My PowerPak™ Terms of Use

Last Updated: 06/18/2021

These Terms of Use govern your use of websites and applications owned or operated by My PowerPak LLC, a Delaware public benefit corporation ("My PowerPak", "we" or "us") www.MyPowerPak.com (the "Site"), all online video services, applications (e.g., iPhone applications, iPad applications, Android applications, etc.), and any other interactive features, widgets, products, and resources offered by My PowerPak LLC and/or its affiliates, distributors or licensees (all of which are collectively referred to as the "Services"). A public benefit corporation is intended to produce a public benefit or public benefits and to operate in a responsible and sustainable manner. These Terms of Use together with our Privacy Policy and any Additional Terms (as defined below) (collectively, the "Terms") constitute your complete agreement regarding your use of the Site and Services. By using the Site or Services, you agree to the Terms.

READ THESE TERMS OF USE CAREFULLY. THEY REQUIRE BINDING ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST US.

1. CREATING AN ACCOUNT/ELIGIBILITY

You must be at least 13 years old to use the Site or the Services. Children under the age of 13 are prohibited from using the Site or Services unless done so under the direct supervision of an adult. Creating an account with false information is a violation of our Terms. If you suspect a child under the age of 13 is using our Site or Services without the supervision of a qualified adult, please email us at privacy@mypowerpak.com.

Registration Information. When you register, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update your registration information to keep it true, accurate, current, and complete. We reserve the right to suspend, limit accessibility, or terminate any account lacking true, accurate, current, or complete information.

2. ADDITIONAL TERMS

Your use of certain Services or participation in fundraisers, sweepstakes, contests, or promotions (collectively, "Promotions") may be subject to additional terms and conditions or rules ("Additional Terms"). Where Additional Terms apply, we will make them available for you to read before you use that Service or participate in the Promotion. By using such Services or participating in such Promotion, you agree to the Additional Terms.

3. PASSWORD AND ACCOUNT SECURITY

You may create your own account on the Site or Application by completing the online registration process on the Site or Application. You agree that you will not register under the name of another person, choose a username that is vulgar, profane, or otherwise offensive, choose a username that impersonates or suggests representation of another person or entity, or choose a username that includes a solicitation.

If you create an account, we will assign you, or allow you to select a password. You must keep your password confidential, and you may not permit any other person to use your password or your account to view My PowerPak or for any other purpose. You will be responsible for all use of your password, including, without limitation, any use by any authorized or unauthorized third-party. You must notify us immediately at privacy@mypowerpak.com if you believe your password may be used by any unauthorized person or entity. For security purposes, we recommend you change your password often. Under no circumstance should you respond to a request for your password. Our employees will never ask for your password. You must notify us immediately if you receive such a request.

4. ACCOUNT TERMINATION

We may, in our sole discretion, immediately suspend or terminate your use of the Site and Services in the event:

You are under the age of 13;
You are in violation of, or have previously violated these Terms or any policy we may publish;
We determine or believe that your password is being used without permission or otherwise in a manner that may disrupt the Site;
You are prohibited from receiving or using our Site and Services under applicable State or Federal laws; or
We determine that your use of the Site and Services is contrary to the best interests of My PowerPak and its users.

5. USE OF THE SITE AND SERVICES

My PowerPak is intended for you to share content that is important to you and your Pak without impacting your and other's safety and well-being. By posting, transmitting, or submitting any information or communication through My PowerPak (“User Content”), you agree that you are solely responsible for the content and consequences of such User Content. We reserve the right to pursue legal action against any individual who violates these terms. In promoting this goal, we prohibit User Content that may be harmful to other users or to us. When you use the Site or Services or submit User Content, you may not:

