Date of Last Revision: September 7, 2022
Subject to these Terms of Service, as amended from time to time (“Terms of Service”), Founder Sass Society Inc. provides the Wishes platform to you through its website at https://www.wishes.inc and attendant mobile applications (collectively, with any new features and applications, the “Platform”) and the Wishes Community and related services (collectively, with the Platform, including any new features and applications, “Wishes Services”). If you are an Organizer (as defined below), Beneficiary (as defined below) to a Fundraiser (as defined below), comment contributor, or Donor (as defined below) (collectively referred to herein as a “User”) located in the United States, you are contracting with Founder Sass Society Inc, a California non Profit and 501c(3) located in Los Gatos, California. Unless specifically indicated otherwise, for purposes of the following Terms of Service, “Wishes,” “we,” “us,” “our,” and other similar terms, shall refer to the party with whom you are contracting.
ARBITRATION, JURY TRIAL, AND CLASS ACTION WAIVER: EXCEPT AS OTHERWISE DESCRIBED IN THE DISPUTES SECTION BELOW, BY USING WISHES SERVICES, YOU AGREE THAT DISPUTES BETWEEN YOU AND 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 and without notice. When we do this, we will post the revised Terms of Service on this page and will indicate the date of such revision.
Your continued use of the Services after the date of any such changes constitutes your acceptance of the new Terms of Service. To the extent allowed by law, the English version of these Terms of Service is binding, and other translations are for convenience only. If you do not wish to accept the new Terms of Service, you may discontinue your use of the Services.
ACCESS AND USE OF THE SERVICES
Wishes Services Description: The Wishes Services are offered as a platform to allow an individual, entity, or non-profit organization (the “Organizer”) to post a fundraiser (“Fundraiser”) to the Platform to accept monetary donations (“Donations”) from donors (“Donors”) on behalf of the beneficiaries of the Fundraiser (“Wishers”).
Payment Processor: Wishes is not a payment processor and does not hold any funds. Instead, Wishes uses third-party payment processing partners to process Donations for a Fundraiser (“Payment Processors”). 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.
Transaction Fees: Although there are no fees to Organizers to set up a Fundraiser, please keep in mind that transaction fees, including credit and debit charges, are deducted from each donation (hereinafter and on the website referred to as “Transaction Fees”). To learn more about the Platform and the applicable Transaction Fees, visit Wishes Pricing for personal fundraisers, and Wishes Pricing for Charity Fundraisers.
The Services are Platforms; We are not a Financial Institution or Creditor: The Services are administrative platforms only. Wishes facilitates the Fundraiser of the Organizers and permits Donors to make donations to these Fundraisers.
All information and content provided by Wishes relating to the Services is for informational purposes only, and Wishes does not guarantee the accuracy, completeness, timeliness, or reliability of any such information or content. No content is intended to provide financial, legal, or other professional advice. Before making any decisions regarding any Fundraisers, Charities (defined hereinafter), 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.
Wishes has no control over the conduct of, or any information provided by, a User and hereby disclaims all liability in this regard to the fullest extent permitted by applicable law. We do not guarantee that a Fundraiser will obtain a certain amount of Donations or any Donations at all. We do not endorse any Fundraiser, 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 Fundraiser. You, as a Donor, must make the final determination as to the value and appropriateness of contributing to any User or Fundraiser.
No Solicitation: The Platform is offered to help Organizers raise money. Wishes merely provides the technology to allow Fundraisers to connect with Donors and Wishers to spend donations. The existence of the Services is not a solicitation of donations by Wishes, and Wishes 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 Wishes shall not be responsible for the use of your Donations, or the amount of funds raised for the User or Fundraiser.
