Terms of Service

Last Updated: January 18, 2024

Overview:

At AutoGive, we are on a mission to make the world a better place. We hope you love our product and find it incredibly useful as you help yourself and others live a better life.

These Terms of Service (“Terms”) describe our commitments to you, and your rights and responsibilities when using our Services. Please read them carefully and reach out to us if you have any questions. THE TERMS INCLUDE IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, AND COVERS AREAS SUCH AS LIMITATIONS OF LIABILITY, THE RESOLUTION OF DISPUTES BY ARBITRATION, AND A CLASS ACTION WAIVER.

If you don’t agree to these Terms, don’t use our services.

Terms of Service

These Terms govern your access to and use of the Products and Services we provide through or for AutoGive, Inc. (AutoGive.com)

These Terms also govern visitors’ access to and use of any websites that use our Services, like the websites and/or groups that our users create on AutoGive.com. Please note though that the operators of those websites and/or groups may also have their own separate terms of use.

Please read these Terms carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to be bound by all of the Terms and all other operating rules, policies, and procedures that we may publish via the Services from time to time (collectively, the “Agreement”). You also agree that we may automatically change, update, or add on to our Services as stated in the Terms, and the Agreement will apply to any changes.

1. Definitions

"You" means any individual or entity using our Services. If you use our Services on behalf of another person or entity, you represent and warrant that you’re authorized to accept the Agreement on that person’s or entity’s behalf, that by using our Services you're accepting the Agreement on behalf of that person or entity, and that if you, or that person or entity, violates the Agreement, you and that person or entity agree to be responsible to us.

Please see below to determine which entity your Agreement is with, which depends on where you reside and which Services you use. We use the term “Designated Countries” to refer to The United States of America, Canada, Australia, Canada, and New Zealand.

"Website/Group" means the destination you create and/or are visiting for the purposes of either making or collecting payment.

"Website/Group Organizer/Owner" means any individual responsible for the creation of a Group for the purposes of collecting payments.

"Group Member" means any individual who has joined a Group.

"Recipient" means any individual who receives payments collected by a Group.

We refer to AutoGive Inc. collectively as “AutoGive,” “us,” or “we” throughout these Terms.

2. Your Account

When using our Services requires an account, you agree to provide us with complete and accurate information and to keep the information current so that we can communicate with you about your account.

SMS & Email Notifications:

You agree that AutoGive may send you emails or text messages (SMS) regarding multi-factor authentication codes (2FA), important notifications about your account's activity, notable updates (like changes to our Terms of Service or Privacy Policy), or to let you know about legal inquiries or complaints we receive about the ways you use our Services so you can make informed choices in response.

You agree to all standard SMS messaging rates charged by your mobile carrier.

We may limit your access to our Services until we’re able to verify your account information, like your email address.

When you create an AutoGive account, we consider that to be an inquiry about our products and services, which means that we may also contact you to share more details about what we have to offer (i.e., marketing). Don’t worry — if you aren’t interested, you can opt out of the marketing communications, whether it’s an email, phone call, or text message.

You’re solely responsible and liable for all activity under your account. You’re also fully responsible for maintaining the security of your account (which includes keeping your access secure). We’re not liable for any acts or omissions by you, including any damages of any kind incurred as a result of your acts or omissions. If you choose to use our Services for unlawful or inappropriate purposes, AutoGive will terminate your account and cooperate with law enforcement where applicable.

Don’t share or misuse your access credentials. And notify us immediately of any unauthorized uses of your account, group, or website, or of any other breach of security. If we believe your account has been compromised, we may suspend or disable it.

If you'd like to learn about how we handle the data you provide us, please see our Privacy Policy.

3. Minimum Age Requirements

Our Services are not directed to children. You’re not allowed to access or use our Services if you’re under the age of 18 or the legal age of majority where you live. If you register as a user or otherwise use our Services, you represent that you’re at least 18 years of age or the legal age of majority where you live. You may use our Services only if you can legally form a binding contract with us. In other words, if you’re under 18 years of age (or the legal age of majority where you live), you can only use our Services under the supervision of a parent or legal guardian who agrees to the Agreement.

