Terms of Service

Terms and Conditions (“Terms”) (proposed revisions, 26 Jul 2024)

Terms are entered into by Cool Effect Inc. (“we”, “us” or “our”) and you. Reference to “you” or “your” in these Terms means the entity or individual that has consented to these Terms of Service by any binding method of acceptance of these Terms. By accessing or using the Website you agree to be bound by these Terms. If you disagree with any part of the Terms then you may not access the Website.

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN COOL EFFECT INC. (“WE”, “US” OR “OUR”) AND YOU. “You” or “your” in these Terms means the entity or individual that has consented to these Terms of Service by any binding method of acceptance of these Terms. We and you are also collectively referred to in these Terms as the “Parties.” BY ACCESSING OR USING OUR WEBSITE YOU AGREE TO BE BOUND BY THESE TERMS.

Digital Properties Definition

The Cool Effect Digital Properties (“Digital Properties”) refer to the Cool Effect website and any associated online or downloadable Cool Effect sites, applications, or contributions or transactions effected through the Digital Properties. Termination

Cool Effect reserves the right, for any reason whatsoever and without prior notice or liability, to terminate or suspend access to our Digital Properties immediately.

All provisions of the Terms which by their nature should survive termination shall survive any termination of your access rights to the Cool Effect Digital Properties.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST GOODWILL, LOST PROFITS, LOST BUSINESS, OR OTHER INDIRECT ECONOMIC DAMAGES, AND FURTHER INCLUDING INJURY TO PROPERTY, WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY), OR OTHER LEGAL THEORY, AS A RESULT OF A BREACH OF ANY WARRANTY OR ANY OTHER TERM OF THIS AGREEMENT, AND REGARDLESS OF WHETHER A PARTY WAS ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NO SUIT MAY BE BROUGHT AGAINST EITHER PARTY FOR ANY CONTRIBUTION OR TRANSACTION EFFECTED THROUGH THE DIGITAL PROPERTIES UNLESS THE SUIT IS BROUGHT WITHIN TWO YEARS AFTER THE TRANSACTION.

Trademarks

All Cool Effect trade marks (whether registered or unregistered) and graphics, logos, designs, page headers and button icons are the intellectual property rights of Cool Effect and neither they nor any confusingly similar versions may be used by you.

Minimum Age

By agreeing to these Terms, you represent that you are at least 13 years of age.

Privacy Policy

Cool Effect will protect your personal information in accordance with our Privacy Policy. We have updated this policy to take into account the new requirements of the General Data Protection Regulation (“GDPR”) which means if you are a resident of the EU and your donor records reflect that address, you may be entitled to certain additional protections in accordance with GDPR.

Contributions and Refunds

Any gift or contribution given to us or effected through the Digital Properties, is a voluntary and irrevocable transfer of assets from a person or an organization to us, motivated by charitable intent. You agree that such gifts or contributions are made on an unrestricted basis, notwithstanding any other provision of these Terms, and any such gift or or contribution is not subject to exchange of consideration or other contractual duties between you and us. Cool Effect does not offer refunds.

Subscriptions

If you sign up for a subscription, every month Cool Effect will bill you for the contribution amount stated at the time of the sign-up, using the payment method specified by you. Subscriptions begin as soon as you have successfully completed the sign-up process, including payment confirmation. Subscriptions renew automatically, on a monthly basis, unless you cancel the subscription. We may change the subscription contribution amount upon prior notice to you. You may cancel subscriptions at any time by contacting Customer Support.

Portfolios of Projects

Where you have subscribed to a portfolio of projects, Cool Effect reserves the right to change the projects in any portfolio at any time. If one project in a portfolio is sold out or becomes unavailable, Cool Effect reserves the right to eliminate or replace that project and contributions for that portfolio will be distributed to the remaining projects. In the event an entire portfolio is eliminated, any remaining contributions to that portfolio will be distributed to a different portfolio of projects of Cool Effect’s sole choosing.

Choice of Law and Forum

This Agreement, and any disputes arising out of this Agreement, shall be interpreted and construed in accordance with the laws of the State of California, without regard to conflict-of-law principles. Any dispute arising out of these Terms (whether contract, tort, or both) shall be submitted to a state or federal court sitting in the county of Marin or San Francisco, which will have exclusive jurisdiction over the dispute and to which jurisdiction the parties irrevocably submit.

Attorneys Fees

If either party institutes or participates in a legal or equitable proceeding against the other seeking to enforce these Terms, the nonprevailing party in the proceeding shall pay the prevailing party’s costs, expert, and professional fees, and attorneys’ fees, including costs and fees on appeal. This payment obligation of the nonprevailing party shall be deemed to accrue beginning on the date of commencement of such proceeding.

Arbitration Agreement

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THE TERMS SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

THIS ARBITRATION AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, THIS ARBITRATION AGREEMENT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

You agree that any dispute or claim relating in any way to (a) your access or use of the Digital Properties, (b) any transaction effected through the Digital Properties, (c) any gift or contribution to us, or (d) any aspect of your relationship with us, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.

Informal Resolution. You and we agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and we therefore agree that, before either you or we demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify us that you intend to initiate an informal dispute resolution conference, email blake@cooleffect.org, providing your name, telephone number, email address, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration.

Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration. If this notice is being sent to us, it must be sent by mail and email to [IDENTIFY COOL EFFECT RECIPIENT]. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available at https://www.adrservices.com/services/arbitration-rules. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Consumer Non-Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (1) involve the same or similar parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties. In all other circumstances, the fees set forth in ADR Services, Inc.’s General Fee Schedule shall apply. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s rules. If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.

Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties except as provided by ADR Services, Inc.’s Mass Consumer Non-Employment Arbitration rules. 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, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and us.

Waiver of Jury Trial. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and we are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

Waiver of Class or Consolidated Actions. YOU AND WE AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE PERSON OR ENTITY CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON OR ENTITY EXCEPT AS SET FORTH IN ADR SERVICES, INC.’S MASS CONSUMER NON-EMPLOYMENT ARBITRATION RULES.

Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor we can force the other to arbitrate as a result of this Agreement. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you currently use to access the Digital Services (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to blake@cooleffect.org. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.

Survival. This Arbitration Agreement will survive any termination of your relationship with us.

Litigation Class Action Waiver. To the extent allowed by applicable law, separate and apart from the Arbitration Agreement above, you agree that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because you opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and you agree not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you act or propose to act in a representative capacity (“Litigation Class Action Waiver”). You further agree that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of these Terms shall remain in full force and effect.

Changes

We reserve the right to make changes to these Terms at any time. By continuing to access or use our Website after those revisions become effective, you agree to be bound by the revised Terms.

Contact Us

If you have any questions about these Terms, please contact us at info@cooleffect.org.