Welcome to the Global FoodBanking Network (“Company”, “Us”, “Our” or “We”) Site.
These Terms of Use (“Terms”) are a legal contract between You and Us (collectively, “Everyone”) and govern Your use of the website accessible at www.foodbanking.org (the “Site”) and any services (“Services”) We may provide through the Site.
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS SITE. USING THIS SITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS SITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
The Global FoodBanking Network.
We are a non-profit organization that facilitates connections among a network of food banks, social service and community-based organizations, and business entities (each a “Partner”) to collect and/or distribute food and grocery products (“Distribution”).
CHANGES.
We may alter the Site and Services We offer You and/or choose to modify, suspend or discontinue this Site at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any modifications to these Terms by posting them on this Site.
If You object to any such modifications, Your sole recourse shall be to cease using this Site. Continued use of this Site following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Site. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
GENERAL USE.
We invite You to use this Site for individual, consumer purposes (“Permitted Purposes”).
By using the Site, You agree that you are at least 18 years of age, or if you are under 18 years of age (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and You have received your parent’s or legal guardian’s permission to use the Site and agree to these Terms. If You are a parent or legal guardian of a Minor, you agree to bind the Minor to these Terms and to fully indemnify and hold Us harmless if the Minor breaches any of these Terms.
In these Terms We are granting You a limited, personal, non-exclusive and non-transferable license to access and use the Site and the Services; Your right to use the Site and the Services is conditioned on Your compliance with these Terms. You have no other rights in this Site or any Services and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Site in any manner. If You make copies of any of this Site while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Site.
Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately cease any use of the Site and the Services.
USING THIS SITE AND THE SITE’S SERVICES.
We appreciate You visiting this Site and allow You to do just that – stop by and leisurely check it out!
All information and content provided by Us relating to the Services is for informational purposes only, and We does not guarantee the accuracy, completeness, timeliness or reliability of any such information or content. No content is intended to provide financial, legal, tax or other professional advice. Before making any decisions regarding any information or content relating to the Services, or any donations, 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. We make no guarantee, express or implied, that any information provided through the Site is accurate.
Partner: To become a Partner, You must register with Us, and meet eligibility requirements at Our sole discretion. By registering as a Partner, You as the Partner represent and warrant that: (a) all registration information the Partner submits is truthful and accurate; (b) Partner will maintain the accuracy of such information; (c) Partner’s participation in the Distribution does not violate any applicable law or regulation; and (d) Partner will comply with all the terms of any partner agreement. Partner’s registration profile may be deleted or suspended without warning if We has reason to believe that the Partner does not meet eligibility requirements.
DONATION.
You may make a contribution (“Donor”) to Us through the Site, or by contacting Us via the contact information provided on the Site. All donations are voluntary and are made at Donor’s sole discretion and risk. Donor must make the final determination as to the value and appropriateness of any donation or contribution to Us. All donation payments are final and will not be refunded.
In order to donate to Us, a Donor will be required to provide Us with information regarding the Donor’s credit card or other payment method. Once the Donor has made a contribution to Us, We will process payment through the provided payment information. By providing a payment method for donation, Donor expressly authorizes Us and/or Our third party payment processor (“Payment Processor”) to charge the applicable fees on said payment method. Donor represents and warrants that such information is true and that the Donor is authorized to use the applicable payment method. Furthermore, Donors acknowledge and agree that We exchange information with Payment Processors in order to facilitate the provision of Services.
When you make a donation, request updates from our website, sign a petition, assist with fundraising, or otherwise interact with us, we may collect your name, email address, mailing address, and/or mobile telephone number. You consent to and will receive emails from us at the email address provided. By providing your mobile telephone number, you are opting in to receive text messages regarding GFN events, updates, fundraising or donating opportunities, and other promotional messages. You are not required to provide your mobile telephone number to make a donation. SMS alerts are available on most carriers. Message frequency varies. Message & Data Rates may apply. If you wish to unsubscribe from text messages at any time, simply reply STOP. Text HELP for help. Carriers are not liable for delayed or undelivered messages. No mobile information will be shared with third parties/affiliates for marketing/promotional purposes. All the above categories exclude text messaging originator opt-in data and consent; this information will not be shared with any third parties.
The Site is administrative platforms only. We permit the Donors to make donations to the Us and facilitate the receipt of the donation. We are not a broker, agent, financial institution, or creditor. No content is intended to provide financial, legal, tax or other professional advice. As part of the Services, We merely provide the Site to allow Donors to contribute funds to Us. The existence of the Site or the Services is not a solicitation of donations by Us, and We do 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 Site or the Services, Donors understand and agree that We shall not be responsible for the use of the donations or the amount of contributions.
We make no representation as to whether all or any portion of the donations, including, if any, transaction fees, are tax deductible or eligible for tax credits. We 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. 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.
PRIVACY POLICY.
We respect the information that You provide to Us, and want to be sure You fully understand exactly how We use that information. So, please review Our Privacy Policy (“Privacy Policy”) on Our Site which explains everything.
