value and appropriateness of contributing to any Campaign or Campaign Saver.
We do not and cannot verify the information that Campaign Savers supply, nor do we guarantee that the Donations will be used in accordance with any fundraising purpose prescribed by a Campaign Saver. We assume no responsibility to verify whether the Donations are used in accordance with any applicable laws, and such responsibility rests solely with the Campaign Saver, as applicable. While we have no obligation to verify that the use of any funds raised is in accordance with applicable law and these Terms of Service, we take possible fraudulent activity and the misuse of funds raised very seriously. If you have reason to believe that a Campaign Saver is not raising or using the funds for their stated purpose, please contact us at firstname.lastname@example.org to alert our team of this potential issue and we will investigate.
You, as a Campaign Saver, represent, warrant, and covenant that (i) all information you provide in connection with a Campaign is accurate, complete, and not otherwise designed to mislead, defraud or deceive any user; and (ii) all Donations contributed to your Campaign will be used solely as described in the materials that you post; and (iii) you will comply with all relevant local, state, and federal laws applicable to you when you solicit funds, particularly but not limited to laws relating to your marketing and solicitation for your campaign. We reserve the right to provide information relating to your Campaign with donors and beneficiaries of your Campaign, and with law enforcement or to assist in any investigation.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify FundCare of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you sign out from your account at the end of each session when accessing the Services. FundCare will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Services: FundCarereserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that FundCare will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
General Practices Regarding Use and Storage: You acknowledge that FundCare may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on FundCare’s servers on your behalf. You agree that FundCare has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that FundCare reserves the right to terminate accounts or Campaigns that are inactive for an extended period of time, provided that FundCare will use its commercially reasonable efforts to provide a Campaign Saver with reasonable notice before terminating an inactive Campaign having a positive balance of Donations. You further acknowledge that FundCare reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Services includes certain services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding FundCare and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your FundCare account information to ensure that your messages are not sent to the person that acquires your old number.
CONDITIONS OF USE:
User Conduct: You are solely responsible for all Campaign descriptions, comments, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or transmit or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by FundCare. However, this list is not exhaustive and FundCare reserves the right to investigate anyone by engaging public and private organizations, including, but not limited to collection agents, private investigators, and local, state, federal and international agencies, and take appropriate action against anyone who, in FundCare’s sole discretion, violates any of the terms or spirit of these Terms of Service (or the principles described in our preamble hereto), including, without limitation, removing the offending content, suspending or terminating the account of such violators, stopping payments to any such Campaign, freezing donated funds when FundCare reasonably believes it to be required by applicable law, and reporting you to the law enforcement authorities or otherwise taking appropriate legal action. Without limiting the foregoing, you agree to not use the Services to:
Donations: In order to contribute to a Campaign, a Donor will be required to provide FundCare information regarding its credit card or other payment instrument. You, as a Donor, represent and warrant to FundCare that such information is true and that you are authorized to use the payment instrument. You agree that a certain minimum Donation amount may apply, and that all Donation payments are final and cannot be refunded. Donors may have the option to contribute recurring period Donations, and in electing to contribute on a recurring basis, you, as a Donor, (i) agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur and to pay the Donation amount that you specify, and (ii) hereby authorize FundCare to bill your payment instrument in advance on a periodic basis until you terminate such periodic payments through the Platform.
Fees: FundCaredoes not charge a Campaign Saver any upfront fees for initiating a Campaign. FundCare retains a flat percentage of each Donation contributed to a Campaign (collectively, “FundCareFees”). An additional payment processing fee is also deducted from each Donation and is payable directly to our third party payment processors (the “Payment Processing Fee,” and together with the FundCare Fees, the “Fees”). Donors acknowledge that by contributing a Donation to a Campaign, the Donor is agreeing to any and all applicable terms and conditions set forth by a third party payment processor, in addition to these Terms of Service. Please see Fees at http://www.fundcare.org/pricing. Payment Processing Fees and links to the applicable terms and conditions of our third party processors are listed below:
Fees are deducted directly from each Donation, and will not be reflected in the amount which a Campaign Saver can withdraw from the Campaign. We reserve the right to change FundCare’s Fee pricing from time to time. If FundCare does change its Fees, FundCare will provide notice of the change on the Site or in email to you, at FundCare’s option, at least 30 days before the change is to take effect. Your continued use of the Services after the Fee change becomes effective constitutes your acceptance of the updated Fees.
Account Holds: From time to time, FundCare may place a hold on a Campaign account (a “Hold”) restricting Withdrawals (defined herein) by a Campaign Saver. Some of the reasons that we may place a Hold on a Campaign Account include the following: (i) if we have reason to believe (in our sole discretion) that information provided by a Campaign Saver is false, misleading, or fraudulent, or that funds are being used in a prohibited manner, (ii) if the funds available should be provided directly to a person other than the Campaign Saver (such as a legal beneficiary or person entitled by law to act on behalf of a Campaign Saver), (iii) if we have reason to believe that a Campaign or Campaign Saver has violated these Terms of Service, or (iv) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If you have questions about a Hold we may have placed on your Campaign account, or need information about how to resolve the Hold, please contact us at email@example.com.