Share anything that violates these Terms or our other policies;
Engage in any unlawful, misleading, discriminatory, or fraudulent activity;
Copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, broadcast, perform, display, sell, transmit or retransmit any content you access on the Site or Services, other than expressly permitted;
Violate any law or regulation;
Violate or infringe other people’s intellectual property, privacy, publicity, or other legal rights;
Submit anything illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, derogatory, or otherwise objectionable;
Send unsolicited or unauthorized advertising or commercial communications, surveys, contests, chain letters, repetitive posts, and other spam communications;
Transmit any malicious or unsolicited software;
Stalk, harass, harm, embarrass, or threaten another individual;
Impersonate or misrepresent your affiliation with someone else;
Use any means to "scrape," "crawl," or "spider" any web pages contained in the Site (although we may allow operators of public search engines to use spiders to index materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and we reserve the right to revoke these exceptions either generally or in specific cases);
Use any means to harvest or otherwise collect or state personal information of other users;
Communicate the address, email address, or phone number of another person without Prior consent;
Use automated methods to use the Site or Services in a manner that sends more requests to our servers in a given period than a human can reasonably produce in the same period by using a conventional web browser;
Modify, make derivative works of, disassemble, reverse engineer or reverse compile any part of the Site;
Access or view the Site to build a similar or competitive website, product, or Service; or
Interfere with or disrupt the Site or Services.

We reserve the right (but are not obligated) to, without limitation and in our sole discretion:

Record communication through the Site or Services
Investigate any alleged violation of our terms;
Monitor, edit, disclose, restrict, or remove any User Content that, in our sole discretion, violates these Terms; or
Disclose any User Content or communication to law enforcement or to satisfy any law, regulation, or governmental request.

6. ACCURACY OF DATA

We make no claims or promises about the quality, accuracy, or reliability of any content available on or through the Site or Services. We are not liable for any loss or damage that might arise from your reliance on any content available on or through the Site or Services.

7. OWNERSHIP

We own or license certain content on the Site and Services, including software, text, visual and audio content ("Content"), My PowerPak and/or My PowerPak LLC trademarks, tradenames, logos, brand elements ("My PowerPak Marks"), and the trademarks, trade names, logos, and brand elements of third-party goods and services that may be offered on the Site or through the Services ("Third-Party Marks"). The Content, My PowerPak Marks and Third-Party Marks are protected under U.S. and international laws. Except pursuant to applicable law, you may not reproduce, publish, republish, display, copy, use, distribute, create derivative works, or otherwise exploit any My PowerPak Marks, Third-Party Marks, articles, or Content from the Site, without obtaining our prior written consent.

Subject to these Terms, we hereby grant to you a personal, non-exclusive, non-transferable, royalty-free, non-sublicensable, revocable, limited license to access, view and use the Site and Services solely for personal and non-commercial use. The Site and Services are provided to you on a temporary basis, and we reserve the right to withdraw or restrict access to all or any part of the Site or Services at any time.

Nothing in this agreement shall be construed to take away any rights or obligations you or a third-party may have in content posted on My PowerPak. In agreeing with the Terms, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with our Privacy Policy and your user settings).

If you choose to promote the Site or Services to the public, including via your own personal social networks and social media, you agree that you will comply with the Federal Trade Commission's ("FTC") Guidelines Concerning the Use of Testimonials and Endorsements in Advertisement available from the FTC and all other applicable state or federal laws or regulations.

8. DIGITAL MILLENNIUM COPYRIGHT ACT

We respect the intellectual property rights of others. Upon proper notice, we will remove applicable content that violates copyright law and terminate the accounts of repeat infringers. Pursuant to 17 U.S.C. § 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been copied in a way that constitutes copyright infringement, please send our copyright agent (listed below) a notification of claimed infringement with all of the following information:

Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
Identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Site;
Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
Your physical or electronic signature.

Please send all of the above-enumerated information via mail or email to the following copyright agent:

Scott Wothe; trademark@mypowerpak.com; 867 Pierce Butler Route, St Paul MN 55104

9. PERMISSIONS YOU GIVE US

Some content that you share or upload, such as photos or videos, may be protected by intellectual property laws. You own the intellectual property rights (things like copyright or trademarks) in any such content that you create and share on My PowerPak. Nothing in these Terms takes away the rights you have to your own content. You are free to share your content with anyone else, wherever you want. However, as a prerequisite to use the Site and Services, you agree to provide us with a license to use your content. This is solely for the purposes of providing and improving our Site and Services. Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with your use of our Site and Services, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with our Privacy Policy and your user settings). This license will end when you terminate your account.

