Thank you for using the services offered by U-Pledge, Inc. d/b/a B Generous (together with its subsidiaries and other affiliates, “B Generous”, “we”, “us”, and “our”). These Terms of Service (the “Agreement”) apply to all use of the B Generous website, related software, mobile applications and other applications (collectively, the “B Generous Services”). The use of any B Generous Services is conditioned on the acceptance of, and compliance with, the terms of this Agreement by you, the person agreeing to this Agreement (“you” and “your”). You and B Generous are alternatively referred to herein as a “Party” and collectively as the “Parties”.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS WITH B GENEROUS.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT OR THE B GENEROUS SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. B Generous Services.
1.2. Overview of B Generous Services.
(a) PODL Program. Through the B Generous Services, prospective donors are offered the option to “Donate Now and Pay Later” by applying for a PODL from the Issuing Bank. Depending on the nonprofit organization that a prospective donor selects as the beneficiary of a donation through a PODL (each, a “Nonprofit”), the structure of the PODL may differ. If the selected Nonprofit has directly signed up to use the B Generous platform to receive donations (each, an “Enrolled Nonprofit”), then the proceeds from the PODL will be disbursed directly to the Nonprofit. If the selected Nonprofit hasn’t given consent to be included on the B Generous platform (each a “GVNGorg Nonprofit Project”), then the proceeds of the PODL will be disbursed to B Generous’ partner charity, GVNGorg, which will distribute a grant to the selected Nonprofit. For PODL proceeds that are disbursed to GVNGorg, GVNGorg will distribute a grant to the selected Nonprofit in accordance with GVNGorg’s grantmaking policies and procedures, as further outlined in section 1.2(h) below. The PODL Program permits prospective donors to apply for a PODL between $75 and $20,000. Full PODL terms will be provided to prospective donors during the application and acceptance process. For donations made through GVNGorg, the donation tax receipt will list GVNGorg as the recipient of the donation, and specify your designated Nonprofit. All donations made through the PODL Program are final and nonrefundable.
(b) Pay Now Program. As an alternative to a PODL, prospective donors have the option under the Pay Now Program to immediately pay the full amount of any donation that a donor elects to support certain Nonprofits (each, a “Pay Now Donation”). Donations that are made through the Pay Now Program to an Enrolled Nonprofit, will be processed by the recipient Nonprofit’s payment processor Shift4. Donations that are made through the Pay Now Program to a GVNGorg Nonprofit Project will go to GVNGorg, which will distribute a grant to the selected Nonprofit in accordance with GVNGorg’s grantmaking policies and procedures, as further outlined in section 1.2(h) below. The Pay Now Program permits donations of between $10 and $1,000,000. For donations made through GVNGorg, the donation tax receipt will list GVNGorg as the recipient of the donation, and specify your selected Nonprofit. All donations made through the Pay Now Program are final and nonrefundable.
(c) Enrolled Nonprofits. Enrolled Nonprofits have contracted with B Generous to receive donations through the PODL Program and/or the Pay Now Program. B Generous does not represent or warrant that any nonprofit you support will be an Enrolled Nonprofit, as some will be a GVNGorg Nonprofit Project, as further explained in section 1.2(h) of these Terms of Service.
(d) Rewards Programs. In connection with the B Generous Services, B Generous may make available certain rewards to donors from time to time. As of the Effective Date, B Generous has rewards programs with Restaurant.com and Xoxoday. For each rewards program, certain eligibility and other restrictions may apply, and certain requirements may need to be satisfied in order to participate. With respect to the Restaurant.com rewards program, visit Restaurant.com for complete terms and conditions, participating restaurants and providers. With respect to the Xoxoday rewards program, visit Xoxoday.com/terms-of-use for complete terms and conditions. B Generous reserves the right to impose additional requirements, terms and conditions for participation in any rewards program. B Generous may terminate any rewards program at any time, with or without notice.
(e) Tax-Deductibility. Donations made through the B Generous Services to Enrolled Nonprofits or GVNGorg Nonprofit Projects, under the PODL Program, are tax-deductible to the extent allowed by law. PODL donations are considered tax-deductible donations on the date the PODL is approved. Pay Now Donations are considered tax-deductible donations on the date the donation transaction is completed. In certain instances, donors may receive a gift card or other item of value in exchange for making their donation, such as through the rewards programs. Donors may only take a contribution deduction to the extent that their contribution exceeds the fair market value of the goods or services they receive in return for their contribution. In those cases, your donation receipt will reflect the donation amount, as well as a description and good faith estimate of the value of the goods or services, if any, provided in return for the contribution. Donation receipts will be issued by email on behalf of the Enrolled Nonprofit or GVNGorg Nonprofit Project, as applicable, promptly following completion of the donation transaction.
