Terms and Conditions
Contents
Section 1: Overview, Terms & Conditions
Section 2: Giving Wallet & DAF Information
A. What is a Giving Wallet and a DAF?
B. Spotlight DAF Requirements
1. Eligibility
2. Fees
3. Minimum Contributions
4. Account Enrollment
5. Account Access
6. Account Identification
7. Commercial DAF Accounts
Section 3: Policies Related to Contributions
A. Organizations Receiving Donations
B. Acceptable Contributions
C. Irrevocability and Refunds
D. Tax Deductibility
E. Employer Matching
Section 4: General Platform Policies
A. Ownership of the Platforms
B. Content and Spotlighter Generated Content
C. Feedback
D. Recordkeeping
E. Content not to be construed as a solicitation or recommendation
F. System Outages and Slowdowns
G. Changes to Terms & Conditions
H. Accessing the Platforms and Account Security
I. Prohibited Uses
J. Copyright Infringement
K. Reliance on Information Posted
L. Geographic Restrictions
M. Disclaimer of Warranties
N. Limitation on Liability
O. Indemnification
P. Governing Law & Arbitration
Q. Violation of Terms & Conditions
R. California Residents Waiver and Release
S. Miscellaneous
1. Waiver and Severability
2. Entire Agreement
3. Your Comments and Concerns
…
Section 1: Overview, Terms & Conditions
The following terms apply to The Spotlight Fund d/b/a Spotlight, a California Benefit corporation (“Spotlight”). All spotlight users (“Spotlighters”) accept and agree to be bound and abide by these terms and conditions, our [Privacy Policy], and all other Spotlight policies (collectively “Terms & Conditions”). You agree to be bound by these Terms & Conditions by doing any of the following:
By accessing or using www.spotlight.xyz.com (“Website”) or any Spotlight-provided app (“App”) (collectively, the Website and App(s) are referred to as the “Platforms”), or any other methods linking to these Terms and Conditions;
By accessing or using any services made available by Spotlight (“Services”), including by making donations, sales, or purchases through the Services and Platforms; or
By accepting donations through Spotlight’s Services or Platforms, including but not limited to receiving donations via American Online Giving Foundation (“AOGF”) (whether or not directly using the Services or Platforms).
If you do not want to agree to these Terms and Conditions, then you must not access or use the Website. This Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
Spotlight functions as both an app and website through which Spotlighters can make donations to select IRS-qualified public charities of their choice. Spotlight’s Fees are set forth on the pricing page. When you donate through Spotlight, your donation will be conveyed to a donor-advised fund (“DAF”) at the American Online Giving Foundation (“AOGF”), a public charity under Internal Revenue Code sections 501(c)(3) and 509(a)(1). AOGF processes these donations as a “receipting charity” using software provided by Benevity, Inc., a B Corp. located in Calgary, Alberta, Canada (“Benevity”).
You may provide donor advice any time through Spotlight Platforms to direct some or all of your donation to the recipient cause(s) of your choice. AOGF typically disburses donations to recipient nonprofits once a month. Recipient nonprofits will receive your donation, minus applicable transaction fees. As required by law for a receipting charity, AOGF has exclusive control over donations it receives, and will regrant the contributed funds to the cause(s) designated by the Spotlighter.
Donor-advised funds are a specific type of donation mechanism that provides the benefit of an immediate U.S. tax deduction paired with the flexibility and freedom to later direct which IRS-qualified public charities will receive your donation(s). Because your donations via Spotlight are made to a donor-advised fund, your donations via Spotlight are non-refundable once they are processed.
Spotlight will not sell your personal information. Please review the Spotlight [Privacy Policy] Please note that your public profile is public: any other Platform user can see, for example, the contributions that are visible on your profile.
Violation of these Terms & Conditions will be considered grounds, at Spotlight’s sole discretion, for the removal of a Spotlighter from the Platforms and/or Services and for loss of access in whole or in part to the Platforms, Services, and to any Spotlighter privileges.
Section 2: Giving Wallet & DAF Information
A. What is a Giving Wallet and a DAF?
Your Giving Wallet is your personal Donor Advised Fund, or “DAF.”
A DAF is an account maintained and operated by a 501(c)(3) organization, which is called a “sponsoring organization”. The sponsoring organization that Spotlight uses is the American Online Giving Foundation (“AOGF”). Each DAF account holds contributions from specific individual donors. Once AOGF receives a donor’s contribution, AOGF has legal control over it, the donation cannot be refunded, and the donation must be distributed (eventually) to one or more IRS-qualified public charities. Because the money must eventually be distributed to charity, the donor can generally take a tax deduction right away. However, the donor retains advisory privileges with respect to the distribution of funds in the account. In other words, you the donor have the power to direct when and how much of the money in your DAF is distributed to whichever IRS-qualified public charities that you care about.