Withdrawing Donations from a Campaign: You, as a Campaign Saver (or, as applicable, the beneficiary designated by the Campaign), may withdraw Donations to your Campaign at any time up to the full amount of all Donations credited to your Campaign, less Fees and any previously withdrawn amounts (“Withdrawals”) and subject to any Holds that we may place on your Campaign account. A Campaign Saver may withdraw Donations by electronic wire transfer to your bank account or by receipt of a paper check in certain cases. While FundCare strives to make Withdrawals available to you promptly, you acknowledge and agree Withdrawals may not be available to you for use immediately, and FundCare does not guarantee that Withdrawals will be available to you within any specific time frame, and FundCare 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 Saver, are responsible for ensuring that the information you provide to FundCare in order to process a Withdrawal, including your bank account information, is accurate and up to date.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls and economic sanctions laws. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. 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 FundCare, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) 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, robots, scraping or similar data gathering or extraction methods. If you are blocked by FundCare 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 FundCare, 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 FundCare.
The FundCare name and logos are trademarks and service marks of FundCare (collectively the “FundCareTrademarks”). 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 FundCare. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of FundCare Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of FundCare Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will FundCare be liable in any way for any content or materials of any third parties (including users and Campaign Savers), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that FundCare does not pre-screen content, but that FundCare and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, FundCare and its designees will have the right to remove any content that violates these Terms of Service or is deemed by FundCare, in its sole discretion, to be otherwise objectionable.
User Content Transmitted Through the Services: With respect to the content, photos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to, or otherwise have all necessary rights and consents to (and to allow others to) fully exploit, such User Content, including, without limitation, as it concerns all copyrights, trademark rights and rights of publicity or privacy related thereto. By uploading any User Content you hereby grant and will grant FundCare and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of 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 FundCare 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 FundCare 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 FundCare’s exploitation thereof), and that the sole consideration for subject matter of this agreement is the opportunity to use the Services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to FundCare are non-confidential and FundCare will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that FundCare may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of FundCare, its users or the public.
Copyright Complaints: FundCarerespects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify FundCare of your infringement claim in accordance with the procedure set forth below.
FundCarewill process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to FundCare’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, FundCare will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, FundCare has adopted a policy of terminating, in appropriate circumstances and at FundCare’s sole discretion, users who are deemed to be repeat infringers. FundCare may also at its sole discretion limit access to the Services and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
THIRD PARTY WEBSITES/SERVICES
The Services may provide or facilitate, or third parties may provide, links or other access to other sites, services and resources on the Internet. FundCare has no control over such sites, services and resources and FundCare is not responsible for and does not endorse such sites, services and resources. You further acknowledge and agree that FundCare 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 use of or reliance on any content, events, goods or services available on or through any such site, service or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that FundCare is not liable for any loss or claim that you may have against any such third party.
SOCIAL NETWORKING SERVICES
In addition, FundCare is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, FundCare is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. FundCare enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
INDEMNITY AND RELEASE
You agree to release, indemnify and hold FundCare and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, 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. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FundCare AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES 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.
FundCareAND ITS AFFILIATES MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER FundCare NOR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FundCare 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 SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL FundCare’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID FundCare IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Most user concerns can be resolved quickly and to the user’s satisfaction by emailing FundCare support at email@example.com. In the unlikely event that our user support team is unable to resolve a complaint you may have (or if FundCare has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, FundCare will pay reasonable attorneys’ fees should you prevail. FundCare will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
FundCareand you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
References to “FundCare”, “we”, “you”, and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission or the Attorney General of your state. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and FundCare are each waiving the right to a trial by jury or to participate in a class action. This Terms of Service evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Terms of Service.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to FundCare should be sent to 7251 W. Lake Mead Blvd., Suite 300, Las Vegas, NV 89131, Attn: CEO and CFO, with a copy by email to firstname.lastname@example.org (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If FundCare and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or FundCare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by FundCare or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or FundCare is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Terms of Service, and will be administered by the AAA. The AAA Rules are available online at adr.com, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless FundCare and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. FundCare will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND FundCare AGREE THAT EACH 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, unless both you and FundCare agree otherwise in writing, 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 specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Notwithstanding any provision in these Terms of Service to the contrary, we agree that if FundCare makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
You agree that FundCare, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if FundCare believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. FundCare may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that FundCare may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that FundCare will not be liable to you or any third party for any termination of your access to the Services.
You agree that you are solely responsible for your interactions with any other user in connection with the Services and FundCare will have no liability or responsibility with respect thereto. FundCare 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 FundCare and govern your use of the Services, superseding any prior agreements between you and FundCare with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Nevada 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 FundCare agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Clark County, Nevada. The failure of FundCare 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 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 FundCare, but FundCare may assign or transfer these Terms of Service, in whole or in part, without restriction. 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 Services.
QUESTIONS: Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Services.