(f) Help Cover Fees Option. The PODL Program may include a “Help Cover Fees Option” feature for donations to Enrolled Nonprofits, meaning those which have directly signed up to use the B Generous platform to receive donations. This Option allows donors who have specified an initial donation amount (“Original Donation”) to make an additional donation (“Additional Donation,” and together with the Original Donation, the “Total Donation”) in order to help Nonprofits receive a larger amount of funds to support their mission.
(g) Transfer of Donations to Enrolled Nonprofits. For Enrolled Nonprofits, the Issuing Bank will pay the PODL donation amount (equal to the gross PODL proceeds) to the selected Nonprofit within fourteen (14) days following approval of the PODL and completion of the donation transaction using B Generous’ Platform or API. See section 1.2(h) below for information regarding the timing of grant disbursements when the proceeds from a PODL are disbursed to GVNGorg to support a GVNGorg Nonprofit Project.
(h) GVNGorg Grantmaking Process; Transfer of Donations to GVNGorg Nonprofit Projects. B Generous has partnered with GVNGorg to allow individuals to support Nonprofits that do not have a direct relationship with B Generous (each, a “GVNGorg Nonprofit Project”). GVNGorg is a 501(c)(3) tax-exempt public charity with a charitable mission to increase giving by empowering citizen philanthropists, and GVNGorg provides citizen philanthropists with the opportunity to support their causes through PODLs or Pay Now Donations. As required by the Internal Revenue Service, GVNGorg has exclusive legal control over all donations it receives through the B Generous Services, and all donations made through the B Generous Services are final and nonrefundable. GVNGorg will distribute grants to a donor’s selected Nonprofit, assuming it passes GVNGorg’s vetting and qualifications, within 30 days following the completion of the donor’s PODL or Pay Now Donation transaction, provided that such distribution may take up to three (3) months after the donor’s PODL or Pay Now Donation transaction is completed for eligible Nonprofits that are not set up to receive grants by ACH transfer, subject to applicable laws. Under certain circumstances, such as a selected Nonprofit failing to be eligible to receive tax-deductible charitable contributions under the Internal Revenue Code, or the selected Nonprofit failing to be in good standing where applicable, GVNGorg may not be able to distribute the funds as requested by the donor, in which case B Generous, on behalf of GVNGorg, will attempt to contact the donor to provide an opportunity to select another Nonprofit to receive the PODL or Pay Now Donation. If for any reason the donor does not select another GVNGorg Nonprofit Project to receive grant funds, or if grant funds are not otherwise able to be distributed to the selected Nonprofit for any reason, B Generous will recommend to GVNGorg an eligible GVNGorg Nonprofit Project to receive the grant funds.
(i) PODL Initial Repayment Deadline; Fraudulent Transactions and Returned Grant Funds. The first PODL repayment is due within seven (7) business days of completing the PODL Donation transaction, and is generally set up as an automated ACH payment transfer. If the first PODL repayment has not been initiated by the initial payment deadline, B Generous will send a communication to the donor on behalf of the Issuing Bank advising that the payment is overdue. If, after fourteen business days, the first PODL repayment has still not been made by the donor, or B Generous or Originating Bank otherwise discovers fraud prior to the donor’ first payment on either a PODL or a Pay Now Donation, as determined by B Generous or the Original Bank in their sole discretion (“Fraudulent Transaction”), B Generous will issue a follow-up letter on behalf of GVNGorg to any person who received a donation receipt in connection with a Fraudulent Transaction, stating that the donation receipt issued is void and may not be relied upon or otherwise used in connection with the recipient’s tax filings or for any other purpose. In the event of fraud, as determined by B Generous or the Original Bank in their sole discretion, GVNGorg will return the funds to the donor on a Pay Now Donation, or to the Originating Bank, as applicable, from the B Generous Fund.