ELECTRONIC COMMUNICATIONS
By using this Site (or any part thereof) or the Services, You consent to receiving electronic communications from Us (including, if You have opted in, via email or text message). These electronic communications may include notices about Our services, newsletter, transactional information and other information concerning or related to this Site. These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing. Standard carrier data charges may apply to Your use of text messaging and You are solely responsible for such charges.
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and We sometimes provide links on this Site to third-party websites. If You use these links, You will leave this Site. We are not obligated to review any third-party websites that You link to from this Site, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from this Site, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of this Site may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit Your activities on this Site to be shared with Your contacts in your third-party site account.
USER SUBMISSIONS
Certain areas of the Site may permit You to upload or submit feedback, information, images, data, text, software, messages, or other materials (each, a “User Submission”). You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, We do not guarantee that You will be able to edit or delete any User Submission You have submitted.
By submitting any User Submission, You are promising Us that:• You own all rights in Your User Submissions (including, without limitation, all rights to the reproduction and display of Your User Submissions) or, alternatively, You have acquired all necessary rights in Your User Submissions to enable You to grant to Us the rights in Your User Submissions as described in these Terms;
• You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submissions;
• Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
• You voluntarily agree to waive all “moral rights” that You may have in Your User Submission;
• Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading;
• Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
• Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
• You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;
• Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);
• Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
• Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and
• Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
• Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
• Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
• Display advertisements in connection with Your User Submissions and to use Your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of the Site through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on the Site and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your User Submission to any third party absent any obligation of confidence on the part of the recipient.
UNAUTHORIZED ACTIVITIES.
To be clear, We authorize Your use of this Site only for Permitted Purposes. Any other use of this Site beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Site. This is because as between You and Us, all rights in this Site remain Our property.
Unauthorized use of this Site may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use this Site in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
• For any public or commercial purpose which includes use of this Site on another site or through a networked computer environment;
• In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Site;
• In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
• To stalk, harass, or harm another individual;
• To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
• To interfere with or disrupt this Site or servers or networks connected to this Site;
• To use any data mining, robots, or similar data gathering or extraction methods in connection with this Site; or
• Attempt to gain unauthorized access to any portion of this Site or any other accounts, computer systems, or networks connected to this Site, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.
PROPRIETARY RIGHTS.
The trademarks, service marks, and logos of Company (“Our Trademarks”) used and displayed on various parts of the Site are registered and unregistered trademarks or service marks of Company. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Our Trademarks, the “Trademarks”). Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without Our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by Us in writing. All goodwill generated from the use of Our Trademarks inures to Our benefit.
Unless otherwise specified in these Terms, the Site, including the contents and materials on this Site are Our sole property, or the property of Our licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others, and We ask You to do the same. We may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If You believe that Your work is the subject of copyright infringement and/or trademark infringement and appears on Our Site, please provide Our designated agent the following information:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Us to locate the material.
• Information reasonably sufficient to permit Us to contact You as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted.
• A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Attn: The Global FoodBanking Network – Copyright or Trademark Infringement
CC: Ahlea Isabella
Email: aisabella@foodbanking.org and communications@foodbanking.org
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a valid DMCA take-down notice that We have received. If You receive such notice from us, You may provide us with a counter-notification in writing to Our designated agent that includes all of the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from You under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THE SITE, AND THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO THEIR USE IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SITE, AND THE SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE SITE, AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, AND/OR SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OR SERVICES OBTAINED THROUGH THE USE OF THE SITE, AND ARE NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
YOU ACCEPT FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS YOU MAKE IN THE COURSE OF USING THE SITE. YOU ACKNOWLEDGE AND AGREE THAT (A) USE OF THE SITE IS AT YOUR SOLE RISK; (B) COMPANY AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SITE, DELAYS OR ERRORS CAUSED BY ANY USER’S USE OF THE SITE, OR ANY PART THEREOF; AND (C) COMPANY IS NEITHER ACTING IN A FIDUCIARY CAPACITY NOR PROVIDING ANY INVESTMENT ADVICE TO ANY USER.
LIMITATION OF LIABILITY.
YOU ARE USING THE SITE, AND SERVICES AT YOUR SOLE RISK. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SITE OR YOUR USE OF OUR SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF DATA, LOSS OF REVENUE, LOSS OF PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, LOSS OF USE, OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OUR TOTAL LIABILITY UNDER THESE TERMS EXCEED $100.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE WEBISTE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. WE EXPLICITLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OF THE SITE AND ALL OTHER THIRD PARTIES.
LOCAL LAWS; EXPORT CONTROL.
We control and operate this Site from Our headquarters in the United States of America and the entirety of this Site may not be appropriate or available for use in other locations. If You use this Site outside the United States of America, You are solely responsible for following applicable local laws.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read The Following (this “Provision”) Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy), whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us (collectively, the “Disputes”). Effectively, then, “Dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all Disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at info@foodbanking.org. the following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) the Dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at info@foodbanking.org. the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve Disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either Illinois or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge or Jury in Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms, Everyone is giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation
This Provision shall survive Your discontinued use of this Site or the Services. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a Dispute between You and Us arises.
LANGUAGE.
The parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.
GENERAL.
We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to this Site without prior notice to You. The Federal Arbitration Act, Illinois state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Cook County, Illinois. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Site. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CONTACT US.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at info@foodbanking.org.
