Effective October 1, 2017
IfThen is a crowd-funding platform for 501(c)(3) organizations to raise money for charitable causes. IfThen’s platform provides a unique method for fundraising, offering the first ever action-based fundraising tool to help charitable organizations raise money via successful organizational work. On the IfThen.org site, a charitable organization promises to deliver an ongoing monthly action across a fundraising campaign; pledgers (“donors”) pledge to donate an automatic, predetermined donation to be triggered through the IfThen platform if that monthly action is successfully delivered by the charitable organization. Designated fundraising captains help a charitable organization secure pledges for each fundraising campaign. With each donation, donors are sent a monthly update through the IfThen platform with details of the organization’s work that month. We’re a team based in Buffalo, New York, working to reduce the huge requirements of time, energy and money that traditional fundraising, donor acquisition and retention efforts have demanded of nonprofits, big or small, to stay afloat. We created IfThen because we believe that nonprofits matter. At IfThen, we work hard to ensure that nonprofits are set up for long-term sustainability, anchored by meaningful relationships with their next big generation of donors. Our platform was designed to foster connection, meaningful engagement, and, most importantly, effective outcomes. All credit and debit transactions are processed through the payment processing company Stripe. The IfThen platform does not store any user payment information; all information is securely stored and processed via Stripe. These terms and conditions govern IfThen Giving, LLC’s (“IfThen”, “we”, or “our”) relationship with you when you use the IfThen website, http://www.ifthen.org (“site”) and any and all services available on or through the site or otherwise provided by IfThen, including any widget provided by IfThen (collectively, the “services”). By using or accessing the site, services or a widget, whether manually or through automated means, you agree to these IfThen terms and conditions (“terms”). These terms apply to you if you are a charitable organization, fundraising captain, donor, or any other user of the site and/or services (collectively, “users” or “you”). If you choose to not accept these terms, you cannot use the IfThen site or the services. To be eligible to use the services and access the site, you must: (1) be over the age of majority in the jurisdiction in which you live, or if you are a minor over the age of 13, you may only use the site with the permission and supervision of your parent or legal guardian; (2) be registered with us (to the extent required) and not have been previously restricted, suspended or terminated by us; and (3) not be using another member’s account or payment information without her/his permission. Access to the site and services from territories where the site and/or services are illegal is strictly prohibited. Users are responsible for complying with all local rules, laws, and regulations regarding their use of the site and services.
- What we do. We provide a technology platform to allow 501(c)(3) organizations to fundraise and connect with donors online. IfThen provides a technology platform that allows 501(c)(3) organizations to outline a specific monthly action in a fundraising campaign; donors are able to pledge to automatic, predetermined donations that will be triggered by the organization’s confirmation that they have completed that action in the course of a month. Each 501(c)(3) organization using the IfThen platform is responsible for declaring that the monthly action was successfully delivered, thereby triggering donations from its pledged donors. While we host the fundraising pages of these 501(c)(3) organizations, IfThen does not pick or endorse any such organizations or their causes. IfThen is not responsible for verifying an organization’s claim that they have successfully delivered monthly action, and IfThen does not require proof that the action was delivered; organizations using IfThen are only required to electronically state and confirm that they have delivered monthly action in order to trigger donations. For this reason, you should only pledge to donate to an organization that you trust. All of IfThen’s fees are explained on our FAQ section at IfThen.org.
- Eligibility and Registration. If you choose to create an account with us and become a member, whether as a charitable organization, a fundraising captain or donor, you will be asked to provide one or more email addresses, a phone number and a password. We will ask you to provide certain personal information such as first and last name, phone number, mailing addresses, demographic information and payment information. You are responsible for all activities occurring under your email address and phone number, and for keeping your login and password secure. We may refuse you access to login as determined by our sole discretion, for reasons including but not limited to impersonation, trademark infringement, and vulgar or otherwise inappropriate content generated via your login. Any attempt to access restricted areas without authorization is prohibited. You agree that if you become aware of unauthorized use of your password, login or any other security breach, you will notify us immediately by emailing firstname.lastname@example.org. When you create an account with us, we may send (i) texts related to your member status, donation confirmations, nonprofit monthly communications and other communications related to campaigns you have interacted with, and (ii) emails such as weekly digest or monthly newsletter, system messages regarding account information, donation receipts, messages regarding campaigns you have interacted with, and other communications to your email. You may opt out of text messages by replying STOP at any time by text message. You may opt out of the weekly digests or monthly newsletters at any time by clicking the unsubscribe link in the newsletter email.