Donors: All Donations are at your own risk. When donors donate through the Platform, it is the donor’s responsibility to understand how the money will be used. Donors can choose the categories they would like to support for individual wishers and can donate funds to Wishers to be used for those exact services or resources. Wishes is not responsible for any offers, rewards or Promotions (defined below) made or offered by Wishers or Fundraisers; such conduct violates these Terms of Service. We do not and cannot verify the information that Wishers or Fundraisers supply. Notwithstanding the foregoing, we take possible fraudulent activity and the misuse of funds raised very seriously. You can learn more about our Fraud Policy. If you have reason to believe that a Wisher or Fundraiser is not raising or using the funds for their stated purpose, please use the “Report” button on the Fundraiser to alert our team of this potential issue and we will investigate. If you are a Donor, you are also to be covered by the Wishes Guarantee.
A. Donors are not permitted to impose restrictions on the use of Donations by a non-profit organization, established as such under the applicable laws of incorporation (“Charity”). To the extent that a Donation is made in response to an appeal for a particular program of a Charity, or to the extent that a Donor purports to direct the use of Donations by a Charity, any such directions shall constitute non-binding recommendations only and the Charity shall have full discretion to determine how all Donations will be used.
B. Wishes 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, any User or any Charity. Donors should consult their tax advisor as to the amount of the 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. Wishes will provide acknowledgement of the charitable tax donation to the donor once funds have been settled and issued to the wisher.
Certain states require written disclosures for Charities soliciting contributions. For Donors making Donations to Charities, please see the state non-profit disclosures for those Charities.
Wisher: You, as a Wisher, represent, warrant, and covenant that: (i) all information you provide in connection with a Fundraiser or Beneficiary is accurate, complete, and not likely to deceive reasonable Donors; (ii) all Donations contributed to your Fundraiser will be used solely as described in the materials that you post or otherwise provide; (iii) if you withdraw donations believed by reasonable Donors to be raised on behalf of someone other than you (i.e., the beneficiary), all Donations will be given to and/or spent on behalf of the Wisher; (iv) if you add a Beneficiary through the Services, you relinquish control of the Donations, including the ability to issue refunds; (v) you will not infringe the rights of others; (vi) you will comply with all relevant and applicable law and financial reporting obligations, including but not limited to laws and regulations relating to registration, tax reporting, political contributions, and asset disclosures for your Fundraiser; (vii) to the extent you share with us any personal data of any third party for any purpose, including the names, email addresses and mobile phone numbers of your personal contacts, you have the authority (including any necessary consents), as required under applicable law, to provide us with such personal data and allow us to use such personal data for the purposes for which you shared it with us; and (viii) you will not provide or offer to provide goods or services in exchange for Donations. You authorize Wishes and its partners, and Wishes reserves the right, to provide information relating to your Fundraiser to Donors, Beneficiaries of your Fundraiser or law enforcement, and to assist in any investigation thereof.
If you use the Services as an agent of a Charity to raise funds for such Charity, you represent and warrant that: (a) you are a representative of the Charity, which representative is authorized to raise funds for the Charity and bind the Charity to these Terms of Service; (b) you are raising funds for a Charity, with a cause or activity that is legal under all applicable federal, state, provincial, territorial and local laws and regulations; (c) all donated funds will be used solely for the purpose you have stated in connection with your Fundraiser, and under no circumstances may you use the funds for any other purpose; (d) your Charity has and will maintain tax-exempt status under applicable law (for example, the Internal Revenue Code in the United States or the Income Tax Act in Canada); and (e) if your Charity is in the United States, your Charity is registered with GuideStar or the IRS tax exempt organization database, or, in Canada, is listed in the Canada Revenue Agency’s database of registered charities.
Your Registration Obligations: You may be required to register with Founder Sass Society Inc (Wishes) 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, or your Charity as prompted by the Services’ registration form. Wishers must register using their true identities (or the identities of the Charities’ authorized representatives), including their name, address and any image or video purporting to depict the Wisher or the Beneficiary of such Fundraiser. You agree to keep registration information current and up to date.
Charities: The Wishes Services include the features and services described here. All Donations are subject to a Transaction Fee for each Donation.
