Pinkaloo Terms of Service
Last Modified: February 1, 2022 (view previous version)
Summary of Changes to Terms of Service
This summary is designed to help you understand some of the key updates we’ve made to our Terms of Service, which incorporates our Privacy Policy. While both remain legal documents, we’ve done our best to make them easier to understand. We hope the summary below serves as a useful overview, but it does not cover any and all changes, so please ensure you read the new Terms of Service and Privacy Policy in full.
We further explained the charitable donation process we facilitate, describing the interactions between Pinkaloo, Donors, Subscribers, Foundations, and Charities.
We clarified that a User’s profile and other postings within Pinkaloo must comply with various content standards, and Pinkaloo’s rights and limitations of liability related to any such User contributions.
We added various dispute resolution procedures, including that binding arbitration will be used to resolve disputes with Pinkaloo.
We clarified that our services are not intended to be used by children under the age of 18.
For charities that choose to enroll in ACH grants, we updated the terms of how that works in alignment with our vendor Dwolla.
The updated Terms of Service is effective as of February 1, 2022. Your continued use of Pinkaloo from that day forward will be subject to the updated Terms of Service.
Welcome to Pinkaloo!
Welcome to the websites, online and mobile services of Pinkaloo Technologies, LLC (“Pinkaloo,” “we,” or “us”). We are excited to power your Modern Giving experience.
1. ACCEPTANCE OF THE TERMS OF SERVICE AGREEMENT
These terms of service are a contract between Pinkaloo and you and govern your access to and use of the services, websites, and applications offered by Pinkaloo (collectively the “Services”). This Agreement applies to all persons and entities who visit any of our websites and/or use the Services (“Users”).
By accessing or using the Services, you signify that you have read, understood, and agree to be bound by this Terms of Service agreement, including the Privacy Policy which is incorporated herein (“Agreement”). If you do not agree to any of these terms of this Agreement, do not access or use the Services.
In the event of a conflict or inconsistency between this Agreement and any Master Services Agreement (“MSA”) or other contract between Pinkaloo and a corporate entity or financial institution which is a subscriber to the Services (“Subscriber”), such MSA or other contract shall control and govern the rights and obligations as between those parties, but not as between you and us or between you and the applicable Subscriber.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER BELOW. IT REQUIRES THAT DISPUTES BE RESOLVED BY ARBITRATION, RATHER THAN CLASS ACTION LAWSUITS OR JURY TRIALS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). PLEASE SEE SECTION 15 FOR MORE INFORMATION.
2. CHANGES TO THE TERMS OF SERVICE
We may modify this Agreement (including the Privacy Policy and any other terms of service, as applicable) at any time by notifying you as provided in this Agreement. Your continued use of the Services after any such change and notice thereof constitutes your acceptance of the revised Agreement.
3. OPENING AND CLOSING A PINKALOO ACCOUNT
To create a Pinkaloo account, you must be at least 18 years old. We may receive personal information about you from Subscribers for purposes of allowing you to open a Pinkaloo account.
You may close your account and terminate your relationship with us without cost. Any incomplete transactions or transfers must be completed or canceled, if permitted. You may not close your account in certain cases, including to evade an investigation or if you have a pending transaction. No contribution to a giving account will be refunded.
4. THE CHARITABLE DONATION PROCESS
Pinkaloo’s Services enable organizations and individuals (“Donors”) to donate to non-profit organizations which are tax exempt as described in Section 501(c)(3) of the Internal Revenue Code and eligible to receive tax-deductible contributions in accordance with Section 170 of the Internal Revenue Code (“Charities”).
For Donors. Donors first deposit a non-refundable tax-deductible charitable contribution (“Funds”) from a bank account, debit card, or credit card into a giving account administered by a third-party foundation eligible to receive tax-deductible contributions in accordance with Section 170 of the Internal Revenue Code (“Foundation”). Each User will be assigned to a particular Foundation. Donors then request the Foundation to distribute their Funds to a specific Charity. Pinkaloo expects Foundations to distribute Funds to a User’s requested Charity within 30 days, but such distribution may occur up to three (3) months after the User’s request.
Under certain circumstances, such as a designated recipient failing to be eligible to receive tax-deductible contributions under the Internal Revenue Code, the Foundation will not distribute the Funds as requested by the Donor, in which case Pinkaloo or the Foundation will attempt to contact the Donor to provide such Donor the opportunity to re-designate the Funds to another Charity. Furthermore, if Funds remain undisbursed in a giving account at least eighteen months after being deposited therein, the Foundation shall disburse such Funds to a Charity chosen by the Foundation.
