These Terms of Service (The "Terms") govern use of the websites and services of Diaspora, Inc. (d/b/a BackerKit), a Delaware corporation (together with its affiliates, "Diaspora", "we", "us", "our"), in addition to any supplemental terms applicable to any particular features, content and functionality of our websites and services.
By using any of our websites and/or services, Users agree to be bound by these Terms, our Privacy Policy, all applicable laws and all conditions or policies referenced here (collectively, these "Terms"). Diaspora may amend these Terms at any time by posting a revised version of these Terms on our website. Access to or continued use of our websites and services after the effective date of the revised Terms constitutes your acceptance of the revised Terms.
Diaspora provides a suite of software-enabled services, which are tools designed to increase the efficacy of crowdfunding campaigns for Project Creators. In these Terms, we refer to these services, provided through the Internet, websites, emails, applications, and other means as the "Service", "Services", or as "BackerKit". We refer to people and entities utilizing the Services to administer crowdfunding projects as "Project Creators" and to their crowdfunding projects as "Projects". We refer to the third-party platform on which a Project Creator hosts its crowdfunding campaign (for example, Kickstarter or Indiegogo) as a "Platform". We refer to those who have funded or committed to funding (subject to the achievement of a funding target) a Project on a Platform other than BackerKit as "Platform Backers", and such a funding event as a "Platform Pledge". We refer to those funding a Project on BackerKit (as a first occurrence funding event, or as an additional follow-up funding after a funding event on another Platform) as "BackerKit Backers", and we refer to each such funding event as a "BackerKit Pledge". We refer to Platform Backers and BackerKit Backers collectively as "Backers", and we refer to Platform Pledges and BackerKit Pledges collectively as "Pledges". We refer to the gifts or rewards, in the form of tangible items or intangible services promised by Project Creators to their Backers, collectively as "Rewards". Project Creators, Backers, and any other persons or entities who access any portion of the Services are referred to collectively as "Users". Users can have accounts on BackerKit which represent information personal to them, and accessible only by them or their authorized affiliates (each such account, a "User Account"). References in these Terms to "Stripe" and "Paypal" refer to Stripe, Inc. and PayPal, Inc. and their respective affiliates, or the "Stripe"- and "Paypal"-branded online payment services they and their affiliates offer, as the context indicates.
Each User must ensure that all information submitted in connection with such User’s User Account is accurate, truthful and up to date. Users are responsible for maintaining the credentials of their own User Accounts, and Diaspora will have no liability if such credentials are lost or stolen. Each User hereby agrees to notify Diaspora immediately if their User Account has been used without authorization or if they become aware of any other breach of security of their User Account. Each User also agrees to provide such additional information that Diaspora may reasonably request and to answer truthfully and completely any questions Diaspora might ask in order to verify such User's identity.
Diaspora grants each User a limited, non-exclusive, non-transferable, revocable license to use the Services subject to such User's eligibility and continued compliance with these Terms.
Each Project Creator’s responsibilities include but are not limited to the following
* Project Creators are permitted to offer Rewards to Backers.
* Project Creators will respond promptly and truthfully to all questions posed to them by Diaspora or any Backer.
* Project Creators will comply with all applicable laws and regulations in the use of Pledges and delivery of Rewards.
* Project Creators are responsible for collecting and paying any taxes due in connection with Pledges and Rewards.
Each Backer’s responsibilities include but are not limited to the following:
* Backers and all Users are solely responsible for asking questions and investigating Project Creators and Projects to the extent they determine necessary before making a Pledge.
* All Pledges are made voluntarily and at the sole discretion and risk of the Backer. Diaspora makes no assertions, warranties or guarantees whatsoever about any Pledge. Diaspora does not guarantee that BackerKit Pledges will be used as promised, that Project Creators will deliver Rewards, or that any Project will achieve its goals. Diaspora does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality or legality of any Project, Reward or Pledge, or the truth or accuracy of content posted by any User on the Services.
