Terms of Use - Boomerang Giving

Last Updated: March 10, 2016

Welcome to Boomerang Giving and our Terms of Use (these Terms. Please read these Terms carefully, including the mandatory arbitration provision in Section 20.

By clicking “Register Me!” or otherwise accessing or using the websites, mobile applications, and other online products or services (collectively, the “Services”) provided by Boomerang Giving ( “Boomerang Giving“,”we” “us” or “our“, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Services.

These Terms do not alter in any way the terms or conditions of any other agreement you may have with us regarding any other service or otherwise. In particular, these Terms do not affect any agreements with us that are applicable to non-profit or charitable organizations utilizing our Services to run fundraising campaigns. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.

Boomerang Giving reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Services or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Terms, you may not access or use the Services.

1. Privacy Policy

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

2. Eligibility

The Services are not targeted toward or intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one Boomerang Giving account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.

3. Registration, Account and Communication Preferences

In order to access and use certain areas or features of the Services, you will need to register for a Boomerang Giving account. By creating an account, you agree to (a) these Terms, (b) provide accurate, current and complete account information, (c) maintain and promptly update from time to time as necessary your account information, (d) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.

By creating a Boomerang Giving account, you also consent to receive electronic communications from Boomerang Giving (e.g., via email or by posting notices to the Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

4. Description of Services; Making Donations; Errors

The Services allow you to track the amount of senior discounts you receive in your everyday purchases and then allow you to make donations to the charitable organizations that enroll in our Services. You may elect to have your donations made automatically each time your senior discounts reach $20.00 or you may tailor each donation manually. Boomerang Giving uses a third party payment processor to facilitate your payment of the donations to the charitable organizations.

If you believe that an error related to your Boomerang Giving account has occurred (e.g., a miscalculation of your charitable donation), please contact us immediately at admin@boomeranggiving.org. You must contact us within 60 days of the date of the error. We may require reasonable documentation to support your claim.

5. License to Access and Use Our Services and Materials

Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Boomerang Giving logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 13), other files and the selection and arrangement thereof (collectively, “Materials”) are the proprietary property of Boomerang Giving or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.

You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Services and Materials. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Materials, (b) distribute, publicly perform or publicly display any Materials, (c) modify or otherwise make any derivative uses of the Services or Materials, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Materials, except as expressly permitted by us, and (f) use the Services or Materials other than for their intended purposes. Any use of the Services or Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Boomerang Giving or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.

Notwithstanding anything to the contrary in these Terms, the Services and Materials may include software components provided by Boomerang Giving or a third party that are subject to separate license terms, in which case those license terms will govern such software components.

6. Trademarks

“BOOMERANG GIVING,” the Boomerang Giving logo and any other Boomerang Giving service names, logos or slogans that may appear on the Services are trademarks of Boomerang Giving and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Boomerang Giving” or any other name, trademark or service name of Boomerang Giving without our prior written permission. In addition, the look and feel of the Services and the Service, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Boomerang Giving and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks and company names or logos mentioned on the Services or in the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Boomerang Giving.

If you believe that anything on the Products or Services infringes upon any trademarks which you own or control, you may file a notification of such infringement with our designated agent as set forth in Section 6. A proper notification should contain the same element required for copyright complaints (please see 17 U.S.C. § 512(c)(3)).

7. Hyperlinks

You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Services for noncommercial purposes, provided that such link does not portray Boomerang Giving, the Services or the Service in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Boomerang Giving logo or other proprietary graphic of Boomerang Giving to link to the Services without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Boomerang Giving trademark, logo or other proprietary information, including the images found on the Services or through the Service, the content of any text or the layout or design of any page, or form contained on a page, on the Services without our express written consent.
Boomerang Giving makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Services or of websites linking to the Services. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.

8. Third Party Content

We may display content, advertisements and promotions from third parties through the Services or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Boomerang Giving is not responsible or liable in any manner for such interactions or Third Party Content.

9. User Conduct

You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services and/or Service. You agree that you will abide by these Terms and will not:

Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s account without authorization from such user and Boomerang Giving;
Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Materials, area or code of the Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access;
Develop any third party applications that interact with User Content or the Services without our prior written consent;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; or
Use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

10. User Content

The Services may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, project campaign descriptions, charitable purpose descriptions, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Services or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services.

By using the interactive features and areas of the Services, you further agree not to create, post, share or store any of the following User Content that:

is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
impersonates, or misrepresents your affiliation with, any person or entity;
contains any unsolicited promotions, political campaigning, advertising or solicitations;
contains any private or personal information of a third party without such third party’s consent;
contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Services, or that may expose Boomerang Giving or others to any harm or liability of any type.