When you load funds to your Giving Wallet on Spotlight or click any donation button on Spotlight, you are making a tax-deductible contribution to your DAF at AOGF and recommending that AOGF make a grant of your donation to the nonprofit that you have selected, or that you will select. (Note: Spotlight does not give tax advice; please consult your tax advisor to determine tax deductibility and tax treatment.) AOGF verifies that the donation recipient meets all necessary qualifications for approval. Once approved, the donation amount is deducted from your DAF account, and the money is sent to the recipient.
AOGF retains authority and control over individual DAF accounts and may refuse a donor’s recommendations for any reason. In rare situations, AOGF cannot grant donated funds to the recommended nonprofit when, for example, such nonprofit falls out of compliance with a federal or state regulatory authority. If AOGF cannot grant the donation to the nonprofit that you have recommended, AOGF may in its sole discretion select an alternate recipient nonprofit or contact you for a different recommendation.
Credit card payment processing services on Spotlight are provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). As a Platform Spotlighter, you agree to be bound by the Stripe Services Agreement, as may be modified by Stripe from time to time. As a condition to Spotlight enabling credit card payment processing services through Stripe, you agree to provide Spotlight accurate and complete information about yourself and your business, and you authorize Spotlight to share any such information with Stripe, as well as transaction information related to your use of the Stripe payment processing services. In all cases, standard credit card or other third-party processing fees apply in addition to any Platform Fees. We are not responsible for the performance of any third-party credit card processing or third-party payment services. For more on pricing and fees, see the pricing page.
B. Spotlight DAF Requirements
1. Eligibility
Any individual over 18 years of age may open a Giving Wallet and become a Spotlighter.
2. Fees
Fees are set forth on the pricing page.
3. Minimum Contributions
All Spotlight DAF accounts require an initial one-time contribution of at least $1. After that, Spotlight’s minimum donation is $1.
4. Account Enrollment
To create a DAF account, a Spotlighter must provide certain personal and financial information. No bots, no bullshit is our motto here. Additional information may be required to authorize transactions depending on the transaction size or its nature.
5. Account Access
Spotlighters may access their accounts at any time by logging into the Spotlight Platform. Spotlighters are responsible for reviewing their accounts to ensure their accounts are secure. Spotlight is not responsible for any losses resulting from account fraud, theft, or any other unauthorized activity.
6. Account Identification
Contributions to a Spotlight account are held in an account that may be named by the Spotlighter, though Spotlight reserves the right not to approve a name for a Spotlight account. Spotlight assigns each DAF account a unique fund number. Contributions remain in that Spotlighter’s DAF account until the Spotlighter recommends a donation or until the account is terminated.
7. Commercial DAF Accounts
As part of the Service, you may be charging your customers for donations and holding the funds for a period of time before transferring them to us. Amounts that your customers pay to you with respect to the portion of the subscription or merchandise purchase that the customer elects to treat as a charitable donation (e.g., a percentage of sales) shall be paid to you on behalf and for the benefit of AOGF, a 501(c)(3) nonprofit organization. You shall hold such amounts in trust for the benefit of AOGF, and promptly remit those balances to Spotlight, as AOGF's agent, as soon as commercially practicable, but in no event shall you hold those funds more than 30 days. Until the receipt of such amounts by AOGF, AOGF shall have a security interest in such amounts and may, at its discretion, evidence such security interest by filing one or more financing statements (e.g., Form UCC-1) in favor of AOGF. You will take such steps as we reasonably request in order to perfect that security interest.
Donations are paid to Spotlight as agent for AOGF. Spotlight holds donations received from you in trust for AOGF for no more than 30 business days before remitting them to AOGF. As a donor-advised fund, AOGF is obligated to regrant those donations to the intended recipient U.S. nonprofit organization(s). If it is unable to do so after making reasonable efforts, it will regrant those funds to a U.S. nonprofit with a similar mission.
Section 3: Policies Related to Contributions
A. Organizations Receiving Donations
All organizations receiving donations must be active in our Spotlight directory and in compliance with AOGF requirements. AOGF requires that recipient organizations must be:
501(c)(3) organizations or 509(a) Public Nonprofits under the U.S. Internal Revenue Code;
In good standing with the U.S. Internal Revenue Service with valid tax-exempt status; and
In compliance with all laws, rules, and regulations in the jurisdictions in which they operate;
And must not be:
On any “watch list” or sanctions list; or
Located in any OFAC-sanctioned countries or regions.