* Backers are responsible for determining how to treat their Pledges and receipt of any Rewards for tax purposes.
If a Pledge is returned to a Backer, the associated Rewards, if any, shall be canceled (to the extent practicable).
For the protection and benefit of the BackerKit community, each User agrees not to engage in any of the following acts. Users understand that engaging in any of the following may result in the immediate termination of their Accounts and may subject them to legal liability.
* Users may not use the Services in a manner that violates the law.
* Users may not use the Services to distribute unsolicited or unauthorized advertising or promotional content, including spam and junk mail.
* Users may not use the personal information of other Users obtained via the Services for any purposes to which those other Users did not consent.
* Users may not distribute viruses, malware, or anything else intended to interfere with or damage the property functioning of any software or hardware of any third parties.
* Users may not use the Services to harass, threaten, or defame another person or invade another person’s privacy.
* Users may not attempt to reverse engineer, decompile, or perform similar activities in respect of the Services.
* Users may not attempt to contravene the proper functioning of the Services, bypass or hack any of Diaspora’s systems, or take action to impose an excessive load on Diaspora’s technology infrastructure.
* Users may not use any automated tool to “crawl” or “scrape” data from the Services.
Diaspora has the following rights:
* Diaspora can make changes to BackerKit without notice or liability.
* Diaspora has the right to decide who is eligible to use BackerKit. We can cancel accounts or decline to offer our Services at any time and for any reason.
* Diaspora can change our eligibility criteria at any time. If any aspect of the Services or these Terms are prohibited by law in any jurisdiction, then we revoke your right to use BackerKit in that jurisdiction.
* Diaspora has the right to reject, cancel, interrupt, remove, or suspend any Project at any time and for any reason, including, without limitation, if a Project Creator has significantly delayed the fulfillment of a prior crowdfunding project on BackerKit or any other Platform.
* Diaspora is not liable for any damages incurred by any User result of Diaspora exercising any of its rights as set forth in these Terms, and it is our policy not to comment on the reasons for any actions relating to the rejection, cancellation, interruption, removal, or suspension of any Project.
Services for Project Creators
Services for Project Creators consist of three broad categories: outreach, operations and delivery. In these TOU, we refer to these collectively as “Project Creator Services”. Diaspora may add or remove services and service categories at any time, without notice and without liability. Diaspora may determine, at any time, in its sole and absolute discretion what specific services (if any) a particular User is eligible to use.
* Outreach services are, generally, services to help Project Creators communicate with existing or potential Backers. These services may include:
> Tools to conduct surveys to solicit information from Backers, such as Reward delivery addresses or style preferences.
> Tools to communicate to Platform Backers the means by which they can make additional pledges (BackerKit Pledges).
> Tools to market and receive pre-orders for Rewards or other products related to a Project.
> Tools to communicate to Backers about new or upcoming Projects and opportunities to make Pledges for those Projects.
> Tools to promote current Projects to potential Backers.
* Operations services are, generally, services to help Project Creators manage the operational aspect of a Project. These services may include:
> Tools to keep track of Backer profiles, Reward requests and deliveries, and similar information.
> Backer email support services from the BackerKit support team.
> Strategic consultation and support services for Projects.
* Delivery services are, generally, services to help Project Creators to manage the delivery of Rewards to Backers. These services may include:
> Tools to help Project Creators pack and ship Rewards.
> Tools to process orders for third-party fulfillment.
> Tools to store and deliver digital files to Backers as Rewards.
Services for Backers
Backers may create a “Backer Account” to link and gather information from the Projects that such Backer supports or is interested in. Diaspora may add or remove services for Backers at any time, without notice and without liability.
Important Information About the Services
Regardless of how BackerKit is used, the following terms apply:
* Rewards are not offered or fulfilled by Diaspora.
