Small Kindness – Small Business Terms of Service
Last Updated: April 15, 2022
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION AND A WAIVER OF CLASS ACTION REMEDIES. PLEASE REVIEW THESE TERMS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS.
These Small Business Terms of Service (these “Terms”) form a binding legal agreement between Small Kindness Co., a Delaware corporation, and you as a small business signing up to make gift certificates or cards (“Gift Cards”) available through the Small Kindness online platform, website, mobile app, and/or related offerings and services (collectively, the “Platform”).
Please review these Terms carefully. By signing up for the Platform, you agree to be bound by these Terms. We may update these Terms from time to time in our discretion. We will always keep the current version of these Terms posted on this website. By using the Platform after a new version of these Terms have been posted, you agree to the terms and conditions of such version of these Terms. If you do not agree to these Terms, you must immediately cease your use of the Platform as a small business.
SMALL BUSINESS RESPONSIBILITIES
As a small business user, you agree and acknowledge the following:
· You may be required to provide certain information (including personal information) to register your account as a small business on the Platform and to verify your eligibility to participate on the Platform and we may update the criteria for eligibility from time to time.
· You represent and warrant you qualify as a “small business” as that term is defined and used by the U.S. Small Business Administration, as may be amended from time to time.
· You are responsible for any reporting or other tax or regulatory obligations incurred by you regarding amounts received through the Platform.
· You are responsible for maintaining the security of your account and your login credentials, and you will be responsible for any actions taken using your account credentials.
· You are responsible for ensuring you provide complete and accurate information and keep such information up to date, and you are responsible for any liability or damages arising from false, fraudulent, or incomplete information. You may have the option to voluntarily identify your business as minority-owned, woman-owned, LGBTQ-owned, or similar statuses, and are fully responsible for the accuracy of any such representations you choose to make.
· Even though we may endeavor to provide you with reasonable records or receipts of Gift Card sales through the Platform, you are ultimately responsible for keeping your own records and making appropriate backups – we will not be responsible for any loss of data in our possession or control.
· You are responsible for your interactions with purchasers or holders of your Gift Cards, including without limitation as relates to honoring your Gift Cards and complying with all applicable laws and regulations regarding privacy, marketing and anti-spam, consumer protection, and gift cards (including any requirements and restrictions regarding expiration dates and redemption policies).
· You will provide, upon request, descriptions of your business and offerings, and samples of your logos and other branding elements (collectively, “Brand Content”) and hereby grant us a non-exclusive, worldwide, sublicensable, transferable, royalty-free license to reproduce, distribute, publish, modify, create derivative works of, and otherwise use the Brand Content to maintain your profile on the Platform and to promote your Gift Cards, and the Platform generally, for so long as you retain a Platform account.
SMALL BUSINESS INTERFACE
As part of the Platform, Small Kindness will make a small business web interface available to you where you can review information regarding Gift Cards purchased through the Platform, certain buyer information, redemption information, earnings, and other information provided from time to time. We provide this information as a convenience and do not guarantee the completeness or accuracy of any such information.
We will charge fixed and/or percentage platform fees on the sale of Gift Cards through the Platform, which fees will be posted on our website (for example, in the FAQs or a dedicated pricing page) and may be updated from time to time. These fees are deducted from the purchase price paid by users before the balance is paid to you.
When you establish a small business account on the Platform, you will be required to provide valid ACH or other requested payment account information in order for us to process payments to you for Gift Card purchases. We may impose a reasonable hold period on amounts paid through the Platform, for funding confirmation and anti-fraud purposes. Subject to any such hold period and our then-current recurring payment schedule, we will pay you in arrears on a rolling basis when your Gift Cards are purchased by Platform users. We will pay you the amounts actually received by the relevant purchaser, less our then-current Platform fees.
CONTENT; OWNERSHIP AND LICENSE
“Content” means all information, data, text, software, music, sound, photographs, graphics, video, messages, or other material or content that are displayed, used, or otherwise incorporated into the Platform.
All Content other than Your Content (as defined below) is owned by us or our third-party licensors and is protected by applicable copyright, trademark, and/or other intellectual property laws. Nothing contained on the Platform should be construed as granting any license or right to use any of the Content without our written permission. Subject to your continued compliance with these Terms, we hereby grant you a personal, non-exclusive, revocable, non-transferable and non-sublicensable license to access and use the Platform and Content for your personal use. Any use of the Content (including our names, logos, and trademarks) will inure to our benefit.
If you believe that any Content infringes your copyrights or that your intellectual property rights have been otherwise harmed, immediately notify our designated copyright agent by emailing email@example.com. Your notice must comply with the requirements of the DMCA by including the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Our goal is to follow DMCA safe harbor provisions with regard to infringement claims. In addition to those outlined above, we will follow notice and take down provisions when our copyright agent is notified that any Content is allegedly infringing material.