(j) Fees. Certain fees are charged in connection with donations under the PODL Program and the Pay Now Program, as described in this section 1.2(h). For Enrolled Nonprofits, a program fee of between 8.25% and 16.99% (rounded to the nearest $0.01) of the amount of the PODL proceeds (e.g., the Total Donation, for a PODL that is subject to an Additional Donation) is charged to the Enrolled Nonprofit. If the selected eligible Nonprofit hasn’t given permission to be included on the B Generous platform (GVNGorg Nonprofit Project), and the proceeds of the PODL are disbursed to GVNGorg, then (i) a program fee of 16.99% (rounded to the nearest $0.01) of the amount of the PODL proceeds is charged to GVNGorg, and GVNGorg will retain either: (a) one percent (1%) of the Total Donations under the PODL Program that are directed to GVNGorg through the Platform, or (b) one half of one percent (0.5%) of the Total Donations under the Pay Now Program that are directed to GVNGorg through the Platform, in order to cover its program operating costs (the “GVNGorg Retained Amount”). In addition, if a physical check is required to be mailed to the GVNGorg Nonprofit Project because it is not set up to receive grant payments from either B Generous or GVNGorg by ACH transfer, an additional $2.00 check disbursement fee will be deducted from the aggregate amount scheduled to be disbursed to the Nonprofit, which grant payment may include amounts contributed by other donors. Donations that are paid through the Pay Now Program are subject to standard credit card processing fees, which will be charged to the Nonprofit recipient of the donation, which if the nonprofit is a GVNGorg Nonprofit Project, will be GVNGorg.
1.3. Important Information About Procedures for Opening a New Account with an Issuing Bank. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, the Issuing Bank will ask for your name, address, date of birth, and other information that will allow it to identify you. The Issuing Bank may also ask to see your driver’s license or other identifying documents.
1.4. Additional Services. B Generous may make certain additional products or services available through its platform, as may be developed from time to time. To the extent the receipt of any such additional service requires your agreement to this Agreement, then such additional service shall constitute a B Generous Service for purposes of this Agreement.
1.5. No Professional Advice. You acknowledge that B Generous is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, compliance, or other professional advice. Any information provided by the B Generous Services is intended for your general use only and does not constitute legal or professional advice. You understand that you are responsible for any actions taken based upon information received from B Generous, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.
1.6. User Limitations. The B Generous Services may only be accessed and used by individuals who are at least 18 years of age (or such later age of majority in any applicable jurisdiction) and are not otherwise barred from using the B Generous Services under applicable law.
1.7. Mobile Services. The B Generous Services may be available via a mobile device, including (i) the ability to upload content to the B Generous Services, (ii) the ability to browse the B Generous Services and other websites, and (iii) the ability to access certain features (collectively, the “Mobile Services”). To the extent you access the B Generous Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
2. Your Responsibilities.
2.1. Accuracy of Information. All B Generous Services will use information you provide to B Generous or the Issuing Bank, or information provided by third party services from which you may elect to import your information. You represent and warrant that all information that you provide in connection with the B Generous Services (“User Data”) is accurate, complete, and timely. You acknowledge that B Generous is entitled to rely conclusively on all User Data and that B Generous does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the User Data. You further acknowledge that B Generous bears no responsibility for and shall not have any liability for errors, omissions, penalties, fines, missed payments, judgments, incorrect coverage, or any other losses incurred that result from inaccurate, incomplete, or untimely User Data.
2.3. Account Administration.
(a) Accounts. To use certain B Generous Services, you may be required to create an account (an “Account”) by providing your email address (“Account Email”) and a password (the “Password” and, together with the Account Email, the “Credentials”). You are responsible for the security of your Account and agree to keep your Credentials secure. You understand that your Account is solely for your use, and you will not share your Account or Credentials with anyone. You are fully responsible for all activities on the B Generous Services associated with your Account.
(b) Account Security. You are solely responsible for following instructions that B Generous provides to you with respect to the B Generous Services. You will adequately secure and keep confidential any of your Passwords or Credentials, and any information accessible via your Account. If you believe or suspect that your Account, Passwords or Credentials have been improperly accessed or compromised, you must immediately notify B Generous. B Generous reserves the right to prevent access to the B Generous Services if B Generous has reason to believe that any such Accounts, Passwords or Credentials have been compromised.
(c) Communications and Notifications. You are responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) made available to you by B Generous for your review, and you must notify B Generous of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from B Generous. You must promptly notify B Generous of any third-party notices that you may receive which could affect B Generous’ ability to effectively provide the B Generous Services.