Chargebacks and Refunds. Occasionally, a Donor may dispute a credit card charge for a Donation through the Services.
If Donations are refunded to the Donor by our payment processing partners and they have already remitted payment to the Charity, the chargebacks or refunds will be deducted from future payments to the Charity, and if necessary, an invoice will be issued to the applicable Charity. The applicable Charity expressly agrees that: (a) it will be responsible for paying the full amount of any Donation refund due to a Donor; and (b) our payment processing partners as applicable and may elect to offset a future Donation rather than requesting that the Charity return the refunded Donation.
If Donations were made directly through our processing partner Titanium Payments, the Charity has control over the Donations and Charity, rather than Wishes, and is responsible for issuing refunds and handling chargebacks directly with Donors.
B. Removal of a Charity from our Database. If you are the authorized representative of a Charity, and you do not wish for your Charity to appear in Wishes’ searchable database, you may contact us here to request that your Charity be removed from our database. Your email should include your full name, title, email and phone number associated with your Charity. Please note that if your Charity is removed from the Wishes database, it will not be eligible to receive contributions through the Platform.
C. Receiving Funds. As a Charity, receipt of Donations, minus any applicable Transaction Fees, is based upon and subject to the applicable Payment Processor’s procedures and terms. Available Payment Processors are described under “Payment Processors for Charities” below. Wishes is not a payment processor and does not hold funds.
D. Taxes. Wishes does not withhold funds for tax purposes or otherwise. Charities will be solely responsible for taxes based on applicable international, federal, state, local or any other taxes or levies, or for any applicable taxes based on their net income or gross receipts (if any). Wishes provides all donors with acknowledgment of their charitable donations when made through the Wishes platform or app.
E. Donor Lists and Other Data. A Charity may access information about an Organizer of a Fundraiser for the Charity, Donor Lists (defined below) and Donor Data (defined below) for compliance and transactional purposes. Please contact us here with any questions. “Donor Data” means a Donor’s name, address, email address, Donation amount, date of transaction, transaction identification number, and name of the project. THE LIST OF DONORS WHO CONTRIBUTE TO A CHARITY’S FUNDRAISER THROUGH THE SERVICES (“DONOR LISTS”) IS PROVIDED “AS IS,” AND Wishes MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES ABOUT THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY DONOR LIST OR ANY INFORMATION CONTAINED THEREIN. Unless a Donor checks the “Anonymous” checkbox at the time of Donation or seeks to be anonymous through other means provided herein, by using the Services, the Donor consents to the disclosure of Donor’s Donor Data as described herein, including without limitation, disclosure as part of a Donor List.
Taxes: It is the Wishers’ responsibility to determine what, if any, taxes apply to the Donations Wishers receive through youruse of the Wishes Services. It is solely your responsibility to assess, collect, report, or remit the correct tax, if any, to the appropriate tax authority.
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 Wishes 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. Wishes will not be liable for any loss or damage arising from your failure to comply with this Section.
Terms of Service.
Modifications to the Services: Wishes 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.
Content Manifestly Made Public by the User.
B. Other Information. Please be advised that User Content and other information, solicited or unsolicited, that you provide to Wishes may be publicly accessible, such as information you post in forums, comment sections or in response to surveys we may send out. 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, “Other Information”). By sending us Other Information, (a) you agree that we are under no obligation of confidentiality, expressed or implied, with respect to the Other Information; (b) you acknowledge that we may have something similar to the Other Information already under consideration or in development; (c) you agree that Wishes will be entitled to the unrestricted use and dissemination of the Other 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 Other Information; (e) to the extent necessary, you hereby grant to Wishes 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 Other Information, and to sublicense the foregoing rights; and (f) you irrevocably waive, and cause to be waived, against Wishes and its Users any claims and assertions of any moral rights contained in such Other Information. This Other Information section shall survive any termination of your account or the Services.
You acknowledge and agree that Wishes may preserve Other Information, as well as User Content, and may also disclose your Other 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 Wishes, its Users or the public.
