Terms of Use
Last Updated: September 7, 2019
IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
This Terms of Use (the “Terms”) is a legal agreement between you and Seldin/Haring-Smith Foundation (“SHSF”), which owns and operates americankindertransport.org and shs.foundation (“We,” “us,” or “our”). SHSF is a family foundation focused on higher education and immigration. These Terms apply to your access and use of any SHSF-operated website (the “Site”).
By accessing or using the Site, you are indicating that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms, then you have no right to access or use the Site.
We may, from time to time, modify these Terms. Please check this page periodically for updates. Any changes will be posted on the Site. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Site. The updated Site will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Site after any such update constitutes your binding acceptance of such changes.
1. ELIGIBILITY
You must be 18 years of age or older to use the Site. If SHSF has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
2. OUR PROPRIETARY RIGHTS
SHSF owns and operates the Site. The Site may contain graphics, information, or other content that may be protected by United States copyright laws, trademarks, and other intellectual property laws. You agree to abide by all applicable copyright and other laws.
3. SUBMISSIONS
You may be able to submit content such as questions, comments, and other content (collectively, “Submissions”) to us on or through the Site. When you provide Submissions on or through the Site, you grant SHSF a license to treat the Submissions in accordance with our Privacy Policy. Any Submissions submitted by you are your sole responsibility, and you agree not to provide us with any Submissions that are offensive, indecent, misleading, or that violate any third-party rights. You agree that you will indemnify, defend, and hold harmless SHSF for all claims resulting from Submissions you provide. We reserve the right, at our own expense, to assume the defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
4. LICENSE AND PROHIBITED CONDUCT
4.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Site only for your own internal, personal, or non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Site. We may revoke this license at any time, in its sole discretion.
4.2 Prohibited Uses. Use of the Site for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
Send Submissions that harass, abuse, or threaten any other person, or that contain obscene content; are false, misleading, or inaccurate; degrade others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or any other classification; are unlawful, harmful, tortious, defamatory, libelous, or invasive of another’s privacy;
Do anything that could disable, overburden, or impair the proper working of the Site;
Falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody; or
Send spam or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Site.
5. PRIVACY
For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms.
6. WARRANTIES AND DISCLAIMERS
THE SITE AND ITS CONTENTS AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, SHSF DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE TRANSMISSION OF SUBMISSIONS) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iii) THE SITE OR THE SERVER(S) THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE CONTENT ON THIS WEBSITE IS PROVIDED AS A SERVICE TO MEMBERS OF THE PUBLIC. THE SITE IS NOT AFFILIATED WITH AND DOES NOT ENDORSE ANY FOSTER AGENCIES OR ANY OTHER ORGANIZATION. THE SITE AND ITS CONTENTS AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SITE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THEY ARE SUBJECT TO CHANGE WITHOUT NOTICE. WHILE THE SITE TAKES MEASURED STEPS TO ENSURE THE CORRECTNESS OF THE RESOURCES PROVIDED, THE SITE DOES NOT GUARANTEE THE ACCURACY, CURRENCY, OR COMPLETENESS OF ANY INFORMATION ON THE WEBSITE. YOU ACKNOWLEDGE THAT SUCH INFORMATION AND MATERIALS MAY CONTAIN INACCURACIES OR ERRORS AND THE SITE IS NOT RESPONSIBLE FOR DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY SORT ARISING FROM ACCESSING OR USING THE WEBSITE OR RELIANCE ON THE INFORMATION AVAILABLE ON THE WEBSITE. YOUR USE OF ANY INFORMATION OR MATERIALS ON THIS WEBSITE IS ENTIRELY AT YOUR OWN RISK, FOR WHICH WE SHALL NOT BE LIABLE. IT SHALL BE YOUR OWN RESPONSIBILITY TO ENSURE THAT ANY PRODUCTS, SERVICES OR INFORMATION AVAILABLE THROUGH THIS WEBSITE MEET YOUR SPECIFIC REQUIREMENTS.
IN NO EVENT SHALL SHSF OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY), ARISING OUT OF OR IN CONNECTION WITH THE SITE, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SITE, OR ANY LINK PROVIDED ON THE SITE, WHETHER OR NOT SHSF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT YOU DONATED TO SHSF OR, IF YOU HAVE NOT MADE ANY DONATION, $100.
If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above. Accordingly, some of the above limitations may not apply to you.
7. INDEMNITY
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD SHSF AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR VIOLATION OF THE TERMS OR SHSF’S PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSIONS, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
8. THIRD-PARTY LINKS AND SERVICES
The Site may provide (1) information and content provided by third parties; and (2) links to third-party websites or resources. SHSF is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that SHSF shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
9. MODIFICATION AND TERMINATION
9.1 Modification of Site. We reserve the right at any time to modify or discontinue, temporarily or permanently, the Site (or any part thereof), with or without notice. You agree that SHSF shall not be liable to you or any third party for any modification, suspension or discontinuance of the Site.
9.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Site at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Site, these Terms will terminate and all rights you have to access the Site will immediately terminate; however, certain provisions of these Site will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions.
10. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.1 Application. You and SHSF agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 10 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
10.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at info@shs.foundation, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with SHSF, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
10.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 10.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of SHSF shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
10.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
10.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 1155 F Street, NW Suite 1150 Washington, D.C. 20004; and (c) Send one copy of the Demand for Arbitration to us at: 6856 Eastern Avenue NW, Washington, D.C. 20012.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, SHSF will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, SHSF will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Washington, D.C., United States, and you and SHSF agree to submit to the personal jurisdiction of any federal or state court in Washington, D.C., in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
10.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND SHSF AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
10.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
10.8 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at info@shs.foundation with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (a) the Effective Date of these Terms; or (b) your first date that you used the Site that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, SHSF also will not be bound by them.
10.9 Changes to This Section. SHSF will provide thirty (30) days' notice of any changes to this section by posting on the Site. Amendments will become effective thirty (30) days after they are posted on the Site or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Site.
10.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Site.
11. CONTROLLING LAW AND SEVERABILITY
These Terms shall be construed in accordance with and governed by the laws of Washington, D.C., notwithstanding its conflicts of law principles. Except for claims subject to mandatory arbitration, any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Washington, D.C., and you and SHSF consent to the exclusive jurisdiction of such courts.
12. GENERAL TERMS
12.1 No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of SHSF to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
12.2 Third-Party Beneficiaries/Relationship between the Parties. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. No agency or employment between you and SHSF is created as a result of the Terms or your use of the Site.
12.3 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12.4 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and SHSF and govern your use of the Site, and supersede any prior agreements between you and SHSF on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by SHSF without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of SHSF. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
12.5 Notices. We may deliver notice to you by e-mail, posting a notice on the Site or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) 501 Silverside Road, Suite 123, Wilmington, DE 19809; or (2) info@shs.foundation.
13. QUESTIONS
If you have any questions about these Terms, please contact us by email at info@shs.foundation.