* Diaspora is not party to any transaction with Backers. Aside from transactions between Diaspora and Project Creators specifically mentioned below under the caption “Service Fees”, Diaspora is not party to any transaction with any User.
* Diaspora makes no representations about the quality, safety, morality or legality of any Project, Reward, or Pledge, or the truth or accuracy of User Content (as defined below) posted on the Services.
* Diaspora does not represent or warrant that Project Creators will deliver Rewards on time or at all, or that Pledges will be used as described in the Project.
* Diaspora does not make any representation about, nor will Diaspora be liable for, any aspect of any services provided by any other Platform (for example, Kickstarter or Indiegogo).
* Diaspora is not responsible for authenticating or confirming the accuracy of any information about any User.
* Users use BackerKit at their own risk.
Diaspora provides BackerKit as software or other service for Project Creators, and is not a party to any contract between any Project Creator and any Backer. The only contract governing the relationship between Diaspora and any Backer are these Terms (and any other documents incorporated herein, such as the Privacy Policy). When a Project Creator posts a Project on BackerKit and allows BackerKit Pledges, the Project Creator is inviting potential Backers to form a contract. Any person who makes a Pledge for a Project is accepting the Project Creator’s offer and forming a contract directly with the Project Creator. When this occurs, Diaspora is not a party to such contract. Instead, this contract is a legal agreement directly between the Project Creator and the Backer.
Notwithstanding the fact that Diaspora is not a party to any contract between a Project Creator and any Backer, and makes no representations or warranties in connection with the performance thereof, as a condition of using the Services, Project Creators must agree: (i) to make reasonable efforts to produce and ship, in a timely manner, the Rewards promised to their Backers, and (ii) to not knowingly misrepresent any material facts to Backers.
At the same time, by backing a Project, Backers are helping to create something new — not ordering something that already exists. If you make a Backerkit Pledge, you represent and warrant that you understand there may be changes or delays in the Project and the Rewards, and there is a chance the Project Creator will not be able to complete a Project or deliver the promised Rewards.
If a Project Creator is unable to fulfill any Rewards, they must make reasonable efforts to take the following actions:
* post an update that explains what work has been done, how Pledge funds were used, and what prevents them from finishing the Project as planned;
* work diligently and in good faith to bring the Project to a positive resolution in light of the unforeseen circumstances that prevented the Rewards from being fulfilled, in a timeframe that is communicated to Backers; and
* offer to return any remaining funds to Backers who have not received their Reward (in proportion to the amounts pledged), or else explain how those funds will be used to complete the Project in some alternate form.
The Project Creator, not Diaspora, is solely responsible for fulfilling the promises made to Backers. If an obligation to deliver Rewards exists, it rests solely with the Project Creator, and not Diaspora. By using the Services, Project Creators (i) represent and warrant that they understand they may be subject to liability if they breach these Terms, or the terms of any agreement they enter into with Backers.
BY USING THE SERVICES, BACKERS COVENANT NOT TO SUE DIASPORA FOR ANY FAILURE BY ANY PROJECT CREATOR TO (I) USE PLEDGES FOR STATED PURPOSES, OR (II) DELIVER ANY PROMISED REWARD. BACKERS MAKE PLEDGES AT THEIR OWN RISK.
Project Creators may be legally bound to perform on any promise and/or commitment to Backers (including delivering any Rewards). Diaspora does not recognize any third party and/or agency affiliated with the Project or Project Creator. Diaspora is under no obligation to become involved in disputes between Project Creators, Backers, Users, or any third party.
Diaspora may from time to time, but is under no obligation to, help facilitate communication between Project Creators and Backers, including communication related to payment disputes. Diaspora may attempt to help the parties in such a dispute move to a mutually satisfying resolution. The provision of any guidance by Diaspora in any such dispute shall be considered common sense guidance and not expert, financial, or legal advice. Any guidance provided by Diaspora to Project Creators, Backers, or Users shall not, under any circumstances, be construed as involvement by Diaspora as a mediator, arbitrator, fiduciary, or any other legally meaningful role.