Third-Party Communications: If you use any feature of the Services that allows you to communicate with third parties (such as to refer a third party to the Services or to communicate with them regarding a Fundraiser or a donation), either by submitting data about the third party (“Third-Party Data”) to the Services or otherwise permitting the Services to automatically access Third-Party Data in your possession, you acknowledge and agree that you have the authority of the relevant third party for us to access and use the relevant Third-Party Data and that you have notified these third parties and informed them how their information is collected and used by Wishes to provide the Services. We reserve the right to identify you as the person who has made the referral in any messages that are sent to them. We use Third-Party Data to (a) contact such third party using the Third-Party Data provided, and/or (b) provide you with an editable template message designed to facilitate communications between you and such third party through the Services. In addition to sending the foregoing communications, we may also send reminders or related messages to you and to third parties on your behalf from time to time as permitted by applicable law. In each case, any such communication sent to third parties using Third-Party Data will provide a means to “opt out” of receiving further communication of the same nature.
Promotions on the Wishes Platform: If You are located in the United Kingdom, You will be permitted to offer give-away (e.g., one sticker, while supplies last, for every donation made) incentives in connection with Your Fundraiser. If You are located outside of the United Kingdom, You are not permitted to offer any contest, competition, reward, give-away, raffle, sweepstakes or similar activity (each, a “Promotion”) on or through the Services.
Sales Prohibited on the Platform: You are not permitted to offer any good or service in exchange for a Donation on the Platform.
Data Retention: You acknowledge that Wishes has no obligation to you to retain data relating to any account or Fundraiser. You acknowledge that Wishes reserves the right to delete data or to terminate accounts or Fundraisers 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. The foregoing does not apply to Fundraisers or accounts started by Charities on the Platform, in which case Wishes will provide reasonable notice where possible.
Mobile Services and Text Messages: The Wishes Services include certain features that may be made available via a mobile device, including the ability to (a) upload User Content to the Platform, (b) browse the Platform, and (c) access certain items through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access Mobile Services, 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 about matters related to your account 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. Further, when setting up your Wishes account, if you click “Send code” by “Text Message,” you agree to receive automated text messages related to your account from or on behalf of Wishes at the phone number provided. You can reply STOP to such text messages to cancel. Message frequency will vary. Message and data rates may apply. We will comply with any additional requirements that may apply under local laws and regulations before communicating with you in this manner. In the event that you change or deactivate your mobile telephone number, you agree to promptly update your Wishes account information to ensure that your messages are not sent to the person that acquires your old number.
You are solely responsible for compliance with all applicable law in relation to your Fundraiser or use of the Services. You are further solely responsible for all User Content that you upload, post, publish, display, transmit or otherwise use. If you are not the Beneficiary of the Fundraiser 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 are illegal or prohibited by Wishes. This list is not exhaustive, and we reserve the right to remove any Fundraiser 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 Fundraiser, 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 Fundraiser, 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 and represent, warrant and covenant:
A. Not to use the Services to raise funds or establish or contribute to any Fundraiser with the implicit or explicit purpose of promoting 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 Fundraisers 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 that reflects or promotes 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; 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; the funding of a ransom, human trafficking or exploitation, vigilantism, bribes or bounty; pornography or other sexual content; offensive, graphic, perverse or sensitive content;
the collecting of payments on behalf of merchants by Payment Processors or otherwise; including but not limited to self-payments on Fundraisers or an attempt to bypass or otherwise circumvent the designated method of payment as provided by Wishes; 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 Fundraiser; publication of User Content (such as mug shots), where we deem, in our sole discretion, that the primary purpose of posting such User Content is to cause reputational harm; the sale or resale of a good or service;
the 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; the unauthorized sale or resale of brand name or designer products or services; the 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; the collecting or providing of funds for any purpose other than as described in a Fundraiser description; any other activity that Wishes 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 Wishes deems, in its sole discretion, to be unacceptable.