You acknowledge that Pinkaloo will not have access to, nor take possession of, any of the Funds deposited into giving accounts. You agree to read, be bound by, and follow all applicable policies of the Foundation that administers your giving account in relation to your use of the Services, which shall be accessible from your Pinkaloo account.
You can link or unlink a debit card, credit card, or a U.S. bank account at certain financial institutions to the giving account as a payment method. Donors may choose to allow a Subscriber to facilitate a payment on their behalf. Please keep your payment method information current.
For Foundations. Pinkaloo has partnered with Dwolla, Inc. which allows ACH / electronic transfer of funds from Foundations to the Donor’s designated Charity. To use the ACH / electronic transfer payment functionality of Pinkaloo’s Services, Foundations must open a "Dwolla Platform" account provided by Dwolla, Inc. and must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. Employee(s) of a Foundation using the Services to manage donations (“Foundation Administrators”) authorize Pinkaloo to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. Foundation Administrators understand that you will access and manage your Foundation’s Dwolla account through Pinkaloo’s Services, and Dwolla account notifications will be sent by Pinkaloo, not Dwolla. We will provide customer support for Foundation’s Dwolla account activity, and can be reached at www.pinkaloo.com, support@pinkaloo.com and/or (410) 929-6900.
For Charities. If you register to create an account to receive payments via our application, you expressly authorize Pinkaloo’s service provider, Dwolla, Inc. to originate credit transfers to your financial institution account. You must be at least 13 years old and obtain parental permission if under 18 to receive funds. You authorize Pinkaloo to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. Dwolla’s Privacy Policy is available here.
Bank account transfers. When you use your bank account as a method to pay or receive payment, you are allowing a transfer from your bank account. For these transactions, we will make electronic transfers from your bank account in the amount you authorize. You authorize us to try this transfer up to three (3) times if the initial transfer is rejected by your bank for any reason, as allowed by prevailing law. BEFORE MAKING A PAYMENT, YOU SHOULD CONFIRM THAT YOUR BANK ACCOUNT CONTAINS FUNDS SUFFICIENT TO COVER THE PAYMENT, IF FUNDED BY YOUR BANK ACCOUNT. THIS WILL HELP YOU AVOID OVERDRAFT OR OTHER FEES YOUR FINANCIAL INSTITUTION MAY CHARGE.
5. ACCESSING THE SERVICES
We reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of the Services.
To access the Services, you may be asked to provide certain registration details or other personal information. It is a condition of your use of the Services that all the information you provide is correct, current, and complete. You agree that all information you provide to register with the Services is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
6. ACCOUNT SECURITY
Keep confidential any credentials you use to access your Pinkaloo account and the Services. You must keep your email address and any other contact information current in your Pinkaloo account profile. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and not disclose it to any other person or entity. If you do disclose your login credentials to a third party or allow a third party to use your device’s authentication feature, you are authorizing that party to use the Services. You agree that we may rely on the authority of anyone who provides your login credentials or uses your device’s authentication feature to access the Services (an “Authorized User”). We will not be liable for and will not reimburse you for any losses that may occur as a result of the use of your login credentials or your device’s authentication feature by such Authorized Users. You agree to tell us immediately if someone you did not authorize learns your password or other login credentials or is able to use your device’s authentication feature or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. Except as otherwise provided by law, you will indemnify each of Pinkaloo and any Subscriber and hold it harmless for any loss or expense caused by any person who accesses your accounts or the Services using any password or device authentication feature as described in this Agreement.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
7. RESTRICTED ACTIVITIES
In connection with your use of your Pinkaloo account, the Services, or in the course of your interactions with us or third parties, you must not:
Breach this Agreement, the Privacy Policy, or any other agreement between you and us;
Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, fraud, unfair competition, anti-discrimination or false advertising);
Infringe our or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
Act in a manner that is defamatory, trade libelous, threatening or harassing;
Provide false, inaccurate or misleading information;
Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
Use the Services in a manner that results in or may result in complaints, disputes, or fees, fines, penalties or other liability or losses to Pinkaloo, other Users, Subscribers, third parties or you;
Use the Services in a manner that we, Visa, Mastercard, or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules, or for the purpose of earning rewards, perks, miles, or points with your credit card, debit card, or bank account;
Take any action that imposes an unreasonable or disproportionately large load on, interferes, disrupts, or attempts to interfere or disrupt our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf or the Services;
Facilitate any viruses, trojan horses, malware, worms or other computer programming routines that attempts to or may damage, disrupt, corrupt, misuse, detrimentally interfere with, surreptitiously intercept or expropriate, or gain unauthorized access to any system, data, information or the Services;
Use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our websites without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers;
Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers or service providers;
Harass or threaten our employees, agents, or other Users.