4. Responsibility of Visitors and Users

We’re not responsible for any use or effects of content (like text, photo, video, audio, code, computer software, use of proceeds, and other materials) posted to or made available through our Services by users or anyone else (“Content”) or third-party websites. So, for example:

• We don't have any control over third-party websites.
• A link to or from one of our Services does not represent or imply that we endorse any third-party website.
• We don't endorse any Content or represent that Content is accurate, useful, or not harmful. Content could be offensive, indecent, or objectionable; include technical inaccuracies, typographical mistakes, or other errors; or violate or infringe the privacy, publicity rights, intellectual property rights, or other proprietary rights of third parties.
• You're fully responsible for the Content available on your website and/or group, and any harm resulting from that Content. It's your responsibility to ensure that your website or group's Content abides by applicable laws and by the Agreement.
• We aren't responsible for any harm resulting from anyone's access, use, payment, or downloading of Content, or for any harm resulting from third-party websites. You're responsible for taking the necessary precautions to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
• Any Content available through any of our Services is the seller's sole responsibility, so you must look solely to the creator or organizer for any damages that result from your use of Content.

• We are not a party to, and will have no responsibility or liability for, any communications, transactions, interactions, or disputes between you and the provider of any Content.
• Please note that third-party terms and conditions may apply to Content you download, copy, purchase, support or use.

5. Fees, Payment, and Renewal

a. AutoGive Fees

Fees for Paid Services: Our Services are offered for a fee (referred to as “Paid Services”). This section applies to any usage of Paid Services.

By using a Paid Service, you agree to pay the specified fees. Depending on the Paid Service, there may be one-time fees, recurring fees, or revenue-based fees. For recurring fees (AKA subscriptions and monthly payments), your subscription begins on your payment date, and we’ll bill or charge you in the automatically-renewing interval (such as monthly, annually, or biennially) you select, on a pre-pay basis until you cancel, which you can do at any time by visiting the Settings area of your AutoGive account.

‍

‍

Please note that 100% of the monthly gift goes directly to the named Recipient because Group Members cover ALL FEES.

$4.00
Monthly Group Subscription Fee

$0.30
Monthly fixed payment processing fee.

3.25%
Processing fee applied to your total payment.

For Example:

You choose to give $44 each month to a loved-one and in doing so, you subscribe to the Group supporting them for $1 per week (billed as $4 per month).

$44.00 - Recurring Monthly Gift
‍+ $ 4.00 - Recurring Monthly Group Subscription Fee
+ $ 0.30 - Recurring Monthly Fixed Processing Fee
-------------------------------
= $48.30 - Total Before % Fee
-------------------------------
+ $ 1.57 - (3.25%) Processing & Payout Fee
-------------------------------
= $49.87 Total Monthly Recurring Payment

All fees are ongoing and recurring on a monthly basis until canceled by you.

Taxes:

Generally speaking, receiving a financial gift or donation in the U.S. is not considered income and is not taxed as income. However, if you are promising anything in return for financial contributions, you may be engaging in sales which are subject to all applicable taxes in your location and/or the location of those who are purchasing goods or services from you.

Please consult your financial advisor to determine whether gifts received will impact your eligibility, or the Recipient's eligibility, to other income or assistance programs.

AutoGive is not a registered non-profit under 501(c)(3). Any information found on this website does not constitute tax advice.

Please consult your tax advisor to determine reporting requirements for gifts made to individuals.

‍Payment: You must provide accurate and up-to-date payment information. By providing your payment information, you authorize us to store it until you request deletion. If your payment fails, we suspect fraud, or Paid Services are otherwise not paid for or paid for on time (for example, if you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services), we may immediately cancel or revoke your access to Paid Services without notice to you. You authorize us to charge any updated payment information provided by your bank or payment service provider (e.g., new expiration date) or other payment methods provided if we can't charge your primary payment method.

Automatic Renewal: By enrolling in a subscription, you authorize us to automatically charge the then-applicable fees for each subsequent subscription period until the subscription is canceled. This means that unless you cancel a subscription, it'll automatically renew and we'll charge your payment method(s). You must cancel at least 24 hours before the end of any monthly subscription period. The date for the automatic renewal is based on the date of the original payment to a given Group. If you’ve made payments to multiple Groups, you may have multiple payment & fee renewal dates.

You can view your renewal date(s), cancel, or manage payments and subscriptions in the Settings area of your AutoGive account or by contacting the support team.

Fees and Changes: We may change our fees at any time in accordance with these Terms and requirements under applicable law. This means that we may change our fees going forward, start charging fees for Services that were previously at a different price, or remove or update features or functionality that were previously included in the fees. If you don’t agree with the changes, you must cancel your Paid Service.