B. Not to use the Services to transmit or otherwise Upload any User Content that (i) infringes on 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 codes, 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 Wishes, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Wishes or its Users to any harm or liability of any type.
C. Not to interfere with or disrupt servers or networks connected to or used to provide the Services or their respective features, or disobey any requirements, procedures, policies or regulations of the networks connected to or used to provide the Services.
D. Not to harvest, collect or publish personally identifiable information of others.
E. 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.
F. 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.
G. 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 Charity or Fundraiser through the Services, or post User Content in any inappropriate category or areas on the Services.
H. Not to create any liability for Wishes 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.
I. Not to engage in any conduct that, in Wishes’ sole judgment and discretion, restricts or inhibits any other User from using or enjoying the Services.
J. Not to gain unauthorized access to the Services, or any account, computer system, or network connected to the Services, by any unauthorized or illegal means.
K. Not to obtain or attempt to obtain any materials or information not intentionally made available through the Services.
L. Not to use the Services to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contain advertising, except that using the Services for fundraising activities in accordance with these Terms of Service is expressly permitted.
M. Not to 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.
N. Not to undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Services.
O. Not to attempt to undertake indirectly any of the foregoing.
Additionally, with respect to all Donations you make or accept through the Services, you agree and represent, warrant and covenant:
A. Not to make or accept any Donations that you know or suspect to be erroneous, suspicious or fraudulent.
B. 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).
C. To maintain reasonable and standard security measures to protect any information transmitted and received through the Services, including without limitation, adhering to any security procedures and controls required by Wishes from time to time.
D. To maintain a copy of all electronic and other records related to Fundraisers and Donations as necessary for Wishes to verify compliance with these Terms of Service and make such records available to Wishes 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.
E. At Wishes request, to fully cooperate in the auditing of, investigation of (including without limitation, investigations by Wishes, a Payment Processor, or a regulatory or governmental authority), and remedial efforts to correct any alleged or uncovered violation or wrongdoing of a User to whom, or Fundraiser or Donation to which you are connected. Wishes reserves the right to refuse, condition, or suspend any Donations or other transactions that we believe in our sole discretion may violate these Terms of Service or harm the interests of our users, business partners, the public, or that expose Wishes, 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 or contractual 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.
Donations: In order to contribute to a Fundraiser or to a Charity, a Donor will be required to provide Wishes information regarding the Donor’s credit card or other payment instrument (“Payment Instrument”) that is linked to the Donor’s account (a “Donor Account”). You, as a Donor, represent and warrant to Wishes that such information is true, current and accurate 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 Wishes, in its sole discretion, agrees to issue a refund, for example in accordance with the Wishes Guarantee within the 24 hour period. Wishes 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 Fundraiser, the Donor agrees to the processing, use, transfer or disclosure of data by the Payment Processors pursuant to these Terms of Service as well as any and all applicable terms set forth by our payment partners. Our current Payment Processors are Titanium Payments, PayPal, CRB, Marqeta and Galileo.
ORGANIZERS, BENEFICIARIES OR CHARITIES
Account Holds: From time to time, Wishes may, in its sole discretion, place a hold on a Fundraiser account (a “Hold”), restrict virtual card purchases (defined herein as the transfer of Funds raised to Beneficiary), initiate a reverse ACH transfer, secure reserves, or take similar actions to protect its interests and those of its Users. Some of the reasons that we may take such actions include, but are not limited to, our belief or determination, in our sole and absolute discretion, that: (i) information provided by a Wisher is false, misleading, or fraudulent, or funds are being used in a prohibited manner, (ii) the funds available should be provided directly to a person other than the Wisher, such as a legal beneficiary or person entitled by law to act on behalf of an Wisher, (iii) a Fundraiser or Wisher has violated these Terms of Service, (iv) the Wisher is colluding with Donors to engage in fraudulent activity, (v) there may be suspicious or fraudulent Donation activity, or (vi) such action(s) is/are required 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 Fundraiser account, or need information about how to resolve the Hold, please see this article.