B. Acceptable Contributions
Spotlighter may make contributions to their DAF account via debit card, credit card, or Apple Pay payment through Spotlight Platforms. Additional methods of making contributions may be added in the future without notice.
C. Irrevocability and Refunds
In accordance with the law, no refunds will be given after the donation is processed. All contributions to a DAF account are unconditional and irrevocable. Once contributions are made to a DAF account, AOGF retains the ultimate control over how the funds are distributed. If you have questions, please contact people@spotlight.xyz.
D. Tax Deductibility
Spotlight does not provide legal or tax advice to Spotlighters, and recommends that Spotlighters consult with a tax advisor for guidance specific to their personal financial and tax situation. Generally, Spotlighters who are U.S. taxpayers may take allowable tax deductions after contributing to a DAF account. America Online Giving Foundation is tax exempt under tax ID 81-0739440. This charitable deduction may be used to offset a portion of taxable income; however, the amount eligible for deduction varies depending on a donor’s filing status, income, and contribution made. Donors are only eligible for a tax deduction when making the initial contribution to a DAF account; donors may not take an additional deduction when a donation is recommended to a nonprofit or if they receive funds via a wallet-to-wallet transfer from another Spotlighter, organization, or employer.
E. Employer Matching
Some employers offer their employees the ability to receive a matching donation for a donation made to a qualified nonprofit organization. Please consult with your employer to find out if donations made to a DAF qualify.
Section 4: General Platform Policies
A. Ownership of the Platforms
The Platforms are expressly owned and operated by Spotlight. Unless otherwise noted, the design and content of the Platforms, including without limitation information and other materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software, URLs, and the like, as well as the selection, assembly, and arrangement thereof, are owned by Spotlight or are licensed by Spotlight from third parties. The Platforms, as a whole and in part, are protected by copyright, trademark, service mark, trade name, and other intellectual property and proprietary rights. All rights reserved.
B. Content and Spotlighter Generated Content
In using the Platforms, Spotlighters may have the opportunity to post, publish, stream, display, or transmit photos, videos, comments, ideas, remarks, questions, data, graphics, opinions, designs, customizations, or other content on the Platforms (collectively “Spotlighter Generated Content”). You understand and acknowledge that you are responsible for all Spotlighter Generated Content you submit or contribute, and that your Spotlighter Generated Content must comply with the content standards set out in these Terms and Conditions.
As a Spotlighter, you alone are responsible for monitoring your own Spotlighter Generated Content to ensure compliance with the Terms and Conditions and you retain ownership to all of your Spotlighter Generated Content. However, Any User Contribution you post to the Spotlight Platforms will be considered non-confidential and non-proprietary: by submitting Spotlighter Generated Content to Spotlight, you hereby grant Spotlight a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, your Spotlighter Generated Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in your Spotlighter Generated Content. Spotlight shall have the right to “roll up” various benchmarking results of Spotlighters’ use of the Platforms for use in the ordinary course of Spotlight’s business such as benchmark reporting. The results shall be aggregated and anonymized and not identifiable or tied to any specific Spotlighter.
a. You warrant to Spotlight that the holder of any intellectual property right, including moral rights, in your Spotlighter Generated Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
b. In addition, you represent and warrant to Spotlight that you will abide by Spotlight’s Terms and Conditions, and will not:
i. provide Spotlighter Generated Content that is obscene, indecent, defamatory, libelous, unlawfully threatening or unlawfully harassing, or infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
ii. engage in any conduct that is deceptive or is likely to deceive any person;
iii. create any liability for Spotlight or cause Spotlight to lose (in whole or in part) the services of its Internet Service Provider(s), web hosting company or any other vendors or suppliers;
iv. engage in any conduct that, in Spotlight’s sole judgment and discretion, restricts or inhibits any other Spotlighter from using or enjoying the application or services;
v. use the Platforms or Services to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
vi. interfere with or disrupt any servers or networks used to provide the Platforms or their respective features, or disobey any requirements of the networks Spotlight uses to provide the Platforms;
vii. gain unauthorized access to the Platforms, or any account, computer system, or network connected to the Platforms or Services, by any unauthorized or illegal means;
viii. obtain or attempt to obtain any materials or information not intentionally made available through the Platforms;
ix. use the Platforms to post, transmit, or in any way exploit any information, software or other material for commercial purposes, or that contains advertising, except that using the application for charitable fundraising activities is expressly permitted;
x. engage in advertising or commercial solicitation of any product or service without Spotlight’s written consent, except that using the Platforms for fundraising activities is expressly permitted;
xi. gather for commercial marketing purposes any email addresses or other personal information posted by other Spotlighters;
xii. post any identification documents or sensitive information about another person.