Refunds: We may have a refund policy for some of our Paid Services, and we’ll also provide refunds if required by law. In all other cases, there are no refunds and all payments are final.

b. Fees Collected by Website/Group Owners

Fees Paid to Websites, Website/Group Owners: Website/Group owners can invite others to make financial contributions to their websites/Groups. We’re not involved in a website/Group’s details or day-to-day management, moderation or messaging (including the quality, timing, or legality of what may or may not be included in exchange for payment, or any goods or services purchased). If you make a payment to a website/Group in exchange for goods or services, you’re making the purchase directly from the website/Group owner, and they’re solely responsible for the items promised. Please contact the website/Group owner directly if you have any questions or complaints.

Automatic Renewal: Any recurring payments you make to a website/Group owner are automatically renewed. This means that unless you or the website/Group owner cancels your website/Group membership before the end of the subscription period, your membership will automatically renew and your payment method will be charged. For example, if you choose to support and join an AutoGive website/Group at a monthly renewing website/Group subscription, you’ll be automatically charged once each month until the subscription is canceled. You can view the renewal dates or cancel your website subscriptions in the Settings area of your AutoGive account.

Refunds: We’re not responsible for refunding fees paid to a website/Group owner because those transactions are between website/Group owners and their Members. If you’d like to request a refund, please contact the website/Group owner. If you have a complaint regarding a website/Group owner, you can contact us.

6. Feedback

We love hearing from you and are always looking to improve our Services. When you share comments, ideas, or feedback with us, you agree that we're free to use them without any restriction or compensation to you.

7. General Representation and Warranty

Our mission is to make the world a better place, and our Services are designed to give you control and ownership over your websites/Groups. We encourage you to express yourself freely & creatively, subject to a few requirements.

In particular, you represent and warrant that your use of our Services:

Will be in strict accordance with the Agreement;

Will be suspended and/or terminated at any time and for any reason at our sole discretion;

Will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, the transmission of technical data exported from the United States or the country in which you reside, the use or provision of financial services, notification and consumer protection, unfair competition, and false advertising);

Will not be for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities;

Will not infringe or misappropriate the intellectual property rights of AutoGive or any third party;

Will not overburden or interfere with our systems or impose an unreasonable or disproportionately large load on our infrastructure, as determined by us in our sole discretion;

Will not disclose the personal information of others;

Will not be used to send spam or harass others;

Will not interfere with, disrupt, or attack any service or network;

Will not be used to create, distribute, or enable material that is, facilitates, or operates in conjunction with, malware, spyware, adware, or other malicious programs or code;

Will not involve reverse engineering, decompiling, disassembling, deciphering, or otherwise attempting to derive the source code for the Services or any related technology that is not open source; and

Will not involve renting, leasing, loaning, selling, or reselling the Services or related data without our consent.

8. Specific Service Terms

a. AutoGive Websites, Groups and Accounts:

AutoGive enables you to invite others to join your Group and financially support yourself or someone you care about.

We don't own your content, and you retain all ownership rights & liabilities for the content you post to your website/Group. However, you are responsible for what you publish. In particular, make sure that nothing prohibited (like spam, viruses, or threats of violence) appear in your website/Group or it will be terminated and you will be prohibited from using our Services.

If you find an AutoGive website/Group that you believe violates these Terms, please let us know: https://www.autogive.com/contact.

License: By uploading or sharing Content, you grant us a worldwide, royalty-free, transferable, sub-licensable, and non-exclusive license to use, reproduce, modify, distribute, adapt, publicly display, and publish the Content solely for the purpose of providing and improving our products and Services and promoting your website. This license also allows us to make any publicly-posted Content available to select third parties so that these third parties can analyze and distribute (but not publicly display) the Content through their services.

Removing Content: If you delete Content, we’ll use reasonable efforts to remove it from public view (or in the case of a private website/Group, from view by the authorized visitors) on AutoGive, but you acknowledge that cached versions of the Content or references to the Content may not be immediately unavailable.

Prohibited Uses: Your Content and conduct must not violate these Terms.

Attribution: We may display attribution text or links in your website/Group footer or toolbar, noting that your website/Group is powered by AutoGive.

DMCA: If you believe any content hosted by AutoGive may violate the Digital Millennium Copyright Act, please review the following information: https://www.autogive.com/terms#dmca

b. Stripe

Stripe is a service that facilitates payments to AutoGive websites/Groups.