2.4. Prohibited Activities. Any authorization to access or use the B Generous Services extends only to the B Generous Services for which you have subscribed and remain in good standing, and for which your conduct is in conformance with these terms and any applicable Supplemental Terms. You will not (nor will you permit any third party to):
- reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the B Generous Services;
- transfer, resell, lease, license, or assign B Generous Services or otherwise offer the B Generous Services on a standalone basis, or permit any third party to access the B Generous Services, without express permission from B Generous;
- use or access the B Generous Services to build a similar or competitive product or service or for the purpose of obtaining unauthorized access to the B Generous Services;
- share your B Generous Credentials with any other person, or allow any other person to use your B Generous Credentials to access the B Generous Services;
- develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to scrape the B Generous Services or otherwise copy profiles and other data from the B Generous Services in order to enable, use, or build a similar or competitive product or service;
- tamper with the security of B Generous’ systems or tamper with other customer accounts of B Generous;
- attempt to probe, scan or test the vulnerability of any B Generous systems or to breach the security or authentication measures of B Generous’ systems;
- use the B Generous Services to send payments directly or indirectly to, or for the benefit of, any person or entity that is (a) located in any country or jurisdiction that is subject to U.S. economic sanctions; (b) identified on any U.S. government list of prohibition, including the Specially Designated Nationals and Consolidated Sanctions List of the Office of Foreign Assets Control, U.S. Department of the Treasury; or (c) owned or controlled by any person or entity in (a) or (b);
- use or launch any automated system, including “robots,” “spiders,” or “offline readers,” that sends more requests to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
- use the B Generous Services in any manner that damages, disables, overburdens, or impairs any of our websites, servers, or otherwise interferes with any other party’s use of the B Generous Services;
- access the B Generous Services other than through our interface;
- engage in harassing or other inappropriate behavior with respect to any B Generous employee;
- use the B Generous Services for any fraudulent activity or purpose; or
- use the B Generous Services in violation of any applicable law, for illegal activities, or for activities outside the scope expressly permitted hereunder.
2.5. Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting you, and any use you may make of the B Generous Services. B Generous may in its sole discretion limit access to the B Generous Service and/or terminate any users who infringe any intellectual property rights of others.
3. Term and Termination.
3.1. Term. The term of this Agreement will commence on the date you execute or otherwise agree to this Agreement and will continue until terminated as provided in this Agreement (the “Term”). B Generous may change the B Generous Services, stop providing the B Generous Services or features of it or create usage limits for the B Generous Services for all of our users generally; provided that we will notify you of any material change at least thirty (30) days prior to the implementation of the change unless the changes are being made for legal reasons, in which case we will notify you within a reasonable time period.
3.2. Termination. B Generous may permanently terminate your access to the B Generous Services and this Agreement without liability to you on thirty (30) days’ prior notice for any actual or suspected violation of any provision of this Agreement. Otherwise, this Agreement shall terminate automatically if B Generous is no longer providing any B Generous Services to you. Upon termination of this Agreement, you will remain obligated to pay any outstanding amounts to B Generous or to any third party, pursuant to the terms of any other agreement that you execute in connection with the B Generous Services, and B Generous and you will continue to be bound by any terms of this Agreement that by their nature extend beyond termination.
3.3. Suspension. Without limiting our other rights or remedies, B Generous may temporarily suspend your access to any portion of the B Generous Services, without prior notice, if B Generous reasonably determines that (i) there is a threat or attack on the B Generous Services or other event that may create a risk to the B Generous Services, you or any other customer or user of B Generous; (ii) your use of the B Generous Services disrupts or poses a security risk to the B Generous Services or any other B Generous customer; or (iii) you are in breach of Section 2.4 (Prohibited Activities) or Section 2.5 (Compliance with Laws) (collectively, “Service Suspensions”). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of B Generous Services following any Service Suspension. Neither B Generous nor the Issuing Bank will have any liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
4. Proprietary Rights and Confidentiality.
4.1. B Generous’ Ownership Rights. As between you and B Generous, all right, title, and interest in and to the B Generous Services shall remain vested in B Generous. Except for the express rights granted hereunder, B Generous also reserves all rights, title and interests in and to the B Generous Services and B Generous’ Confidential Information.
4.2. Feedback. You may from time to time provide B Generous suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the B Generous Services. B Generous will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. B Generous will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.4. Data Security and Data Processing; Privacy.