In addition, Diaspora is under no obligation to become involved in disputes regarding the determination of a Project’s rightful Project Creator and will not be obligated to make any changes to Project Creator User Accounts or initiate any transfer of ownership.
In the event of any dispute involving an allegation by a Backer against a Project Creator, including, without limitation, an alleged failure by a Project Creator to fulfill a Reward, we may provide the Project Creator's contact information to the User(s) making such allegations so that the relevant parties may resolve their dispute; provided, that Diaspora will comply with the Privacy Policy and not disseminate physical addresses for such purposes. Project Creators hereby consent to the dissemination of their contact information for such purposes.
Diaspora does not have access to, control, or otherwise have any special relationship to Platform Pledges made by Platform Backers. Diaspora’s only connection to Platform Pledges is that we import the pledge amounts as data from other Platforms and represent that data in certain formats for the Project Creator
The following terms apply to BackerKit Backers, with respect to their BackerKit Pledges:
* Diaspora does not charge credit cards or collect funds from Backers. BackerKit facilitates the use by Project Creators of third-party services, such as Stripe or Paypal, to collect Backers’ payment information and charge Backers’ credit cards.
* The BackerKit Services may also allow Project Creators to interface with third-party payment services to reserve a charge on Backers’ cards.
* Only Project Creators can change a Pledge amount or cancel Platform Pledges or BackerKit Pledges. While Diaspora may, at times, communicate with third-party payment services and may thereby ultimately cause such third-party payment services to refund charges, Diaspora will only do so in a technical support role, at the express instruction of Project Creators experiencing technical difficulties. Diaspora assumes no agency or responsibility for the processing or refunding of Pledges. Each User understands and agrees that Diaspora will bear no liability in connection with the payment processing or refunding of any Pledge. Arrangements to cancel Pledges or refund charges must be made between Project Creators and Backers, and Diaspora is not a party to any such arrangements.
* Diaspora does not offer refunds. Responsibility for finishing a Project and/or issuing a refund lies entirely with the Project Creator.
* Diaspora does not hold funds on the Project Creator's behalf. Diaspora cannot and does not guarantee any aspect whatsoever of any Project Creator’s work, including without limitation the Project Creator’s Project or Rewards.
* The “Estimated Delivery Date” is the Project Creator’s estimate. The date listed on each Reward is the Project Creator’s estimate of when they will provide the Reward — not a guarantee to provide the Reward by that date. The Reward schedule may change as the Project Creator works on the Project. We encourage Project Creators to think carefully, set a date they feel confident they can achieve, and communicate with Backers about any changes.
The following terms apply to BackerKit Pledges:
* Project Creators can refund individual Pledges at their discretion. Project Creators can refund and cancel a BackerKit Pledge at any time. If you are a Backer and submit a BackerKit Pledge, you hereby consent to the foregoing, and agree that if a BackerKit Pledge is cancelled, the Project Creator will have no further obligation to you.
Some BackerKit Pledges cannot be collected, which might reduce the amount of funding Project Creators can expect to receive. Because some payments cannot be collected — for instance, when a Backer’s credit card expires before a Project Creator charges cards and the Backer does not provide updated information, Diaspora cannot guarantee that the amount of funding Project Creators receive will be exactly equal to the full amount pledged minus fees, or that total representations of available funds posted in the Services or elsewhere will be accurate.
Diaspora does not provide expert advice for Project Creators or Backers. Crowdfunding is a relatively new phenomenon, and there are many outstanding legal questions concerning crowdfunding, including but not limited to questions regarding the exact legal status of Pledges and Rewards, the tax consequences of Pledges and Rewards, appropriate customs declarations practices, and many others.