You agree to follow any other steps we require to help verify your identity as part of the Stripe enrollment or payment process, including via email or SMS text message confirmations.

Stripe may need to send you emails or text messages (SMS) regarding multi-factor authentication codes (2FA), important notifications about your account's activity, notable updates (like changes to Terms of Service or Privacy Policy), or to let you know about legal inquiries or complaints they receive about the ways you use the Services so you can make informed choices in response.

You agree to all standard SMS messaging rates charged by your mobile carrier.

Enrolling in AutoGive’s Services will create a Stripe account for you if you don’t already have one. Stripe is designed to allow you to save certain information, such as billing and payment information, for future payments. You must keep your Stripe information accurate and up-to-date. You can update your Stripe information by accessing the Settings area of your AutoGive account.

You should only use AutoGive and Stripe on a device that you own or control and it is your responsibility to prevent others from accessing your device’s web browser to help prevent unauthorized purchases through Stripe.

Even when your saved Stripe information is used for a transaction, the transaction remains only between you and the merchant - in this case the party who is receiving the money collected.

Requesting the deletion of your Stripe information will not cancel any transactions you have already made or terminate any subscriptions you have already enrolled in. To cancel a transaction or terminate a subscription, please visit the Settings area of your AutoGive account.

Your responsibilities: If you are the owner/Organizer, you have control over your website/Group, and with great power comes great responsibility. We’re not involved in your relationships or transactions with any Group Member or potential Member, and you’re solely responsible for all of your activities. Among other things, this means that you:

• may only use our Services for legitimate transactions with your Group Members.
• must comply with all applicable laws (such as those relating to automatic renewal or providing consumer disclosures) and agree not to engage in unfair, deceptive, or abusive acts or practices.
• are responsible for all products and services you provide, including delivery, support, refunds, returns, providing any appropriate warnings, and ensuring all information you provide is accurate, complete, and current.
• must accurately communicate product and transaction details, set expectations appropriately, and fulfill all commitments you've made.
• are responsible for payment of all applicable Taxes relating to your eCommerce activities and your use of our Services. You must collect, report, and/or pay the correct amounts to the appropriate authorities if applicable, and if needed, tell your customers about any Taxes they may be required to pay and issue appropriate invoices.
• are responsible for acquiring appropriate consent to process customer transactions, giving customers confirmation or receipts for each charge, verifying customers’ identities, and determining a customer’s eligibility and authority to complete transactions.
• must provide contact information so customers can contact you with questions or complaints.
• must maintain fair and legally compliant return, refund, cancellation, and adjustment policies and clearly explain how customers can request a refund.
• are responsible for all questions, complaints, disputes (including chargebacks), refunds, reversals, or fines that arise from your use of our Services.
• are responsible for investigating any transaction you believe may be erroneous, suspicious, or prohibited by law, or otherwise pose unacceptable compliance risks to us or you and, if appropriate, obtaining adequate information and assurances from your customer before fulfilling or completing the transaction.
• are solely responsible for ensuring that your transactions with customers comply with applicable export, import, and sanctions laws and regulations, including obtaining any required licenses or other authorizations or making required filings.
• must comply with Payment Card Industry Data Security Standard (PCI DSS) if applicable to you.
• must promptly notify us if you receive any inquiry or action from a government or regulatory agency (such as the Federal Trade Commission, a state Attorney General, or similar regulatory agencies in the country where you reside) that’s related to your use of our Services.

Prohibited Uses: You may not use our Services for any unlawful purposes; in furtherance of illegal activities; or in a manner that is unfair, deceptive, exposes us or customers to unreasonable risks, or does not disclose important terms of a transaction in advance. Among other things, this means that:

• Our Services cannot be used in, from, by, or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC).
• If you’re using our Services, you must observe and abide by these Terms at all times.

We may terminate your access to our Services or force refunds (where possible) to your subscribers and customers without notice to you if we determine (in our sole discretion) that your use violates the Agreement, or if a payment processor or regulatory authority requires it.

Fees and Negative Balances: By using our Services, you agree to pay us fees relating to the Services you use. You authorize Stripe to direct payments and allow for us to charge the necessary fees to cover the cost of the transaction and the $4.00 USD per month subscription fee per Group that you belong to. In doing so, Group Members ensure that the Recipient will receive 100% of the designated monthly gift amount. Please note that we have no obligation to reimburse or refund these transaction-based fees when you issue refunds to your subscribers or customers.