When you terminate your account, it's no longer visible to other users, however, it may continue to exist elsewhere on our systems where:

Immediate deletion is not possible due to technical limitations;
Your content has been used by others in accordance with this license, and they have not terminated their account (in which case this license will continue to apply until that content is deleted or account is terminated); or
Where our immediate deletion would restrict our ability to:
- Investigate or identify illegal activity or violations of our terms and policies (for example, to identify or investigate misuse of our Site, Services, or systems);
- Comply with a legal obligation, such as the preservation of evidence; or
- Comply with a request of judicial or administrative authority, law enforcement, or a government agency.

If you request content be deleted and it cannot be deleted as set forth above, the content will be retained for no longer than is necessary for the purposes for which it has been retained (the exact duration will vary on a case-by-case basis). In each of the above cases, the license you grant to us will continue until the content has been fully deleted.

10. PRIVACY

Your privacy and the security of your personal information is important to us. All account information and posts are only viewable by other members of the Pak. By clicking the link to an individual’s account, you agree to the terms of Service. Our Privacy Policy sets forth our security practices and is included as part of these Terms. By using our Site and Services, you expressly consent to the use and disclosure of your personal information as described in the Privacy Policy.

11. LINKS

Our Site and Services may contain links to other websites. A link to a third-party's website does not mean that we endorse it or are affiliated with it. We are not responsible or liable for any damage or loss related to the use of any third-party website. You should always read the terms and conditions and privacy policy of a third-party website before using it.

12. CHANGES AND CORRECTIONS TO THE SITE OR SERVICES

We enhance and update the Site and Services often. We may change or discontinue the Site or any Services, with or without notice to you. We reserve the right to correct any errors, inaccuracies, or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. We do not guarantee the continued availability of any content or features of the Site or Services.

13. COMMUNICATIONS

You acknowledge and grant My PowerPak the right to contact you via mail, email, or telephone concerning any updates, changes, or developments with your account.

14. WARRANTIES

TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE PRODUCTS, SITES, SERVICES, OR ITS CONTENTS WILL BE COMPLETE, ACCURATE, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT THE PRODUCTS, SITES, OR SERVICES THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL INFORMATION ON THE PRODUCTS, SITES, OR SERVICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. WE DO NOT CONTROL OR DIRECT WHAT YOUR PAK MAY DO OR SAY, AND WE ARE NOT RESPONSIBLE FOR THEIR ACTIONS OR CONDUCT (WHETHER ONLINE OR OFFLINE) OR ANY CONTENT THEY SHARE (INCLUDING OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL, AND OTHER OBJECTIONABLE CONTENT).

15. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless My PowerPak and Affiliates, which includes any person or entity that directly or indirectly controls, is controlled by, or under common control of another person or entity, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including reasonable attorneys' fees and legal costs), arising from or relating to: (a) any information (including feedback or any other content) that you or anyone using your account submit, post, or transmit through the Site or Services; (b) the use of the Site or Services by you or anyone using your account; (c) the violation of these Terms by you or anyone using your account; or (d) the violation of any rights of any third-party, including intellectual property, privacy, publicity, or other proprietary rights by you or anyone using your account. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If we do assume the defense of such a matter, you will reasonably cooperate with us in such defense.

16. LIMITATION OF LIABILITY

IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITES, SERVICES, AND PRODUCTS WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, INDEMNITY, OR ANY OTHER THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING FROM OR RELATED TO YOUR USE OF THE SITES AND SERVICES SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO US IN THE PRIOR TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.

17. THIRD-PARTY LIABILITY

IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OF ANY THIRD-PARTY SITE, SERVICE, OR PRODUCT WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, INDEMNITY, OR ANY OTHER THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING FROM OR RELATED TO YOUR USE OF THE SITES, SERVICES, OR PRODUCTS SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO US IN THE PRIOR TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.

18. PAYMENT AND FEES

The Site and Services are administrative platforms only. My PowerPak operates as a facilitator to accounts and allows donors to make donations and gifts to accounts. My PowerPak is not a payment processor, money transmitter, broker, agent, financial institution, creditor, or 501(c)(3) nonprofit corporation and does not hold any funds. All donations or purchases for Champions you make are at your own risk.