Actions We May Take if You Engage in Any Restricted Activities. If we believe that you’ve engaged in any of these activities, we may take a number of actions to protect ourselves, Subscribers, Users or other third parties at any time in our sole discretion. The actions we make take include, but are not limited to, the following:
Terminate this Agreement;
Refuse to provide or limit the Services to you in the future;
Limit your access to our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf;
Update inaccurate information you provided us; or
Take legal action against you.
If we terminate your use of the Services for any reason, we’ll provide you with notice of our actions, and any money you already deposited into a giving account may be forfeited to the relevant Foundation.
You are responsible for all claims, fees, fines, penalties and other liability incurred by us, any Subscriber, User, or third party caused by or arising out of your breach of this Agreement, and/or your use of the Services.
8. COURT ORDERS, REGULATORY REQUIREMENTS OR OTHER LEGAL PROCESS
If we are notified of a court order or other legal process affecting you, or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may be required to take certain actions, including without limitation placing a hold or limitation on your account. We will decide, in our sole discretion, which action is required of us. We do not have an obligation to contest or appeal any court order or legal process involving you or the Services.
9. INTELLECTUAL PROPERTY RIGHTS
The Services and all contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Pinkaloo, its licensors, or other providers of such material and are protected by United States, foreign and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
“Pinkaloo.com,” “Pinkaloo,” and all logos related to the Services are either trademarks or registered trademarks of Pinkaloo. You may not copy, imitate, modify or use them without our prior written consent. All page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Pinkaloo. You may not copy, imitate, modify or use them without our prior written consent. You may use HTML logos provided by us for the purpose of directing web traffic to the Pinkaloo website. You may not alter, modify or change these HTML logos in any way, use them in a manner that mischaracterizes Pinkaloo or the Services or display them in any manner that implies Pinkaloo’s sponsorship or endorsement. All right, title and interest in and to the Pinkaloo website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of Pinkaloo.
10. ADVERTISEMENTS
As part of the Services, we may include advertisements or content provided by Pinkaloo or a third party which may be targeted to you. The types and extent of advertising are subject to change. In consideration for Pinkaloo granting you access to and use of the Services, you agree that Pinkaloo and its third party providers and partners may engage in such advertising, and that such third parties are not owned or controlled by Pinkaloo. Pinkaloo assumes no responsibility for any such third party information, materials, products, sites or services, which you access at your own risk. This Agreement and Pinkaloo’s Privacy Policy does not apply to your use of such third party sites. You expressly release Pinkaloo from any and all liability arising from your access to or use of any such third party site.
11. USER CONTRIBUTIONS
The Services may contain message boards, personal profiles, forums, and other interactive features (collectively “Interactive Services”) that allow Users to post, submit, publish, display, or transmit to other Users or other persons (“post”) content or materials (collectively “User Contributions”) on or through the Services.
All User Contributions must comply with the Content Standards below. Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution in connection with the Services, you grant us and our affiliates, and each of their and our respective licensees, successors, and assigns, the right to use and otherwise disclose to third parties any such material for any purpose.
You agree that: you are responsible for any User Contributions you submit or contribute; you, not Pinkaloo, have full responsibility for such content, including its legality, accuracy, and appropriateness; and that Pinkaloo is not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other User or Subscriber.
Monitoring and Enforcement; Termination. We have the right to:
Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates this Agreement, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the safety of Users, Subscribers, the public, or could create liability for Pinkaloo.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services or Interactive Services.
Terminate or suspend your access to all or part of the Services or Interactive Services for any or no reason, including without limitation, any violation of this Agreement.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS PINKALOO FROM ANY CLAIMS RESULTING FROM ANY ACTION IT TAKES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER PINKALOO OR LAW ENFORCEMENT AUTHORITIES.