If you have a negative account balance (for example because of fraud, chargebacks, or other operational issues) or we’re obligated to pay or collect any fees relating to your activities or your use of our Services, you’re responsible for those losses and fees, and we may collect payment for those losses and fees.

Tax Calculations: While most personal financial gifts in the United States are not considered to be taxable income, we always recommend that you consult with a Certified Public Account (CPA) in the location where you live.

Doing so will also help ensure that the Recipient understands if any financial support received through our Services may impact any other financial aid they may receive both now and in the future.

If you are promising goods or services in exchange for financial support, then you are solely responsible for paying all associated Sales Taxes relating to your activity.

AutoGive is NOT an eCommerce platform and does not provide for the ability to either charge for Sales Tax or pay any Sales Tax of any kind.

If we’re obligated to pay or collect Taxes on your ecommerce activities or your use of our Services, you’re responsible for these Taxes, and we may collect payment for them from you.

Third-Party Services: By using our Services, you will use third-party services, like Stripe. For example, all payments functionality requires a Stripe account to manage payments, and when you use Stripe, you agree to their terms and policies. Please note that third-party services may also charge you fees to use or access their services, as Stripe does for Payments. We’re not involved in these relationships, but may facilitate transactions or communication. For example, we may, on your behalf, receive notices or forms relating to your Stripe account.

More on Stripe Payments Specifically: As part of Stripe Payments, we may use certain third parties to fulfill our obligations to you, including integrating with payment processing third parties. You may be subject to the terms and conditions of those third parties, and using Stripe Payments means you agree to comply with those terms and conditions. In particular, you cannot use Stipe Payments to enable any person (including you) to benefit from restricted businesses or activities. If we use another third party to fulfill these services, you authorize us to share your payment method information with an alternative third-party payment processor that is or will be integrated into Stripe Payments.

We may refuse, condition, or suspend any transaction or account (including your use of Stripe Payments) if we believe you have violated the Agreement or that your activities or transactions expose you, us, or others to unacceptable risks, as determined by us in our sole discretion.

You authorize us to share data relating to Stripe Payments with the applicable payment processing third party for their use in accordance with their privacy policy. Please refer to our privacy policy for details on how we otherwise collect, use, and disclose data made available to us as part of Stripe Payments.

9. Intellectual Property

The Agreement doesn’t transfer any AutoGive or third-party intellectual property to you, and all right, title, and interest in and to such property remains (as between AutoGive and you) solely with AutoGive. AutoGive, Stripe, Stripe Payments, along with all other 3rd parties required for the operation, maintenance and performance of our Services, and all other trademarks, service marks, graphics, and logos used in connection with our websites or Services are trademarks or registered trademarks of AutoGive (or AutoGive’s licensors). Other trademarks, service marks, graphics, and logos used in connection with our Services may be the trademarks of other third parties. Using our Services doesn’t grant you any right or license to reproduce or otherwise use any AutoGive or third-party trademarks.

10. Third-Party Services

While using the Services, you will use products, software, embeds, or applications provided or manufactured by a third party or yourself (“Third-Party Services”).

If you use any Third-Party Services, you understand that:

• Third-Party Services aren't vetted, endorsed, or controlled by AutoGive.
• Any use of a Third-Party Service is at your own risk, and we won’t be responsible or liable to anyone for Third-Party Services.
• Your use is solely between you and the respective third party (“Third Party”) and is governed by the Third Party’s terms and policies.
• Some Third-Party Services may request or require access to your data — or to your visitors’ or customers’ data — through things like pixels or cookies. If you use the Third-Party Service or grant them access, the data will be handled in accordance with the Third Party’s privacy policy and practices, which you should carefully review before you use any Third-Party Services. Third-Party Services may not work appropriately with our Services and we may not be able to provide support for issues caused by any Third-Party Services.
• If you have questions or concerns about how a Third-Party Service operates or need support, contact the Third Party directly.

In rare cases we may at our discretion, suspend, disable, or remove Third-Party Services from your account, Group or website.