- Accurate Information. You agree to: (a) provide accurate information as prompted on the site or through the services; and (b) maintain and update such information to keep it accurate. If you provide any information that is inaccurate, or IfThen has reasonable grounds to suspect that such information is inaccurate, IfThen may suspend or terminate your use of the services and/or the site and/or decline to permit your continued use of the site and/or the services and future access to the site and/or the services.
- Relationship of IfThen. By using this site you understand and agree that IfThen shall not be responsible for any losses or damages incurred as a result of the fundraising campaigns or events. In the event of a dispute between users (including but not limited to charitable organizations, fundraising captains, donors, beneficiaries, and third parties), you hereby release IfThen, its employees, agents, affiliates, directors, officers, representatives, subcontractors, advisors and volunteers from all claims, damages and demands that may or may not be known, suspected or related to such disputes about our service.
Additional Terms for Fundraisers/CharitiesAny individual, entity or organization (including charitable organizations and fundraising captains) that registers as a member and raises funds or collects pledges through the site or the services (“fundraisers”) is subject to the following additional terms of these terms that apply specifically to fundraisers. By raising funds through the services, you represent and warrant that: (a) you are raising money for a cause or activity that is legal under all applicable federal, state, provincial, territorial and local laws and regulations; and (b) funds raised through IfThen will go entirely to the 501(c)(3) charitable organization for which you have registered on the site, and under no circumstances may you use the funds for any other purpose (please be aware that you cannot designate a charity and specify or direct how that charity may use funds raised). If you are raising funds for or are a 501(c)(3) non-profit organization or registered charity (a “Charity”) through the site, you agree that you will comply with all applicable state and provincial solicitation and/or fundraising laws, and you represent and warrant that such Charity has and will maintain tax-exempt status under section 501(c)(3) of the Internal Revenue Code. For organizations within the U.S., this includes having an EIN and a U.S. bank account.
- Creating and Posting a Campaign. IfThen is open, by invite only, to 501(c)(3) designated United States-based charities. Charities may create and post a campaign to showcase and share certain information about the campaign and elicit financial contributions (“Donations”) from others by following the relevant procedure and rules.
- If you create a campaign or act as a fundraising captain, you represent and warrant that you: (a) are an authorized representative of the Charity with the authority: (i) to solicit donations for the Charity; and (ii) to bind the Charity to the terms of this Agreement; and (b) will ensure when donations are not made directly to the account of the Charity that all donations are disbursed properly and legally and all donations are used as described by the campaign. For greater certainty, all donations will be deposited directly into the Charity’s account.
- Receiving Funds. When donors make donations to a Charity through the IfThen platform, IfThen sends payment to the Charity within 5 days of IfThen’s receipt of funds from the payment processor. Charities will receive their payments less the payment processing fees. The funds will be transferred directly into the bank account of the Charity as designated by the Charity upon registration with IfThen. Within 5 days of receipt of payment, the Charity’s bank account will be debited for the IfThen platform fee. All Charities will be responsible for any applicable taxes based on their net income or gross receipts (if any).
Additional Terms for DonorsAny individual, entity or organization that registers as a member and donates funds through the site or the services (“donor”) is subject to the following additional terms of these terms that apply specifically to donors.
- Donor’s Risk. All donations are at your own risk. Please make sure that when you donate to a given Charity, you understand how your money will be used. When donating, only donate to Charities that you feel comfortable donating to or otherwise know and trust. IfThen does not warrant that funds will be used for any particular purpose and is not responsible for any misuse of the funds by the beneficiary.