We do not review material before it is posted on the Pinkaloo website or in relation to the Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
Content Standards. These content standards apply to any and all User Contributions and use of the Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, foreign and international laws and regulations. Without limiting the foregoing, User Contributions must not:
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement and our Privacy Policy.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
Impersonate any person or misrepresent your identity or affiliation with any person or organization.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Reliance on Information Posted. The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Pinkaloo website or Services, or by anyone who may be informed of any of its contents.
All statements and/or opinions expressed through User Contributions are solely the opinions and the responsibility of the person or entity submitting the post, which does not reflect the opinion of Pinkaloo. We are not responsible, or liable to you or any third party, for the content or accuracy of any User Contributions.
Linking to the Website and Social Media Features. You may link to the Services, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.
The Services may provide certain social media features that enable you to: link from your own or certain third party websites to certain content; send emails or other communications with certain content, or links to certain content; or cause limited portions of content of the Services to be displayed or appear to be displayed on your own or certain third party websites. We may disable all or any social media features and any links at any time without notice in our discretion.
12. INDEMNIFICATION
You must indemnify Pinkaloo and any applicable Subscriber for actions related to your use of the Services. You agree to indemnify Pinkaloo and any applicable Subscriber for actions related to your use of the Services. You agree to defend, indemnify and hold Pinkaloo and any applicable Subscriber harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of the Services, your violation of any law or the rights of a third party and/or the actions or inactions of any third party to whom you grant permissions to use your Pinkaloo account or access our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, or any of the Services on your behalf.
13. LIMITATION OF LIABILITY
Pinkaloo’s liability is limited with respect to your use of the Services. In no event shall Pinkaloo or any Subscriber be liable for lost profits or any special, incidental or consequential damages (including without limitation damages for loss of data or loss of business) arising out of or in connection with our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, any of the Services, or this Agreement (however arising, including negligence), unless and to the extent prohibited by law.
Liability cap. Our liability and any Subscriber’s liability to you or any third parties in any circumstance is limited to the actual amount of direct damages. In addition, to the extent permitted by applicable law, neither Pinkaloo nor any Subscriber is liable, and you agree not to hold such party responsible, for any damages or losses (including, but not limited to, loss of money, goodwill, or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from: (1) your use of, or your inability to use, our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, or any of the Services; (2) delays or disruptions in our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf and any of the Services; (3) viruses or other malicious software obtained by accessing our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf or any of the Services or any website or service linked to our websites, software or any of the Services; (4) glitches, bugs, errors, or inaccuracies of any kind in our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf or any of the Services or in the information and graphics obtained from them; (5) the content, actions, or inactions of third parties; (6) a suspension or other action taken with respect to your use of the Services; or (7) your need to modify your practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this Agreement or our policies.
14. DISCLAIMER OF WARRANTY AND RELEASE
No warranty. The Services are provided “as-is” and without any representation or warranty, whether express, implied or statutory. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
We do not guarantee continuous, uninterrupted or secure access to any part of the Services, and operation of our websites, software, or systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf may be interfered with by numerous factors outside of our control. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
Please read this arbitration provision carefully to understand your rights. You acknowledge and agree that any claim that you may have in the future must be resolved through binding arbitration. You acknowledge and agree that you are waiving the right to a trial by jury. The rights that you would have if you went to court, such as discovery or the right to appeal, may be more limited or may not exist with binding arbitration.
You agree that you may only bring a claim in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You further agree that the arbitrator may not consolidate proceedings or claims or otherwise preside over any form of a representative or class proceeding.
Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, Pinkaloo, and/or any involved third party (including without limitation Subscribers, Foundations, and Charities) relating to this Agreement. This includes any and all Claims that relate in any way to your use of the Services, your attempted use of the Services, and any act or omission by Pinkaloo or any third party related to your use or attempted use of the Services.
You, Pinkaloo, or any involved third party may pursue a Claim. Pinkaloo agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Pinkaloo. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Pinkaloo both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Pinkaloo will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Pinkaloo, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including without limitation information or representations related to the Services and upon which you rely. You may send the written description Pinkaloo’s Chief Operating Officer, Daniel Gardner, at daniel@pinkaloo.com, or moderngiving@pinkaloo.com. Communication can also be addressed to: Pinkaloo Technologies, Inc., 301 W 29th St. Suite 2003, Baltimore, MD 21211.
You agree to negotiate with Pinkaloo in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Pinkaloo’s receipt of your written dispute, you agree to the dispute resolution provisions below.
Commencement of Arbitration. You and Pinkaloo agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside, or at another place mutually agreeable to the parties.