11. Changes

We may modify the Terms from time to time, for example, to reflect changes to our Services (e.g., adding new features or benefits to our Services or retiring certain features of certain Services) or for legal, regulatory, or security reasons. If we do this, we’ll provide notice of the changes by posting the amended Terms and updating the “Last Updated” date or, if the changes, in our sole discretion, are material, we may notify you through our Services or other communications. Any changes will apply on a going-forward basis, and, unless we say otherwise, the amended Terms will be effective immediately. By continuing to use our Services after we’ve notified you, you agree to be bound by the new Terms. You have the right to object to any changes at any time by ceasing your use of our Services and may cancel any subscription you have.

12. Termination

We may terminate your access to all or any part of our Services at any time, with or without cause or notice, effective immediately, including if we believe, in our sole discretion, that you have violated this Agreement, any service guidelines, or other applicable terms. We have the right (though not the obligation) to (i) reclaim your username or website/Group’s URL due to prolonged inactivity, (ii) refuse or remove any content that, in our reasonable opinion, violates any part of this Agreement or any AutoGive policy, or is in any way harmful or objectionable, (iii) ask you to make adjustments, restrict the resources your website/Group uses, or terminate your access to the Services, if we believe your website/Group’s storage or bandwidth usage burdens our systems, or (iv) terminate or deny access to and use of any of our Services to any individual or entity for any reason. We will have no obligation to provide a refund of any fees previously paid.

You can stop using our Services at any time, or, you can cancel at any time, subject to the Fees, Payment, and Renewal section of these Terms.

13. Disclaimers

Our Services are provided “as is.” AutoGive and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, to the maximum extent allowed by applicable law, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither AutoGive, nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.

14. Jurisdiction and Applicable Law

Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions and the application of the United Nations Convention of Contracts for the International Sale of Goods, and the proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the state and federal courts located in San Diego County, California, U.S.A. Nothing in this Agreement affects your rights as a consumer to rely on mandatory provisions in your country of residence.

15. Dispute Resolution

This section sets forth the ways in which you and AutoGive agree to resolve disputes. Before filing a claim against AutoGive, you agree to try to work it out informally with us first. If we cannot resolve the dispute informally, all formal disputes must be resolved through arbitration as set forth in this section, unless you opt out of arbitration within 30 days of accepting this Agreement. Finally, whether resolved through arbitration or in court, claims can only be brought individually, and not as part of a class action.

16.1. Applicability. This Section 16 shall only apply to: (a) US Users; (b) Non-US Users bringing a claim against AutoGive in the US.

16.2. Informal Resolution. Before filing a claim against AutoGive, you agree to try to resolve the dispute by first emailing [EMAIL] with a description of your claim and proof of your relationship with AutoGive. We’ll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within sixty (60) days of our receipt of your first email, you or AutoGive may then bring a formal proceeding.

16.3. Arbitration Agreement.

16.3.1. Unless you opt out during the Opt-Out Period in accordance with Section 16.4, you and AutoGive agree to resolve any claims, disputes and matters arising out of or in connection with this Agreement (including without limitation its existence, formation, operation and termination) and/or the Services (including without limitation non-contractual disputes and matters) through final and binding arbitration and you and AutoGive expressly waive the right to formal court proceedings (including without limitation trial by jury), except as set forth in this Section. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. There is no judge or jury in arbitration, only an experienced, independent third party that will act as the arbitrator, and court review of an arbitration award is limited.

16.3.2. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator further has the right to impose sanctions, in accordance with the Arbitration Provider Rules (as defined below), including for: (a) any frivolous claims or submissions the arbitrator determines have not been filed in good faith; or (b) a party’s failure to comply with this Section 16. For avoidance of doubt, the right to impose sanctions includes the right to shift arbitration fees if permitted by the Arbitration Provider Rules.

16.3.3. Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted and the factual allegations on which those claims are based, and must include proof that the claimant is party to these Terms. The arbitrator may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11 and any similar standards in other jurisdictions), including for any claim filed on behalf of a claimant who is not a party to these Terms.

16.4. Arbitration Opt Out. You can decline this agreement to arbitrate by emailing us at [EMAIL] within thirty (30) days of the date that you first agree to this Agreement (“Opt-Out Period”). Your email must be sent from the email address you use for your Account, and must include your full name, residential address and a clear statement that you want to opt out of arbitration. If you opt out of arbitration pursuant to this Section 16.4, then Sections 16.3, 16.5, 16.6 and 16.7 of these Terms do not apply to you. This opt-out doesn’t affect any other sections of the Terms, including without limitation Sections 16.9 (Time for Filing), 16.10 (No Class Actions) and 15 (Jurisdiction and Applicable Law). If you have any questions about this process, please contact us.    