All communications made by Diaspora, either directed personally to any specific User or to the public at large, do not constitute professional, legal, or financial advice, and Diaspora assumes no fiduciary duties with respect to Users. When Diaspora comments on common practices, “best practices”, successful tactics, or observations made concerning activities on BackerKit or any other platform, those communications are not to be construed as advice directed at or applicable to you. Such comments are simply observations made by Diaspora’s staff, and do not guarantee any particular results. All Users of BackerKit are encouraged to seek appropriate guidance from legal and financial advisors concerning any legal or financial question they may have.
BackerKit Recognitions
Diaspora may, from time to time, highlight specific Projects on BackerKit or other platforms as interesting or noteworthy. Any such recognitions, including but not limited to being featured in ‘BackerKit Staff Favorites’, ‘BackerTracker’, or other categories, tags, or recognitions, shall not be construed as Diaspora’s endorsement of any particular Project, endorsement of the actions of any Project Creator, or any guarantee of a Project’s worthiness, a Project’s probability of being funded on any Platform, or any guarantee of a Project delivering on promises or fulfilling Rewards, or any guarantee of any other aspect of the Project.
Prohibited Uses of BackerKit Branding
Users are not permitted to use BackerKit colors, branding elements, or badges in BackerKit or on any other Platform or in any other way that could be interpreted as having been produced by BackerKit or Diaspora, as implying an endorsement by BackerKit or Diaspora, or as implying that BackerKit or Diaspora has made a specific comment as to a Project’s probability of (i) successfully being funded on any Platform, (ii) delivering on promises, or (iii) fulfilling Rewards.
* Setting up a User Account on BackerKit is free. We do not charge Service fees to Backers, or any Users that are not Project Creators. BackerKit may charge any or all of the following fees to Project Creators:
* Campaign Fees: "Campaign Fees" are fees for use of BackerKit to facilitate and market a Project. Based on the plan selected, these fees are calculated as a percentage of Pledges.
* Ongoing Import Platform Pledge Fees: In the case of additional Platform Pledge information being imported into BackerKit after the initial payment of Campaign Fees, additional Campaign Fees will be charged for the additional Platform Pledges imported. These additional Campaign Fees must be paid by Project Creators to BackerKit.
* Transaction Fees for Funds Raised in BackerKit: When payment from a BackerKit Backer to a Project Creator is collected by a third-party payment provider, such as Stripe, a portion of that transaction is contemporaneously paid to BackerKit. This payment transaction is administered by the third-party payment provider. The portion of the fees payable to BackerKit varies depending on the plan selected by the Project Creator. Each Project Creator acknowledges and agrees that some Pledges may be uncollectable (including, without limitation, because of fraud, chargeback disputes, because a Backer’s credit card expired between the time the Backer made the Pledge and the deadline for meeting a Project’s funding goals, or for any other reason), which may reduce the total proceeds of the Project. BackerKit may withhold funds pending the resolution of any collection issues.
* Service Fees: BackerKit charges service fees for certain services, such as marketing support services and email support services.
BackerKit’s functions include a tool that allows Project Creators to distribute digital files to Users, or to distribute generalized or individualized download-codes for the purpose of allowing Users access to digital assets on other platforms. In these Terms of Use, we refer to these digital files as “Digital Assets”.
Project Creators and Users may not use BackerKit to distribute Digital Assets in ways that are legally prohibited or that infringe the rights of third parties. Each Project Creator represents and warrants to Diaspora that all Digital Assets will at all times comply with all applicable law and will not violate the intellectual property rights or other rights of any third party. Each Project Creator understands that Digital Assets are User Content and subject to the representations and warranties and the license set forth below under the caption "User Content".
Project Creators and Users may not distribute assets that contain malware, viruses, or otherwise have the potential to cause electronic equipment to function in ways not intended by the equipment 's owners.
Responsibility for any damage created by digital assets distributed through BackerKit lies solely with the Users distributing and receiving assets, and not with Diaspora.