c. Spotlight shall have the right, but no obligation, to monitor Spotlighter Generated Content and other features of the Platforms to determine compliance with these Terms & Conditions and any other operating rules we establish. Spotlight shall have the right in its sole discretion to edit, refuse to post, or remove any material submitted to or posted through the Platforms or Services. We do not control any Spotlighter Generated Content that you or other Spotlighters may provide. Spotlight neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement on the Spotlighter Generated Content, whether it is provided by Spotlight, our employees, or a third party.
d. Under no circumstances will Spotlight be liable for any loss or damage of any kind caused by reliance on information obtained through Spotlighter Generated Content. Spotlight is not responsible for any offensive, defamatory, obscene or any other posting made through the application. We reserve the right at all times to disclose any information we believe necessary to satisfy any law, regulation or governmental request, or to refuse to post or to remove any information or materials, in whole or in part, for any or no reason or that in Spotlight’s sole discretion is inappropriate, objectionable or in violation of these terms. Any Spotlighter who feels that a posted message is objectionable is encouraged to contact us immediately by email at people@spotlight.xyz.
e. We have the right to:
i. Remove or refuse to post any Spotlighter Generated Content for any or no reason in our sole discretion.
ii. 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 the Terms & Conditions, including the content standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Platform or the public or could create liability for the Company.
iii. 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.
iv. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform.
v. Terminate or suspend your access to all or part of the Platform for any or no reason, including without limitation, any violation of these Terms & Conditions.
f. Without limiting the foregoing, we have the right to fully cooperate 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 Platform. YOU WAIVE AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
g. However, we do not undertake to review all material before it is posted on the Platform, 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.
h. Spotlight is a provider of an interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. §230, and expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on the Platforms.
C. Feedback
You agree that submission of any ideas, suggestions, documents, and/or proposals to Spotlight (“Feedback”) is at your own risk and that Spotlight has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit Feedback. You hereby grant to Spotlight a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights. You may send Feedback to people@spotlight.xyz.
D. Recordkeeping
Spotlight offers secure online access to accounts and will provide confirmations of all transactions. While Spotlight maintains these records for active Spotlighters, donors are advised to also save these confirmation receipts for their own records.
Spotlight also provides other financial information or reports required by law, as well as annual summaries of contributions.
Spotlighters and donors are fully responsible for any value they claim as a deduction or otherwise on their individual tax returns.
E. Content not to be construed as a solicitation or recommendation
As a content platform, Spotlight is the messenger for content. Information found on the Platforms, including but not limited to Spotlighter Generated Material, is for informational purposes only without regard to any particular Spotlighter’s objectives, financial situation, or means, and Spotlight is not soliciting any action based upon it. Information or material found on the Platforms is not to be construed as a recommendation, offer, or solicitation from Spotlight, which has not verified this information and does not represent that this information is accurate, current, or complete, and such information should not be relied upon as such.
You should not construe any material on the Platforms as business, financial, investment, legal, regulatory, tax, or accounting advice. You should not make any material on the Platforms the primary basis for any investment decisions. You should consult your own business, legal, tax, and/or accounting advisors concerning any contemplated transactions.
F. System Outages and Slowdowns
We may not operate 24/7. Without notice, we may experience outages or slowdowns due to routine Platform maintenance, or because of high Internet traffic, transmission problems, capacity limitations, or other issues.
G. Changes to Terms & Conditions
We may revise and update these Terms & Conditions from time to time in our sole discretion. All changes are effective immediately when we post them.
Your continued use of the Platforms following the posting of revised Terms & Conditions means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
H. Accessing the Platforms and Account Security
We reserve the right to withdraw or amend the Platforms, and any service or material we provide on the Platforms, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platforms are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Platforms, or the entirety of the Platforms, to users, including registered users.
You are responsible for both:
Making all arrangements necessary for you to have access to the Platforms.
Ensuring that all persons who access the Platforms through your internet connection are aware of these Terms & Conditions and comply with them.
To access the Platforms or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platforms that all the information you provide on the Platforms is correct, current and complete. You agree that all information you provide to register with the Platforms or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our [Privacy Policy], and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
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 you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Platforms or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. 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.
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 these Terms & Conditions.
I. Prohibited Uses
You may use the Platforms only for lawful purposes and in accordance with these Terms & Conditions. You agree not to use the Platforms:
In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
To send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in these Terms & Conditions.
To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Platforms, or which, as determined by us, may harm the Company or users of the Platforms, or expose them to liability.
Additionally, you agree not to:
Use the Platforms in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Platforms, including their ability to engage in real time activities through the Platforms.