Using donated funds from a Fundraiser: While Wishes strives to make use of funds available to you promptly, you acknowledge and agree that: (i) use of funds may not be available to you for use immediately, (ii) Wishes does not guarantee that use of funds will be available to you within any specific time frame, and (iii) Wishes expressly disclaims any and all responsibility for any delay to access and use of funds at any specified time, and any consequences arising from such delay or inability. You, as a Wisher and/or Beneficiary, are responsible for ensuring that the information you provide to Wishes in order to process purchases through virtual cards is accurate and up to date. Wishes 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 Fundraiser. Wishes is not liable to you or to any third party for any claims, damages, costs, losses, or other consequences caused by Wishes issuing refunds, including, but not limited to transaction or overdraft fees.
Wishes uses Payment Processors to process Donations for your Fundraiser and thereafter deliver them to you. In order to use funds from a Fundraiser, a Wisher or, if not the same, Beneficiary (collectively “using Entity”) will be required to provide the Payment Processor information regarding personal or business information (“user Account”). You, as using Entity, represent and warrant to Payment Processor and Wishes that such information is true and that you are authorized to use the applicable funded Account.
By setting up a Fundraiser or accepting the role of Beneficiary to a Fundraiser, the using Entity agrees to the processing, use, transfer or disclosure of data by the Payment Processors pursuant to these Terms of Services as well as any and all applicable terms set forth by the applicable Payment Processors. Our current Payment Processors are Titanium Payments, PayPal, CRB, Marqeta and Galileo.
Payment Processors for Charities: Wishes has partnered with Titanium Payments, CRB and Marqeta. Although exceptions can be made, Charities in the United States, United Kingdom, Ireland, Canada and Australia will be defaulted to using Checkout to process Donations made through the Services. The manner in which transactions are processed is explained below. Charities in other countries will be defaulted to using PayPal.
A. Titanium Payments or CRB. When Titanium or CRB processes a Donation through the Services for a Charity, the Donation will go directly from the Donor to Founder Sass Society, a public 501c, (3) and will then be sent to the Charity’s account through the use of virtual credit cards. Donations will appear on the Donor’s credit card statement under the name of Wishes Foundation or Wishes-Gas, Wishes-Rideshare, Wishes- Hotel, Wishes-Airfare, Wishes-Business, Wishes-Streaming, Wishes-Restaurant, Wishes-Grocery, Wishes Gasoline, Wishes-Streaming or other Wishes companies earmarked to the charity or individual for which the Donor contributed.
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.
APPLE-ENABLED SOFTWARE APPLICATIONS
Wishes offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Wishes and you acknowledge that these Terms of Service are concluded between Wishes and you only, and not with Apple, and that as between Wishes and Apple. Wishes, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Wishes sole responsibility, to the extent it cannot be disclaimed under applicable law.
Wishes and you acknowledge that Wishes, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Wishes and Apple, Wishes, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties and (iii) you are not located in any other country or jurisdiction from which you would be barred from using the Services by applicable law.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Wishes as follows: email@example.com. Wishes and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof. Accordingly, the parties acknowledge and agree that Wishes enters into this clause (“Apple-Enabled Software Applications”) for its own benefit and on its own behalf and also as an agent for the benefit and on behalf of Apple and its subsidiaries with respect to the exercise and enforcement of all rights, benefits and remedies of Apple and its subsidiaries (but not any obligation or burden) in this clause (“Apple-Enabled Software Applications”) which rights, benefits and remedies shall be enforceable by Wishes in its own right and also as agent for and on behalf of each of Apple and its subsidiaries. Wishes may amend, terminate or rescind these Terms of Service without the consent of Apple or any such subsidiary.
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 Wishes, 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 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 Wishes 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 wishes, 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 Wishes.