(a) Data Security. B Generous will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any User Data, which you provide through the B Generous Services and that B Generous hosts. Such safeguards will include, at minimum, an industry standard information security program to safeguard such User Data as well as procedures to help ensure that only those with a “need to know” have access to such User Data. B Generous will promptly notify you upon becoming aware of an incident that has or potentially has compromised the security, confidentiality or integrity of such User Data. B Generous will comply with all notification obligations that may be required by applicable state and federal laws and regulations. B Generous further reserves the right to protect its network and services from external threats, including by restricting network access from various hosting providers, traffic proxies, and locations where B Generous does not conduct business.
THE B GENEROUS SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. B GENEROUS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE B GENEROUS SERVICES. WITHOUT LIMITING THE FOREGOING, B GENEROUS DOES NOT WARRANT THAT THE B GENEROUS SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM B GENEROUS OR THROUGH THE B GENEROUS SERVICES WILL CREATE ANY WARRANTY. B GENEROUS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
6.1. Indemnification by You. You agree to indemnify, defend and hold harmless B Generous and the Issuing Bank against any claim, demand, suit, or proceeding (“Claim”) arising out of (a) your unauthorized use of or access to the B Generous Services, (b) your violation of any term of this Agreement, (c) your violation of any third-party rights, including any right of privacy, any right provided by any labor or employment law, rule, or regulation or any intellectual property right, (d) your violation of any applicable law, rule or regulation, (e) your use of the User Data, and (f) any agreement entered into, or any dispute, between you. In order to receive the benefit of the foregoing indemnity, B Generous must give you prompt written notice of the Claim and all reasonable cooperation, at your expense, in your defense and settlement of the Claim.
6.2. Indemnification by B Generous. B Generous agrees to indemnify, defend and hold you harmless against any Claim arising out of allegations by a third party that the B Generous Services or any portion thereof infringe(s) or otherwise violate(s) such third party’s U.S. intellectual property rights. In order to receive the benefit of the foregoing indemnity, you must give B Generous prompt written notice of the Claim, sole control to defend and settle such Claim and all reasonable cooperation, at B Generous’ expense, in B Generous’ defense and settlement of the Claim. If a claim under the foregoing clause (a) is made or likely to be made, B Generous may: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the B Generous Services, (ii) modify the infringing component(s) to make them non-infringing, or (b) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately.
7. Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 7 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY. B GENEROUS HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE B GENEROUS SERVICES PROVIDED FOR IN THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, B GENEROUS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS, INCLUDING THE ISSUING BANK, SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING YOUR USE OF, OR INABILITY TO USE, THE B GENEROUS SERVICES, (B) ERRORS, MISTAKES OR INACCURACIES OF THE B GENEROUS SERVICES, (C) PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE B GENEROUS SERVICES, (D) THE CONTENT OF YOUR USER DATA, (E) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE B GENEROUS SERVICES, (F) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR B GENEROUS SERVICES BY ANY THIRD PARTY, (G) ANY ERRORS OR OMISSIONS IN THE B GENEROUS SERVICES OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE B GENEROUS SERVICES, AND/OR (H) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. B GENEROUS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS, INCLUDING THE ISSUING BANK, SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING ONE HUNDRED DOLLARS ($100). THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF B GENEROUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
8.1. Assignment; Delegation. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of B Generous. Any attempted transfer or assignment in violation hereof shall be null and void. B Generous, in its sole discretion, may use vendors or contractors to help provide the B Generous Services to you, and may change our use of vendors or contractors without notice to you. B Generous will remain responsible for the acts and omissions of such vendors and/or contractors.
8.2. Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. Subject to the agreement to arbitrate below, all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of New Castle County, Delaware, and the Parties hereby consent to the personal jurisdiction of these courts.
8.3. Notices. B Generous may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, text message, written or hard copy notice, or through posting of such notice on the B Generous Services, as determined by B Generous in its sole discretion. B Generous reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as provided in the B Generous Services. B Generous is not responsible for any automatic filtering you or your network provider may apply to email notifications B Generous sends to the email address you provide. B Generous may, in its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When B Generous materially changes this Agreement, B Generous will update the “Effective Date” date at the top of this page and notify you that material changes have been made to this Agreement. Any such changes will become effective no earlier than thirty (30) days after they are posted, except that changes addressing new functions of the B Generous Services or changes made for legal reasons will be effective immediately. Your continued use of the B Generous Services after the date any such change become effective constitutes your acceptance of this Agreement, as updated. If you do not agree to any of these terms or any future terms, you may not use or access the B Generous Services. Notices to B Generous shall be sent via email to Notice@bgenerous.com.