Use any robot, spider or other automatic device, process or means to access the Platforms for any purpose, including monitoring or copying any of the material on the Platforms.
Use any manual process to monitor or copy any of the material on the Platforms, or for any other purpose not expressly authorized in these Terms & Conditions, without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Platforms.
Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platforms, the server(s) on which the Platforms are stored, or any server, computer or database connected to the Platforms.
Attack the Platforms via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Platforms.
J. Copyright Infringement
If you believe that any Spotlighter Generated Content violates your copyright, please email people@spotlight.xyz to provide us with notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
K. Reliance on Information Posted
The information presented on or through the Platforms 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 Platforms, or by anyone who may be informed of any of its contents.
The Platforms includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
L. Geographic Restrictions
The owner of the Platforms is based in the State of California in the United States. We provide the Platforms for use only by persons located in the United States. We make no claims that the Platforms or any of their content is accessible or appropriate outside of the United States. Access to the Platforms may not be legal by certain persons or in certain countries. If you access the Platforms from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
M. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Platforms will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THEM, OR ON ANY PLATFORMS LINKED TO THEM.
YOUR USE OF THE PLATFORMS, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS IS AT YOUR OWN RISK. THE PLATFORMS, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORMS. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PLATFORMS, THEIR CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
N. Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORMS, ANY PLATFORMS LINKED TO THEM, ANY CONTENT ON THE PLATFORMS OR SUCH OTHER PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS OR SUCH OTHER PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
O. Indemnification
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising under or out of, resulting from, or relating to (1) your violation of these Terms and Conditions, related Policies such as the Boneyard Marketplace Policy and the Privacy Policy; (2) your use of the Platforms, including, but not limited to, your Spotlighter Generated Content or other Spotlighter Generated Content, any use of the Platforms’ content, services and products other than as expressly authorized in these Terms & Conditions; (3) your use of any information obtained from the Platforms; (4) your actual or alleged infringement or violation of any patents, copyrights, trade secrets, licenses, or other intellectual property rights of a third-party, or any privacy or data security rights of a third party including but not limited to Spotlight users and buyers of merchandise listed on Spotlight platforms such as Boneyard; (5) any breach of your representations, warranties, duties and obligations, or provisions of the Spotlight Terms & Conditions or other policy such as the Boneyard Policy or Privacy Policy; or (6) Seller’s failure to comply with Seller’s obligations under any and all laws, rules or regulations applicable to Seller.
P. Governing Law & Arbitration
These Terms & Conditions shall be governed by and construed in accordance with the internal laws of the State of California.
YOU, SPOTLIGHT, AND BONEYARD ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, OR TO YOUR USE OF THE PLATFORMS, APPS, OR WEBSITES, OR TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE PLATFORMS, APPS, OR WEBSITES WILL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
If your claim qualifies for small-claims court, then you may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of the relevant purchase through the Platforms or of the event or action underlying the claim. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR SPOTLIGHT OR BONEYARD WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Q. Violation of Terms & Conditions
Spotlight reserves the right to mute, decrease visibility, deactivate, suspend, or terminate your Platform accounts, profiles, or Boneyard shops, and to remove or refuse to post any of your Spotlighter Generated Content, and to take any other action Spotlight deems necessary or appropriate, at any time, including but not limited to in connection with unusual activity or violations of the Spotlight Terms & Conditions as may be determined in the sole discretion of Spotlight. Unless there are legal or regulatory reasons that prevent doing so, Spotlight will make reasonable efforts to communicate information to you about the issue, but you understand that there may be times when Spotlight may take action before being able to communicate with you.
R. California Residents Waiver and Release
California residents must, as a condition of this Agreement, waive the applicability of California Civil Code Section 1542 for unknown claims which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN THEIR FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY THEM, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” You acknowledge that you have read and understand Section 1542 of the California Civil Code, and you expressly waive this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release and agree and acknowledge that you are waiving and relinquishing all rights and benefits of such statute.
S. Miscellaneous
1. Waiver and Severability
No waiver of by the Company of any term or condition set forth in these Terms & Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms & Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms & Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms & Conditions will continue in full force and effect.
2. Entire Agreement
The Terms & Conditions, our Privacy Policy, Terms of Sale, and Boneyard Marketplace Policy, and any other Policies provided on our Platforms constitute the sole and entire agreement between you and The Spotlight Fund with respect to the Platforms and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platforms.
3. Your Comments and Concerns
The Platforms are operated by The Spotlight Fund, 681 San Rodolfo Drive #1060, Solana Beach, California 92075.
All other feedback, comments, requests for technical support and other communications relating to the Platforms should be directed to: people@spotlight.xyz.