Any claims or disputes where the total amount sought is less than $10,000 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 or more, the right to a hearing will be determined by the arbitral forum’s rules. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
Arbitration Rules. The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here as of the date of this Agreement, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement. The arbitration will be conducted by a single neutral arbitrator.
Arbitration Fees. You may not have to pay any fees to arbitrate with Pinkaloo. The AAA’s Consumer Arbitration Rules provide that filing fees, hearing fees and arbitrator compensation are Pinkaloo’s responsibility. The parties shall each pay their own additional fees, costs, and expenses, including without limitation those for any attorneys, experts, documents, and witnesses.
Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Pinkaloo. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Pinkaloo.
Waiver of Jury Trial. YOU AND PINKALOO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pinkaloo are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Pinkaloo over whether to vacate or enforce an arbitration award, YOU AND PINKALOO WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 16.
Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Pinkaloo can force the other to arbitrate. To opt out, you must notify Pinkaloo in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name, address, and the email address used to set up your Pinkaloo account, and an unequivocal statement that you want to opt out of this arbitration agreement. You must either email the opt-out notice to moderngiving@pinkaloo.com, or mail your opt-out notice to this address: Pinkaloo Technologies, Inc., 301 W 29th St. Suite 2003, Baltimore, MD 21211.
Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Pinkaloo.
16. EXCLUSIVE VENUE
To the extent that this Agreement allows you or Pinkaloo to initiate litigation in a court, both you and Pinkaloo agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Agreement or the Services will be litigated exclusively in the United States District Court for the District of Maryland, Northern Division. If, however, that court would lack original jurisdiction over the litigation, then all such claims and disputes will be litigated exclusively in the State of Maryland Circuit Court for Baltimore City. You and Pinkaloo consent to the personal jurisdiction of both courts.
17. MISCELLANEOUS
Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent. We may transfer or assign this Agreement or any right or obligation under this Agreement at any time.
Governing law. You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in this Agreement, the laws of the State of Maryland, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Pinkaloo regarding your use of the Services.
Geographic limitations. We make no claims that the Services or any of its content is accessible, appropriate or legal outside of the United States. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Identity authentication. You authorize us, directly or through third parties, to make any inquiries we consider necessary to verify your identity. This may include:
asking you for further information, such as your date of birth, a social security or taxpayer identification number, your physical address and other information that will allow us to reasonably identify you;
requiring you to take steps to confirm ownership of your email address, phone number or financial instruments;
verifying your information against third party databases or through other sources; for the avoidance of any doubt we are not authorized to and will not request credit information or order a credit report from a credit reporting agency; or
requiring you to provide your driver’s license or other identifying documents.
Anti-money laundering and counter-terrorism financing laws may require that we verify the required identifying information if you use certain Services. We reserve the right to close, suspend, or limit access to the Services in the event that, after reasonable enquiries, we are unable to obtain information about you required to verify your identity.
Privacy. Protecting your privacy is very important to us. Please review our Privacy Policy to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your information.
Mobile third party providers. The Services work on an application linked to a particular device and operating system, such as Apple’s iOS operating system. Your use of the Services may be subject to separate agreements you may enter into with your mobile device operating system provider (e.g., Apple, Google or Microsoft), your mobile device manufacturer (e.g., Apple, Samsung), your mobile service carrier (e.g., AT&T or Verizon), and other parties involved in providing your mobile device service, which we collectively refer to as “Covered Third Parties.”
You agree to comply with all applicable third party terms of agreement when using the Services. We are not a party to those agreements and we have no responsibility for the products and services provided by third parties. You acknowledge and agree that this Agreement is between you and Pinkaloo, not with any Covered Third Party. You acknowledge and agree that we are solely responsible for the Services and for providing maintenance and support services for the Services.
Covered Third Parties have no warranty obligations whatsoever with respect to the Services and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Services to conform to any warranty provided by us, if any, will be our sole responsibility.
We, not any Covered Third Parties, are responsible for addressing any claims relating to the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection, privacy, or similar legislation; and (iv) intellectual property claims.
18. HOW TO CONTACT US
Regardless of your location, any questions, comments and requests regarding this Agreement are welcome and should be addressed to our Chief Operating Officer, Daniel Gardner, at daniel@pinkaloo.com or moderngiving@pinkaloo.com. Communication can also be addressed to:
Pinkaloo Technologies, Inc.
301 W 29th St. Suite 2003
Baltimore, MD 21211