8.4. Waiver. No waiver of any rights will be effective unless assented to in writing by both Parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
8.5. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
8.6. Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of this Agreement will remain in full force and effect and bind the Parties according to its terms.
8.7. Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
8.8. Entire Agreement. This Agreement comprises the entire agreement between you and B Generous with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by B Generous, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
8.9. Interpretation. For purposes hereof, “including” means “including without limitation”.
8.10. Accessibility. The B Generous Services are intended to be accessible to all individuals in accordance with the Americans with Disabilities Act. If any portion of the B Generous Services are inaccessible to you for any reason, please contact us at 1-844-636-2436
9. Agreement to Arbitrate and Class Action Waiver
9.1. Support. If you have any issues with B Generous Services, B Generous, or any issue covered by this Agreement, you must try to resolve the issue first through B Generous Customer Support. If you are not able to resolve the issue through B Generous customer support within sixty (60) days, you may pursue the dispute resolution procedures detailed in the remainder of Section 9.
This arbitration agreement is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.
This arbitration agreement is intended to be broadly interpreted and will survive termination of this Agreement, which means (among other things) that this arbitration agreement applies even after you have stopped using your B Generous account or have deleted it. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this agreement is void or voidable. If the Parties have a dispute about whether this arbitration agreement can be enforced, whether this arbitration agreement applies to a dispute, or any other dispute about the meaning or scope of this arbitration agreement, the Parties agree that the arbitrator shall have exclusive authority to resolve the dispute.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow this Agreement as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief.
In the event this arbitration agreement is for any reason held to be unenforceable or inapplicable to a claim, any litigation against B Generous (except for the intellectual property and small claims actions described in Section 10.3 below) may be commenced only in a federal or state court located within New Castle County, Delaware, and both Parties consent to the jurisdiction of those courts for such purposes.
9.3. Exceptions to Agreement to Arbitrate. You and B Generous agree that the agreement to arbitrate will not apply to any disputes relating to your or B Generous’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that such disputes may be brought in any court that has jurisdiction over such claims. Also, either Party can bring a claim in small claims court in New Castle County, Delaware (or small claims court in another place if both Parties agree in writing), if it qualifies to be brought in that court.
9.4. Details of Arbitration Procedure.
(a) Informal Resolution. You and B Generous agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Prior to demanding or filing any arbitration, you and B Generous agree to personally meet and confer, in person or by videoconference, in a good-faith effort to resolve informally any claim covered by this arbitration agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The Party initiating the claim must give notice to the other Party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other Party receives such notice, unless an extension is mutually agreed upon by the Parties. To notify B Generous that you intend to initiate an informal dispute resolution conference, email Notice@bgenerous.com with the subject “INFORMAL DISPUTE RESOLUTION REQUEST” and provide your name, the telephone number associated with your B Generous account, the email address associated with your email account, and a description of your claim. In the interval between the Party receiving such a notice and the informal dispute resolution conference, the Parties shall be free to attempt to resolve the initiating Party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process described in this paragraph.
(b) If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either Party may initiate an arbitration proceeding under the rules of the AAA. AAA’s rules and procedures are available on their website available at http://www.adr.org. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “AAA Rules”) and will be held before a single arbitrator appointed in accordance with the AAA Rules. To the extent anything described in this agreement to arbitrate conflicts with the AAA Rules, the language of this agreement to arbitrate applies. Any arbitration will be conducted in New Castle County, Delaware, or in another location that both Parties agree to in writing.
(c) Discovery. Each Party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other Party and each Party may take one (1) deposition. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either Party.
(d) Arbitration Award. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Delaware and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement and may not award any relief that is inconsistent with this Agreement.
(e) Final and Binding. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
9.5. Class Action Waiver. You and B Generous agree that any claims or controversies between the Parties must be brought against each other on an individual basis only, and not in a class, consolidated, or representative action. That means neither you nor B Generous can bring such a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine or consolidate more than one person’s or one entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless all Parties agree otherwise in writing). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other entities or B Generous customers, and cannot be used to decide other disputes with other customers. YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-WIDE OR REPRESENTATIVE ARBITRATION, AND YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT (INCLUDING FOR ANY CLAIM THAT IS DETERMINED NOT TO BE SUBJECT TO ARBITRATION UNDER THESE TERMS). If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.