- No Gift Restrictions. Donors are not permitted to impose restrictions on the use of donated funds.
- Donor Commitments. By donating money through the site, you represent and warrant that any donation you make is legal in your jurisdiction and that you are authorized to use the payment method you have selected. Each donor agrees and acknowledges that: (i) all donations to Charities are made as unrestricted gifts and may not be restricted to any particular purpose; (ii) designated donation and registration amounts and Transaction Fees will be charged to the credit or debit card or other payment method you use; and (iii) all donations are final and non-refundable.
- Our Partnerships with Stripe. IfThen has partnered with Stripe to make raising money and donating to charities easy and seamless. All charities in the U.S. using the IfThen site will utilize Stripe to process donations made through the site. The manner in which transactions are processed is explained below.
- Tax Deductions. IfThen 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 IfThen user or any Charity. You should consult your tax advisor as to the amount of your donation that is tax deductible or eligible for tax recognition, having regard to (among other things) the tax status of the recipient of any donation in any relevant jurisdiction, and particularly if you are awarded a gift or prize in connection with your donation.
- Donor information. Donors shall provide IfThen with such information as is required to enable the issuing of an official donation receipt.
- Transaction Fees on Donations and Pricing Guarantee for Charities. IfThen collects a platform fee along with payment processing fees for Stripe. The per transaction IfThen platform fee is 10%. Stripe collects a payment processing fee of 2.9% + $.30 for each transaction.
- Chargebacks and Refunds. Occasionally, a donor or event registrant may dispute a credit card charge for a donation through the IfThen site. If donations are refunded to the donor by IfThen and IfThen already remitted payment to the charity, IfThen will deduct the chargebacks or refunds from future payments to the Charity, and if necessary, issue an invoice to the applicable Charity and the applicable Charity expressly agrees that it will be responsible to pay IfThen for the full amount of the refunded donation.
- Ownership of the site, Site information and services. The site and services and all technology underlying the same are expressly owned and operated by IfThen. Unless otherwise noted, the design and content features on the site and services, including without limitation, information and other materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software, URLs, and the like, as well as the selection, assembly and arrangement thereof (collectively, the “Site Information”), are owned by IfThen or its affiliates, if any, or are licensed by IfThen from third parties. The site and services, as a whole and in part, are protected by copyright, trademark, service mark, trade name, and other intellectual property and proprietary rights, and all other applicable rights are reserved.
- The trademarks, logos, and service marks (“Marks”) displayed on the site are registered trademarks of their respective owners, are the property of their respective owners, and/or are protected by U.S. and international trademark laws and/or common law. Their uses are restricted to programs, events, products or services that IfThen sponsors or with which we are otherwise affiliated. IfThen’s trademarks may not be used for personal financial gain. Use of the Marks is prohibited without IfThen’s express written consent except as permitted by applicable laws. Nothing contained on the site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Marks without IfThen’s express written consent.
- No portion of the site, services or Site Information may be reprinted, republished, modified, or distributed in any form without IfThen’s express written permission. You may not, and these terms do not give you permission to, reproduce, reverse engineer, decompile, disassemble, modify, transmit, sell, distribute, license or create derivative works with respect to the site, services or any of the Site Information.
- You may not remove any copyright, trademark or other intellectual property or proprietary notice or legend contained on the site, services, or the Site Information and you must retain all copyright, trademark, service mark and other proprietary notices contained on the site, services or in the original Site Information on any authorized copy you make of the site, services or the Site Information.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to IfThen through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that IfThen has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to IfThen a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right 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 Feedback, and to sublicense the foregoing rights.