Users acknowledge that receiving assets from other parties requires a certain amount of trust between the sender and recipient. Diaspora does not endorse, vouch for, vet, scan, check, or otherwise analyze assets distributed by Project Creators or Users. Users completely assume the risk of receiving such assets and agree to hold Diaspora harmless from any damage that results in receipt of such assets.
Users under 18 years of age are not eligible to use the Services without consent. Users between the ages of 13 and 17 can use the Services with the consent and supervision of a parent or legal guardian who is at least 18 years old, provided such parent or legal guardian also agrees to be bound by these Terms and agrees to be responsible for such use of the Services. Users suspended from using the Services are not eligible to use the Services. Diaspora reserves the right to refuse use of the Services to anyone and to reject, cancel, interrupt, remove or suspend any Project, Pledge, or aspect of the Services at any time for any reason without liability.
Project Creators are not permitted to create a Project to solicit information from Users for illegal activities, to cause harm to people or property, or to scam others. Users must comply with all applicable laws and regulations in connection with their Projects, including offering Rewards and using Pledges. Project Creators shall not make any false or misleading statements in connection with their Projects.
Project Creators are not permitted to use BackerKit to offer or provide any of the following as a Reward:
* any form of "security" (as such term is defined in the United States Securities Act of 1933, as amended from time to time);
* any form of financial incentive or participation in any profit-sharing;
* any alcoholic consumer products (vouchers or memberships offering legally compliant physical delivery of alcoholic consumer products are permitted);
* any controlled substance or drug paraphernalia;
* any weapons, ammunition or related accessories;
* any form of lottery or gambling;
* any form of air transportation; or
* any items promoting hate, discrimination, personal injury, death, damage, or destruction to property; or
* any items (i) the possession or distribution of which is prohibited by applicable law, (ii) that would violate applicable law if distributed, or (iii) that would result in the infringement or violation of another person’s rights if distributed.
The determination of whether a Reward falls into any of the foregoing categories shall be made by Diaspora in its sole and absolute discretion.
Taxing authorities may classify Pledges raised on BackerKit (or other Platforms) as taxable income to the Project Creator and any beneficiary who will receive them. Each Project Creator and each Backer agrees that they are collectively be responsible for paying 100% of any such taxes, and Diaspora will have no responsibility for any such taxes. Users understand that Diaspora does not, and has no responsibility to, provide any forms, documents or other information for Users’ tax compliance purposes.
While using the Services, Users may post photos, videos, text, graphics, logos, artwork and other audio or visual materials (collectively, "User Content"). Users grant BackerKit a perpetual, non-exclusive, royalty-free, transferable, sublicensable, irrevocable, worldwide license to use, publicly display, publicly perform, store, reproduce, modify, create derivative works, and distribute User Content of any User on or in connection with the Services and our related marketing and promotional activities.
As between Users and BackerKit, Users continue to hold all ownership interests in their User Content. Each User represents and warrants that its User Content and our use of such User Content will not infringe any third-party’s intellectual property rights, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these Terms or applicable law, and that the User has the rights necessary to provide the license to BackerKit set forth in the previous paragraph.
Project Creators may not offer any contest, competition, giveaway, sweepstakes or similar activity (each, a "Promotion") on the Services without Diaspora’s prior written permission (which may be granted or withheld by Diaspora in its sole and absolute discretion). Project Creators may request permission from Diaspora by sending an email to [email protected]. Subject to and upon any such permission, each Project Creator offering any Promotion further acknowledges and agrees that: (a) such Project Creator shall be solely responsible for all aspects of each such Promotion; (b) such Promotion does not require any Pledge or other payment of any amount in order to enter into such Promotion; and (c) the official rules for such Promotion shall include clear and conspicuous language to the effect that: (i) Diaspora does not sponsor, endorse or administer the Promotion; (ii) each participant or entrant in the Promotion releases Diaspora from any and all liability in connection with the Promotion; and (iii) all questions concerning the Promotion must be directed to the Project Creator and not to Diaspora.