We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.

11. Feedback

Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Boomerang Giving, the Services or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Boomerang Giving. Boomerang Giving shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

12. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Boomerang Giving, and our respective past, present and future employees, officers, directors, contractors, consultants, equity-holders, suppliers, vendors, service providers, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Boomerang Giving Parties”), from all claims of any kind, whether in tort, contract or otherwise (collectively, “Claims“), including damages to property or personal injury, that arise from or relate to:

your use or misuse of the Services and Materials;
any User Content you create, post, share or store on or through the Services or our pages or feeds on third party social media platforms;
any Feedback you provide;
your violation of these Terms;
your violation of the rights of another; and
any third party’s use or misuse of the Services provided to you.

The indemnity obligation includes paying for Boomerang Giving’s attorneys’ fees and other costs of investigating and defending Claims, and the costs of enforcing the indemnity obligation.
You agree to promptly notify Boomerang Giving if you become aware of any third party Claim against Boomerang Giving or the Boomerang Giving Parties and cooperate with Boomerang Giving Parties in defending all Claims. You further agree that the Boomerang Giving Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Boomerang Giving.

13. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT THE BOOMERANG GIVING SERVICES AND MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE WE ATTEMPT TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES AND MATERIALS SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THEY OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BOOMERANG GIVING OR ANY OF THE OTHER BOOMERANG GIVING PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR MATERIALS OR OTHERWISE RELATED TO THESE TERMS, (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM BOOMERANG GIVING, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BOOMERANG GIVING’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF BOOMERANG GIVING OR THE BOOMERANG GIVING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BOOMERANG GIVING AND THE BOOMERANG GIVING PARTIES (JOINTLY) ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ANY COMPENSATION YOU PAY TO US FOR ACCESS TO OR USE OF THE SERVICES.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

15. Modifications to the Services and the Service

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) or the provision of the Service at any time and without liability therefor.
Dispute Resolution; Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BOOMERANG GIVING AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

20.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 12 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Boomerang Giving agree (a) to waive your and Boomerang Giving’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, Materials or the Service, resolved in a court, and (b) to waive your and Boomerang Giving’s respective rights to a jury trial. Instead, you and Boomerang Giving agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).

20.2. No Class Arbitrations, Class Actions or Representative Actions
You and Boomerang Giving agree that any Dispute arising out of or related to these Terms or the Services, Materials or the Service is personal to you and Boomerang Giving and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Boomerang Giving agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Boomerang Giving agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

20.3. Federal Arbitration Act
You and Boomerang Giving agree that these Terms affect interstate commerce and that the enforceability of this Section 20 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

20.4. Notice; Informal Dispute Resolution
You and Boomerang Giving agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within 30 days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Boomerang Giving shall be sent to legal@boomeranggiving.org. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Boomerang Giving account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Boomerang Giving cannot agree how to resolve the Dispute within 30 days after the date notice is received by the applicable party, then either you or Boomerang Giving may, as appropriate and in accordance with this Section 20, commence an arbitration proceeding or, to the extent specifically provided for in Section 20.1, file a claim in court.

20.5. Process
Except for Disputes arising out of or related to a violation of Section 12 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Boomerang Giving agree that any Dispute must be commenced or filed by you or Boomerang Giving within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Boomerang Giving will no longer have the right to assert such claim regarding the Dispute). You and Boomerang Giving agree that (a) any arbitration will occur in King County, Washington, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Washington and the United States, respectively, sitting in King County, Washington, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.

20.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

20.7. Rules of JAMS
The Streamlined Arbitration Rules and Procedures (“Rules“) of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the Rules of JAMS, or (b) waive your opportunity to read the Rules of JAMS and any claim that the Rules of JAMS are unfair or should not apply for any reason.

20.8. Severability
If any term, clause or provision of this Section 20 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 20 will remain valid and enforceable. Further, the waivers set forth in Section 20.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

20.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 20 by writing to: legal@boomeranggiving.org. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 21.

17. Governing Law and Venue

These Terms, your access to and use of the Services and your use of the Service shall be governed by and construed and enforced in accordance with the laws of the State Washington, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Washington and the United States, respectively, sitting in King County, Washington.

18. Termination

Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services and to use the Service, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

19. Severability

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

20. Survival

The following sections will survive the expiration or termination of these Terms and the termination of your Boomerang Giving account: all defined terms and Sections 1, 2, 3, 4, 5(first paragraph only), 6, 7, 8 (second paragraph only), 9 through 23.

21. Questions

If you have any questions regarding these Terms, please contact us at admin@boomeranggiving.org.