If you repeatedly infringe third party copyrights (e.g., by submitting Content without permission), whether proven or alleged, it is our policy to terminate your account on the Platform.
YOUR CONTENT; FEEDBACK
“Your Content” means any Content submitted to the Platform by you. By submitting any of Your Content, you: (i) represent and warrant that you have all right, title, and interest to do so; (ii) acknowledge that Your Content will not be treated as confidential, and may be publicly visible via the Platform; (iii) grant us and our affiliates a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free, and fully transferable and sublicensable license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of Your Content in any media and for any purpose whatsoever (including to operate, maintain, improve, and promote the Platform) without attribution or compensation; and (iv) irrevocably waive any claims of moral rights, privacy, publicity, or similar rights in any of Your Content.
If you provide feedback, suggestions, improvements, or requests for additional functionality (collectively, “Feedback”), you grant us an unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of such Feedback in any way we deem reasonable, without any attribution or accounting to you. This paragraph will survive any termination or expiration of these Terms or of your account on the Platform.
COMMUNITY STANDARDS; RESTRICTIONS
You represent, warrant, and agree that you will not: (i) remove any trademark or copyright notices contained in the Platform or Content; (ii) reproduce, modify, publish, distribute, transmit, disseminate, transfer, license, sell, lease, create derivative works based upon, or in any way commercially exploit the Platform or Content; (iii) use manual or automated means to trawl, mine, scrape, frame, or mirror the Platform or Content; (iv) disassemble, decompile or reverse engineer the Platform or Content; (v) attempt to hack, defeat, or overcome any encryption technology or security measures regarding the Platform or our other systems or those of any third party, or gain any unauthorized access to any systems or accounts; (vi) interfere with or disrupt the operation of the Platform or any other systems or otherwise interrupt or interfere with any other user’s use or enjoyment of the Platform; (vii) violate any applicable local, state, national or international law; (viii) post or transmit any Content that is unlawful, defamatory, abusive, harassing, threatening, obscene, fraudulent or otherwise inappropriate or infringes any intellectual property or privacy rights of any person; (ix) send unsolicited advertisements through the Platform; (x) use the Platform in a way that will adversely affect us or reflect negatively on us, any of our goodwill, name or reputation; (xi) provide any false or misleading information or any information that you do not have the right to provide; or (xii) otherwise violate any of our rules or policies.
The Platform may contain links to websites owned or operated by third parties. We do not control or endorse such websites and we are not responsible for their content, nor are we responsible for the accuracy or reliability of any information, data, opinions, advice, or statements contained within such websites. We have the right, but not the obligation, to review any Content provided by third parties (including other users of the Platform). We do not endorse such third-party Content, and any views expressed therein are the views of the applicable author and do not necessarily align with our views. We are not responsible for the accuracy or reliability of any Content provided by third parties and will not be liable for any causes of action (including slander, libel, or invasion of privacy) relating to such third-party Content. We have no control over, and are not responsible for, your interactions (online or in person) with any third parties, including other users of the Platform even if introduced via the Platform. You are solely responsible for your interactions with any third parties. If you have any disputes with other users of the Platform (whether consumers or businesses), we may (at our discretion) attempt to facilitate a resolution but are under no obligation to do so.
YOUR USE OF THE PLATFORM AND CONTENT IS AT YOUR SOLE RISK AND THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE PLATFORM AND CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THE CONTENT WILL BE COMPLETE OR ACCURATE. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY ELECTRONIC NETWORK OR LINES, SERVERS, SOFTWARE, OR FAILURE OF TRANSMISSION AS A RESULT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE PLATFORM, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON'S COMPUTER RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE PLATFORM.
NEITHER WE, NOR THE PLATFORM OR CONTENT, PROVIDE LEGAL, TAX, FINANCIAL OR OTHER PROFESSIONAL ADVICE. YOU SHOULD CONSULT PROFESSIONAL ADVISORS ABOUT THE LEGAL, TAX, OR FINANCIAL CONSEQUENCES OF YOUR BUSINESS ACTIVITIES. WE CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE PLATFORM OR CONTENT. WE MAKE NO REPRESENTATION THAT THE PLATFORM, OR YOUR USE THEREOF, WILL COMPLY WITH ANY LAWS OR REGULATIONS APPLICABLE TO YOU IN YOUR JURISDICTION(S), REGARDING TAX TREATMENT OR OTHERWISE. IF YOU ACCESS THE PLATFORM FROM LOCATIONS OUTSIDE THE UNITED STATES, YOU DO SO AT YOUR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LOCAL LAWS.