The Services may contain links to third-party websites, advertisers, or services that are not owned or controlled by Diaspora, including, without limitation, crowdfunding Platforms and third-party payment processors. Access to or use of such third-party sites or services are at each User's own risk. Except as otherwise expressly provided herein, Diaspora is not responsible for any loss or damage of any sort relating to Users’ interactions with these third-party sites or services. Each User hereby acknowledges that Diaspora has no ability to control the actions of such third-party services, or the terms by which such third parties operate their sites and services. We encourage Users to read the terms and conditions and privacy policy of any third-party website or service that they visit.
Project Creators that accept PayPal and Backers that use PayPal in connection with a Campaign acknowledge and agree to comply with all applicable PayPal legal agreements. (For convenience, a list of such agreements is available here: https://www.paypal.com/us/webapps/mpp/ua/legalhub-full)
Credit card payment processing services for Project Creators on BackerKit are provided by Stripe and are subject to the Stripe Connected Account Agreement (or equivalent agreement) for the applicable country, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By continuing to operate as a Project Creator on BackerKit and accepting credit card payments from BackerKit Backers, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition to Diaspora enabling credit card payment processing services through Stripe, you agree to provide Diaspora accurate and complete information about you and your business, and you authorize Diaspora to share any such information with Stripe, as well as transaction information related to your use of the payment processing services provided by Stripe. In all cases, standard credit card or other third-party processing fees apply in addition to any Service Fees. We are not responsible for the performance of any third-party credit card processing or third-party payment services.
Each User agrees to defend, indemnify and hold harmless Diaspora, its subsidiaries and affiliated companies, and their officers, directors, employees, contractors and agents from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees and costs) and all amounts paid in settlement arising from or relating to such User’s use of the Services, breach of these Terms, or violation of any laws or rights of any third parties including, without limitation, infringement of the intellectual property rights of any third parties. Diaspora may assume the exclusive defense and control of any matter for which Users have agreed to indemnify BackerKit and each User agrees to assist and cooperate with Diaspora in the defense or settlement of any such matters.
Diaspora has no fiduciary duty to any User. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. USE OF THE SERVICES IS AT USER’S OWN RISK.
(a) No Consequential Damages. Diaspora (including its affiliates, directors, officers, employees, agents, subcontractors or licensors) is not liable for any indirect, punitive, incidental, special, consequential or exemplary damages to any User. This exclusion applies to the fullest extent permitted by law in the applicable jurisdiction whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Diaspora has been advised of the possibility of such damage.
(b) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, DIASPORA’S MAXIMUM AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS SHALL NOT EXCEED THE LESSER OF ONE HUNDRED U.S. DOLLARS ($100.00) OR THE TOTAL AMOUNTS ACTUALLY PAID BY USER TO DIASPORA IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF SUCH LIABILITY. THIS LIMITATION ON LIABILITY WILL APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS.
(c) Limitation on Remedies. No action or claim of any type relating to the Services or these Terms may be brought or made by any User more than one (1) year after the earlier of (i) the date such User first has knowledge of the basis for the action or claim and (ii) the termination of these Terms as between such User and Diaspora.
(d) Waiver and Release. Users who are California residents, or residents of any jurisdiction that requires a specific statement regarding general waiver and release must, as a condition of using the Services, waive the applicability of California Civil Code Section 1542 for unknown claims which states: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN THEIR FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY THEM, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY." Each User hereby waives this section of the California Civil Code and any similar provision in law, regulation or code in any applicable jurisdiction that has the same effect or intent. Notwithstanding any provision of these Terms, for Users in a jurisdiction that has provisions specific to waiver or liability that conflict with any release of claims or limitation on liability set forth herein, then Diaspora’s liability is limited to the maximum extent possible by law. Specifically, solely in those jurisdictions not allowed, Diaspora does not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; (b) fraudulent misrepresentation or intentional misconduct; or (c) any liability which it is not lawful to exclude either now or in the future.