- Use of Site. To the full extent permitted by law, the site, services and the Site Information are provided “as is” with all faults. Your use of the site, services, and the Site Information is at your own risk. The site, services or Site Information may contain errors or omission, or may be out of date. The site, services or Site Information may, without prior notice, change, be deleted or updated at any time. As a condition of your use of the service or the site, you promise to:
- a. Use the service in compliance with all laws, regulations, ordinances, directives, court orders and this Agreement local and applicable to your use of the site and services;
- b. Use the service so as not to damage, disable, overburden or impair the service, our networks or systems or not to interfere with any others’ legal rights or use or enjoyment of the service; and
- c. Not engage in, or encourage, promote, facilitate or instruct others to engage in, activities which, in our judgment and discretion: (1) are illegal; (2) result in the infringement of the intellectual property rights of others or libel or defamation of another person; or (3) harvest or otherwise collect information about others (such as e-mail addresses or other personally identifiable information) without their consent.
- Content. Content. When you are using the site and/or the services, you may have the opportunity to post, stream, transmit or otherwise provide photos, videos, ideas, remarks, questions, data, graphics, opinions, designs, customizations, or other content (including information, if any, on message boards, friend feeds, comments or other forums on the site or through the services (collectively “User Generated Content”). You alone, not IfThen, are responsible for all of your User Generated Content and you retain ownership to all User Generated Content. However, by submitting your User Generated Content to IfThen, you hereby grant IfThen a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sub-licensable right (and waive all moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, your User Generated Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in your User Generated Content.
- You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Generated Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. In addition, you represent and warrant that you will not:
- provide User Generated Content that is obscene, indecent, defamatory, libelous, unlawfully threatening or unlawfully harassing, or infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- create any liability for IfThen 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;
- engage in any conduct that, in IfThen’s sole judgment and discretion, restricts or inhibits any other user from using or enjoying the site or services;
- use the site or services to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- interfere with or disrupt any servers or networks used to provide the site or services or their respective features, or disobey any requirements of the networks IfThen uses to provide the site or services;
- gain unauthorized access to the site, or any account, computer system, or network connected to this site or services, by any unauthorized or illegal means;
- obtain or attempt to obtain any materials or information not intentionally made available through the site or services;
- use the site or services to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising, except that using the site or services for fundraising activities is expressly permitted;
- engage in advertising or commercial solicitation of any product or service without IfThen’s written consent, except that using the site or services for fundraising activities is expressly permitted;
- gather for marketing purposes any email addresses or other personal information that has been posted by other users;
- post any identification documents or sensitive information about another person; or
- create a fundraising campaign involving legal disputes or legal issues or child custody issues.
- IfThen shall have the right, but no obligation, to monitor User Generated Content and other features of the site and services to determine compliance with these terms and any other operating rules we establish. IfThen shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted through the site or services. We do not control any User Generated Content that you or other users may provide. IfThen neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement on the User Generated Content, whether it is provided by IfThen, our employees, or a third party.
- Under no circumstances will IfThen be liable for any loss or damage of any kind caused by reliance on information obtained through User Generated Content of the site or services. IfThen is not responsible for any offensive, defamatory, obscene or any other posting made through the site or services. We reserve the right at all times to disclose any information we believe necessary to satisfy any law, regulation or governmental request, or to refuse to post or to remove any information or materials, in whole or in part, that in IfThen’s sole discretion is inappropriate, objectionable or in violation of these terms. Any user who feels that a posted message is objectionable is encouraged to Contact us immediately by email to email@example.com.
- IfThen is a provider of an interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. §230 and expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on the site or through the services.
- You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Generated Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. In addition, you represent and warrant that you will not:
- Digital Millennium Copyright Act; Copyright Complaints. Digital Millennium Copyright Act; Copyright Complaints. IfThen may, in appropriate circumstances and at our discretion, remove or disable access to material on the site or our network that infringes upon the copyright rights of others. IfThen also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any visitors to the site or users of our network repeatedly infringe on others’ copyrights, IfThen may in its sole discretion terminate those individuals’ rights to use the site or our network. If you believe that your work has been used on our site or network in any manner that constitutes copyright infringement, please notify IfThen’s copyright agent by written notice. The notice should include the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
- A description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
- Identification of the location on the site of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
- Your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner or the law; and
- A statement by you that the information in this notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner’s behalf.