UNDER NO CIRCUMSTANCES SHALL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE PLATFORM, CONTENT, OR FROM THE CONDUCT OF ANY USERS OF THE PLATFORM OR OTHER THIRD PARTIES. WE DO NOT ENDORSE ANY USERS OR OTHER THIRD PARTIES LISTED, REFERENCED, OR REGISTERED USING THE PLATFORM.
WE MAY PLACE A SUSPENSION, HOLD, OR FREEZE ON USER ACCOUNTS OR PAYMENTS IF WE BELIEVE IT IS REASONABLY NECESSARY IN ORDER TO COMPLY WITH THE LAW OR TO PROTECT OUR SYSTEMS OR INTERESTS OR THOSE OF OUR USERS OR THIRD PARTIES, INCLUDING IN CASES OF SUSPECTED FRAUD OR ILLEGAL ACTIVITY. WE WILL HAVE NO LIABILITY FOR ANY SUCH ACTIONS.
SOME STATES DO NOT ALLOW CERTAIN DISCLAIMERS OR LIMITATIONS ON WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR THE INABILITY TO USE THE PLATFORM, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE). TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE TO YOU FOR AN AGGREGATE AMOUNT EXCEEDING THE GREATER OF $100 USD OR THE SERVICE FEES WITHHELD BY US IN THE PAST THREE MONTHS. SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY FOR DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. YOUR SOLE REMEDY IF YOU ARE DISSATISFIED WITH THE PLATFORM IS TO DISCONTINUE YOUR USE THEREOF.
RELEASE AND INDEMNITY
You will release, defend, indemnify, and hold us, our past, present, and future affiliates, licensors, licensees, marketing partners, and suppliers, together with their respective officers, directors, employees, and agents, harmless from and against any damages, losses, claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from your use of the Platform, Your Content (including any content you post on your social media feeds and is consequently displayed on your Platform profile), your processing or failure to process any Gift Cards, or your violation of these Terms. We may opt to defend such claims at our sole discretion, in which case you will indemnify us for the costs of such defense.
We reserve the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) without notice. We may terminate or suspend your account at any time, for any reason, without liability to you. Your right to use the Platform will automatically terminate if you breach these Terms. You may cancel your account at any time by giving us at least 30 days’ prior written notice of cancellation (and we may, but will be under no obligation to, continue to offer your Gift Cards through the duration of such notice period). Termination will not relieve either party from any obligations incurred or arising prior to such termination, and those sections of these Terms which are by their nature intended to survive termination (including, without limitation, the disclaimers, limitation of liability, indemnity, and general clauses) shall so survive.
DISPUTE RESOLUTION; MANDATORY ARBITRATION; WAIVER OF JURY TRIAL AND CLASS ACTION
These Terms are governed by and will be construed in accordance with the laws of the State of Texas, without regard to the conflicts of laws provisions thereof.
THE PARTIES AGREE THAT ANY DISPUTES ARISING IN CONNECTION WITH THE PLATFORM OR THESE TERMS WILL BE EXCLUSIVELY RESOLVED IN BINDING ARBITRATION USING THE DISPUTE RESOLUTION PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN DALLAS COUNTY, TEXAS. NOTWITHSTANDING THE FOREGOING OBLIGATION TO ARBITRATE DISPUTES, EACH PARTY SHALL HAVE THE RIGHT TO PURSUE INJUNCTIVE OR OTHER EQUITABLE RELIEF AT ANY TIME, FROM ANY COURT OF COMPETENT JURISDICTION.
THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.
We will not be responsible or liable for any delays or failures to perform due to causes beyond our reasonable control, which may include natural disasters, terrorist attacks, criminal activity, failure of internet or communications networks, health emergencies including pandemics or similar serious outbreaks of disease, or other force majeure events.
We may from time to time offer you the chance to try certain “beta” or “evaluation” products, services, features, or functionality (“Beta Offerings”). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL BETA OFFERINGS ARE PROVIDED ON A COMPLETE “AS-IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, AND WE WILL HAVE NO LIABILITY IN CONNECTION WITH THE BETA OFFERINGS.
Some or all of the Platform’s features and services may be limited or unavailable to users who are not residents and/or citizens of the United States.
You may not assign these Terms or these rights and obligations without our prior written consent; any purported assignment in violation of these Terms will be null and void. If any provision of these Terms is determined to be void or unenforceable in whole or in part, the remaining provisions of these Terms shall not be affected thereby and shall remain in force and effect.
These Terms and any policies referenced herein constitute the entire agreement between the parties regarding the subject matter thereof and supersede any prior or contemporaneous agreements with regards to such subject matter. A party's failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
You must provide notice to us by contacting us as set forth below. We may provide notice to you by email or regular mail at the address listed in your account profile, or through messages displayed or sent via this website or the Platform.
For more information or for help in answering any questions, please contact us at firstname.lastname@example.org.