My PowerPak uses Third-Party payment Processors (“Processor”) to process donations. My PowerPak’s Processor is an independent company that facilitates distributions of donations to respective Users. You acknowledge and agree that the use of Payment Processors is integral to the use of the Site and Services and that we exchange information with Payment Processors to facilitate the provision of donations to Users. Payments not capable of fulfillment through our third-party payment processor will be mailed to the most current address listed on the Champion’s account.

Donations shall incur a credit card fee of 2.9% plus a $0.30 charge per transaction and a administrative fee of 6% to My PowerPak. Any donation requiring shipment of goods or provision of services may be subject to additional fees. All donations shall be processed and disbursed to a User’s Account in a commercially reasonable time. My PowerPak may, in its discretion, aggregate donations to send at one time. If we choose to accept other payment forms in the future, we will also deduct those fees and costs from the donation prior to sending to the recipient.

19. SHIPMENT OF GOODS

My PowerPak permits donors to pay for goods on an Account Wishlist/Marketplace, which are subsequently shipped to the listed recipient. All goods purchased through the Site or Services are fulfilled by a third-party vendor and may be subject to additional fees. My PowerPak does not warrant that third-party providers accept returns of delivered goods. All goods shipped to you through a third-party are subject to additional third-party terms and conditions not contained herein.

You are responsible for updating any changes to the address listed on your account. If you have failed to update your address on your account and donations or items purchased are sent to the wrong address, we are not liable for any additional costs associated with returned or rerouted goods shipped to an incorrect address.

20. TERMINATION

We reserve the right not to provide the Site or Services to any user. We also reserve the right to terminate any user's right to access the Site or Services at any time, in our sole discretion. If you violate any of the Terms, as determined by us in our sole discretion, your permission to use the Site and Services automatically terminates.

21. OUR INTELLECTUAL PROPERTY RIGHTS

The Website and its contents, including, but not limited to, text, photographs, graphics, illustrations, video, sound, and other material (all such content collectively referred to as "Content"), are protected under United States and international copyright laws and are the property of us or our third-party licensors. All logos, splash screens, page headers, custom graphics, and button icons displayed on the Website are our or our third-party licensors' service marks, trademarks, and/or trade dress (collectively, "Marks"). No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by us. Any use of the Website not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.

22. DISPUTE RESOLUTION

Any controversy, claim, or dispute arising out of or related to these Terms (or the interpretation, performance, or breach of them), the Site, or the Services, including but not limited to alleged violations of state or federal statutory or common law rights or duties (a "Dispute") shall be solely and exclusively resolved according to the procedures set forth in this paragraph. If we are unable to resolve any Dispute through informal means, either party may initiate binding arbitration of such Dispute. The arbitration shall be initiated and conducted according to the JAMS/Endispute Comprehensive Arbitration Rules and Procedures in effect as of the date hereof, including the Optional Appeal Procedure provided for in such rules (the "Arbitration Rules"). The arbitration shall be conducted, either in person or by phone or video call, in Ramsey County, Minnesota, before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator's decision shall be controlled by these Terms, including any applicable Additional Terms. No Disputes may be arbitrated on a class or representative basis; arbitration can decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY ENTERING INTO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE YOUR RIGHT TO A JURY TRIAL AND ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY. The arbitrator shall not have the power to award punitive damages against any party. Without limiting the foregoing, any lawsuit filed relating to these Terms, the Site, Services, or your relationship with us, must be filed in the state or federal courts sitting in Ramsey County, Minnesota and you agree to irrevocably submit to the exclusive personal jurisdiction of such courts.

23. MISCELLANEOUS

These Terms are governed by and shall be construed in accordance with the laws of the State of Minnesota, without giving effect to any conflict of laws rules or provisions.

If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).

ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE WITH RESPECT TO THE WEBSITE MUST BE COMMENCED WITHIN ONE-YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, it will not affect the validity and enforceability of any remaining provisions.

These Terms do not confer any third-party beneficiary rights. All of our rights and obligations under these Terms are freely assignable by us in connection with a merger, acquisition, sale of assets, operation of law, or transfer of User data uploaded to My PowerPak. You will not transfer any of your rights or obligations under these Terms to anyone else without our consent.

These Terms are effective unless and until terminated by us and we reserve all rights not expressly granted to you. You agree that these Terms set forth the entire agreement between you and My PowerPak. We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

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