The Wishes name and logos are trademarks and service marks of Wishes (collectively the “Wishes 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 Wishes. 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 Wishes’ Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Wishes’ Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Wishes 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 Wishes does not pre-screen User Content, but that Wishes 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 Wishes 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 Wishes 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 wishes 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 Wishes 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 Wishes 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) remove or block any Services Content or User Content from the Services.
Payment Card Industry Data Security Standard: The Payment Card Industry Data Security Standard (PCI DSS) is a set of industry-mandated requirements for any business that handles, processes, or stores credit card information. The primary purpose of the standard is to maintain controls around cardholder data to reduce credit card fraud. Although card data is processed and stored by our Payment Processors, Wishes has achieved the highest level of PCI Compliance as a PCI DSS Level 1 Compliance Service Provider. To learn more, see here.
Copyright or Trademark Complaints: Wishes respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Wishes of your infringement claim in accordance with the procedure set forth below.
Wishes will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”), trademark infringement and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed infringement should be emailed to Wishes 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: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; a description of the copyrighted work, trademark, or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark or intellectual property owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the owner, the owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the above-listedCopyright Agent:
Your physical or electronic signature; identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; a statement that you have a good-faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, Wishes will send a copy of the counter-notice to the original complaining party, informing that person that Wishes may replace the removed content or cease disabling it in 10 business days. Unless the 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, trademark and other applicable law, Wishes has adopted a policy of terminating, in appropriate circumstances and at Wishes’ sole discretion, Users who are deemed to be repeat infringers. Wishes may also at its sole discretion limit access to or terminate the Services and/or terminate the memberships of any Users who infringe upon any intellectual property rights of others, whether or not there is any repeat infringement.
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”). Wishes 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 Wishes is not responsible for and does not endorse such Third Party Resources or the products, services or content made available thereby. You acknowledge that Wishes 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 Wishes 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. As an example of this, if you use the Platform through your mobile device, and you upload a video to a Fundraiser, that video will be uploaded using YouTube, and subject to the YouTube Terms of Service. And you agree that Wishes 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 Wishes 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 Fundraiser, 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 Wishes has the right to conduct its own defense against any claims at its own discretion, and that you will indemnify Wishes 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. WISHES 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. WISHES 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 WISHES 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 WISHES 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 WISHES HAVE A 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 WISHES 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 SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – 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 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.
The Process: Any arbitration between you and us will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms of Service. The AAA Rules and filing forms are available online at http://www.adr.org.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our current address for Notice is: Founder Sass Society Inc., ℅ Legal Department, P.O. Box 1162 Los Gatos, CA 95030 The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to work with you and make a good faith effort to resolve the claim directly, but if we aren’t successful within 60 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by either of us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount which exceeds the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.00.
Fees: If you commence arbitration in accordance with these Terms of Service, we will reimburse you for your payment of the filing fee unless your claim is for more than $10,000 in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at an agreed upon location in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county of your billing address. If the arbitration finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil procedure 11(b), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or 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.
No Class Actions: YOU AND WE AGREE THAT EACH 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 we 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.
Modifications to this Arbitration Provision: If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability: 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 theseTerms 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, and insurance providers.
You agree that Wishes, 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 Wishes will have no liability or responsibility with respect thereto. Wishes 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 Wishes and govern your use of the Services, superseding any prior agreements between you and Wishes 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 California 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 Wishes agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California. The failure of Wishes 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 Wishes but Wishes may assign or transfer these Terms of Service, in whole or in part, without restriction. If we fail to enforce any of our rights, that does not result in a waiver of that right. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Platform. Wishes 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 Wishes from complying with the law. Wishes 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 or threats of war, terrorism or threats of terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, governmental regulation or advisory, recognized health threats, as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies, strikes or shortages or curtailment of transportation facilities, fuel, energy, labor or materials.
QUESTIONS? CONCERNS? SUGGESTIONS?
Please visit the Help Center to learn more about Wishes platform or contact us to report violations or pose any question.