- Suspension or Termination of Your Use of the Site. These Terms will commence on the date you accept them (as described above) and remain in full force and effect until terminated in accordance with this section. Notwithstanding the foregoing, if you used the site or services prior to the date you accepted the terms, you hereby acknowledge and agree that the terms commenced on the date you first used the site or services (whichever is earlier) and will remain in full force and effect while you use the site or services, unless earlier terminated in accordance with the terms. IfThen has the right to suspend or terminate any services provided to you at any time with or without reason. You agree that all terminations shall be made in IfThen’s sole discretion and that IfThen shall not be liable to you or any third party for any termination of your account. If you want to terminate any services provided by IfThen, you may do so by notifying IfThen at any time, with your notice sent, in writing, to our address set forth below. Termination of any service includes removal of access to such service and barring of further use of the service, provided that any donations made prior to the effective date of termination will continue to be processed. All provisions of the terms which by their nature should survive, shall survive termination of services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Endorsement of Links to Other Web Sites. Any links to other websites are provided as merely a convenience to you. This site and the services may provide links or references to other websites but IfThen has not reviewed all of these other websites, has no responsibility for the content of such other websites and shall not be liable for any damages or injury arising from the content from these other websites. You understand that, except for information, products or services clearly identified as being supplied by IfThen, we do not operate, control or endorse any information, products or services on the Internet in any way. IfThen does not endorse or make any representations about these other websites, or any information or other products or materials found on these other websites, or any results that may be obtained from using these other websites. If you decide to access any of these other websites linked to this site, you do so entirely at your own risk.
- Indemnification. You agree to indemnify, defend and hold IfThen and its affiliates, if any, officers, directors, employees and agents, harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorney’s fees) resulting from: (a) your use, misuse or abuse of the site, services or the Site Information; (b) your User Generated Content; or (c) your breach of any provision of these terms. You will cooperate as fully as reasonably required in IfThen’s defense of any claim. IfThen reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any matter without IfThen’s written consent.
- Disclaimer. You acknowledge that you are using the site and the services at your own risk. The site, the site information and the services are provided “as is,” and to the full extent permitted by applicable law, IfThen, its affiliates and subsidiaries, if any, and its third party service providers, suppliers and vendors hereby expressly disclaim any and all warranties, express and implied, including, without limitation, any warranties of accuracy, completeness or reliability, title, noninfringement, merchantability or fitness for a particular purpose, or any other warranty, condition, guarantee or representation, whether oral, in writing or in electronic form. Ifthen, its affiliates and subsidiaries, if any, and its third party service providers, suppliers, and vendors do not represent or warrant that access to the site, the site information or the services will be uninterrupted or that there will be no failures, errors or omissions, or loss or security breach of transmitted information, or that no viruses will be transmitted through access to or use of site, services or site information. Ifthen assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any content (including, but not limited to, any user generated content) or user communications.
- Limitation on liability. Ifthen, its affiliates and its subsidiaries, if any, and its third party service providers, suppliers, and vendors shall not be liable to you or any third parties for any indirect, special, consequential or punitive damages arising out of these terms, any donations through the site, your access to or inability to access the site or its services or the site information, including without limitation for viruses alleged to have been obtained from the services, your use of or reliance on the services, the site information or materials available through third party sites linked to site, regardless of the type of claim or the nature of the cause of action, even if advised of the possibility of such damages. You and IfThen agree that any cause of action arising out of or related to the terms, the site or service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Some jurisdictions do not allow the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions or limitations may not apply to you. You may also have other rights that vary depending on where you reside.
- Release. You hereby agree to release IfThen, its affiliates and subsidiaries, if any, and third-party service providers, suppliers and vendors and each of their respective directors, officers, employees, and agents from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (collectively, “claims”), arising out of or in any way connected with your use of this site and its services or the site information. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.
- Security of the Site. IfThen maintains reasonable safeguards and personnel policies to guard the site, the services, our systems and our fundraisers’, donors’ and Charities’ information. For example, for the security of your online visit to the site, IfThen may make use of firewall barriers, encryption techniques and/or authentication procedures. All financial information is handled by Stripe, which complies with PCI standards in the storage and handling of credit card information. While IfThen strives to protect your information, it cannot ensure or warrant the security of any Content you transmit to us, and you do so at your own risk. In the event of a breach of the confidentiality or security of your personal information, IfThen will notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using the email address you provided to us when you registered with the site.