16.5. Arbitration Time for Filing. Any arbitration must be commenced by filing a demand for arbitration within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

16.6. Arbitration Procedures. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and in each case resolved before a single arbitrator. “Arbitration Provider” shall mean NAM. If the applicable Arbitration Provider is not available to arbitrate, the parties will mutually agree on an alternative arbitration provider. Except as modified by this Section 16, the applicable Arbitration Provider will administer the arbitration in accordance with its dispute resolution rules and procedures in effect at the time any demand for arbitration is filed (collectively, “Arbitration Provider Rules”), including without limitation those rules and procedures relating to mass arbitration filings, but excluding any rules or procedures governing or permitting class or representative actions. Each party is responsible for its own attorneys’ fees, except to the extent otherwise provided by the Arbitration Provider Rules, the arbitrator and/or applicable law. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys’ fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. “Arbitrator” as used in this Section 16 shall be understood to include the Arbitration Provider.

16.6.1. You and AutoGive agree that: (a) this Agreement affects interstate commerce, so the US Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of this Section 16 (despite Section 15 above); and (b) any arbitration hearings shall occur at a location to be agreed upon in San Diego, California, be administered by NAM in English, and be settled by one (1) commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of NAM arbitrators in accordance with the NAM Rules (as defined below).

16.6.4. Arbitration Provider Rules. Without limiting the generality of the foregoing: the applicable Arbitration Provider Rules for NAM include NAM’s Comprehensive Dispute Resolution Rules and Procedures and the Mass Filing Dispute Resolution Rules and Procedures (“NAM Rules”). The NAM Rules are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept. at [email protected].

16.6.5. No Class or Consolidated Arbitration Absent Written Consent. Except to the extent AutoGive in our sole discretion consents in writing, AutoGive does not agree or consent under any circumstances to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims.

16.6.6. Severability of Claims. If there is a final judicial determination that precludes enforcement of this Section 16’s limitations as to a particular claim, remedy, or request for relief, then such claim, remedy, or relief (and only such claim, remedy, or relief) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of any remaining claims, remedies, or relief not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies. This Section 16.6.6 does not prevent you or AutoGive from participating in a class-wide settlement of claims.

16.7. Arbitration Fees. The Arbitration Provider Rules will govern payment of all arbitration fees. We won’t seek our attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. The parties agree that the Arbitration Provider has discretion where it deems appropriate to reduce the amount or modify the timing of any administrative or arbitration fees due under the applicable Arbitration Provider Rules, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good faith challenge by either party to the fees imposed by the Arbitration Provider does not constitute a default, waiver, or breach of this Section 16 while such challenge remains pending before an arbitrator and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

16.8. Exceptions To Arbitration Agreement. Notwithstanding anything in this Agreement, either you or AutoGive may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement or misappropriation (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.

16.8.1. Either you or AutoGive may assert claims, if they qualify, in small claims court in New York, New York or any US county where you reside or work.

16.9. Time For Filing. Any claim not subject to arbitration must be commenced within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

16.10. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations aren't allowed, except to the extent AutoGive in our sole discretion consents in writing pursuant to Section 16.6.5.

16. Limitation of Liability

In no event will AutoGive, or its suppliers, partners, or licensors, be liable (including for any third-party products or services purchased or used through our Services) with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed $50 or the fees paid by you to AutoGive under the Agreement during the twelve (12) month period prior to the cause of action, whichever is greater. AutoGive shall have no liability for any failure or delay due to matters beyond its reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

17. Indemnification

You agree to indemnify and hold harmless AutoGive, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement or any agreement with a provider of third-party services used in connection with the Services, Content that you post, and any ecommerce activities conducted through your or another user’s website.

18. Translation

These Terms were originally written in English (US). We may translate these terms into other languages, and in the event of a conflict between a translated version of these Terms and the English version, the English version will control.

19. Miscellaneous

The Agreement (together with any other terms we provide that apply to any specific Service) constitutes the entire agreement between AutoGive and you concerning our Services. If any part of the Agreement is unlawful, void, or unenforceable, that part is severable from the Agreement, and does not affect the validity or enforceability of the rest of the Agreement. A waiver by either party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

AutoGive may assign its rights under the Agreement without condition. You may only assign your rights under the Agreement with our prior written consent.