- Electronic Communications. When you visit the site, use the services or send text messages or emails to IfThen, you are communicating with us electronically. You consent to receive communications from IfThen electronically. IfThen may communicate with you by email or by posting notices on the site. You agree that all agreements, notices, disclosures and other communications that IfThen provides to you electronically satisfy any legal requirement that such communications be in writing. You may give notice to IfThen at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by IfThen by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Pledgers (“Donors”): For users pledged to an IfThen campaign, IfThen may send up to 10 text messages per month, per campaign that user is pledged to, across the course of the IfThen campaign. Texts will cease upon the termination of the campaign.
- Fundraising captains: For users acting as fundraising captains for a campaign, IfThen may send up to 20 text messages per month, per campaign for which user is acting as a captain, across the course of the IfThen campaign. Message and data rates may apply. Texts will cease upon the termination of the campaign. If a fundraising captain has pledged to the campaign for which they are acting as a fundraising captain, IfThen may send this user up to 10 additional texts per month (30 texts total). Message and data rates may apply. Texts related to fundraising captain roles will cease upon the end of the 30-day pledge collection window; texts related to pledges will cease upon the termination of the campaign.
- You agree that these terms, for all purposes, shall be governed and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws provisions. In addition:
- Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, IfThen may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Delaware law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the site or services.
- Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act (or, if applicable, the Arbitration Act (Canada)) and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or Canadian Arbitration Association (“CAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules (or CAA equivalent) and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
- You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- You and IfThen must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR IFTHEN MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, IfThen will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) IfThen also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
- The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by these terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Delaware law or United States federal law. Notwithstanding the foregoing, either you or IfThen may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Delaware. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in County of Erie, State of New York, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the County of Erie, State of New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor IfThen shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Delaware. By using the site or services in any manner, you agree to the above arbitration provision. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Conflict with Other Agreements. These terms are in addition to, and do not nullify, any other agreement between you and IfThen or any other applicable terms and conditions found on the site. In the case of any direct conflict between these terms and any other agreement between you and IfThen, the provisions of such other agreement shall control but only to extent applicable to the conflicting provisions. You agree to comply with all rules or restrictions that are posted on the site.
- Modification of the Terms. In IfThen’s sole discretion, we may unilaterally amend or modify these terms or any other documents referenced herein at any time by posting on the site. The date of the most recent revision will appear at the top of this page. If IfThen has a working email contact for you and the changes to the terms are material, IfThen may notify you of such changes by sending you an email to the address you have provided to us. IfThen encourages you to review these terms periodically for any updates or changes. Any amended or modified terms will be effective upon posting, at the time set forth in an email notice to you or as otherwise decided in IfThen’s sole discretion and as posted to the site. Continued use of the site constitutes acceptance of any modified terms and conditions.
- Additional Terms. IfThen also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the site, which may be posted in the relevant parts of the site, and will be identified clearly and conspicuously. For example, IfThen may post additional rules to participate in a promotion. Your continued use of the site constitutes your agreement to comply with these additional rules. Those terms will control in the event of any conflict with these terms.
- Miscellaneous Other Provisions.
- In the event that one or more portions of these terms shall, for any reason, be held to be unenforceable, the remaining portion will remain in full force and effect.
- The headings used throughout these terms are solely for convenience of reference and are not to be used as an aid in the interpretation of these terms.
- If IfThen fails to enforce any parts of these terms, it will not be considered a waiver.
- These terms make up the entire agreement between you and IfThen regarding the site and supersede any prior agreements.
- These terms do not confer any third party beneficiary rights.
- You will not assign or transfer any of your rights or responsibilities under these terms to anyone without IfThen’s express written permission.
- IfThen may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
- Nothing in these terms shall prevent IfThen from complying with the law.
- IfThen shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.