These Terms, the obligations and any rights and licenses granted hereunder, may not be transferred or assigned by any User for any reason without Diaspora’s express written consent, but may be freely assigned by Diaspora without restriction or consent. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Diaspora may terminate these Terms with respect to any User at any time and for any reason, in Diaspora’s sole discretion. Termination may result in the forfeiture and destruction of all information associated with any User Account. Users may terminate their User Account by following the instructions on the Services, but Diaspora may retain the User Account information after termination in accordance with regulatory, accounting, and legal compliance procedures. All provisions of these Terms that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Users agree that: (a) the Services shall be deemed solely based in California (the principal place of business and corporate headquarters of Diaspora); and (b) the Services shall be deemed to be passive activities that do not give rise to personal jurisdiction over Diaspora, either specific or general, in any jurisdiction other than California. This Agreement shall be governed by the law of the State of California, without respect to its conflict of laws principles.
Project Creators and other Users should be aware that many states impose charitable fund solicitation laws to guide direct or indirect fund solicitation activities in those states. While provisions vary state to state, these state laws typically include registration and reporting requirements. Diaspora provides a technology platform to allow Project Creators to connect with Backers and does not engage in any fund solicitation activities whatsoever. Users who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law.
Diaspora makes no representations, warranties or other assertions as to the potential tax-deductible status of any Pledge by a Backer to a charitable cause or to a Project whose purported recipient is a recognized 501(c)(3) or other tax-advantaged organization under the United States Internal Revenue Code. The listing of an organization via the Services does not necessarily mean that the organization has been deemed—or remains currently deemed—a charitable or tax-advantaged organization by the Internal Revenue Service.
Diaspora will cooperate with law enforcement authorities as required by law. Diaspora will cooperate with law enforcement agencies in any investigation of alleged illegal activity regarding the use of the Services when required by law.
Users agree Diaspora may provide notifications to such User via email, written or hard copy notice, or through conspicuous posting of such notice on our website. Users may be able to opt out of certain means of notification, or of receipt of certain types of notifications, however Users may not be able to opt out of all notifications without terminating their User Accounts.
We are always pleased to hear from our Users and welcome their comments or suggestions. When we refer to a "User Submission" in this paragraph, we mean: any submission, comment, suggestion, enhancement request, recommendation, correction or other feedback (including, but not limited to, ideas, products, or services and suggested changes) made either on the BackerKit platform or otherwise communicated to Diaspora about an existing product or service on, or a feature of, or a proposed addition to, the BackerKit platform. Users hereby grant to Diaspora and its affiliates a worldwide, perpetual, irrevocable, royalty-free, assignable, sublicensable, transferable license to use and incorporate into the Services any User Submission. Each User hereby acknowledges that products, services, and features developed by Diaspora or other Users might be similar or even identical to a User Submission received by Diaspora, and that Diaspora will not owe any royalty, attribution, or any other obligation to any User in connection therewith.
With regard to User Submissions:
(1) all such submissions are non-confidential and nonproprietary and will be treated as non-confidential and nonproprietary;
(2) Diaspora and its Users will have no express or implied obligation or liability of any kind concerning a User Submission, including, for example, regarding any use or disclosure of the submissions; and,
(3) Diaspora and its Users are entitled to unrestricted use or disclosure of the submissions for any purpose whatsoever, all without compensation to the User that submitted the User submission.
These Terms, along with Diaspora’s Privacy Policy (any other agreements entered into by Project Creators, are the entire agreement between each User and Diaspora regarding its subject matter. These Terms supersede all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible. Diaspora’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision..
Diaspora may alter these Terms at any time, so please review them frequently. If a material change is made, Diaspora may, but is not obligated to, notify Users via the Services, by email, by means of a notice on the Services, or by other means Diaspora determines to be appropriate.
If any person believes that its copyrighted work has been copied in a way that constitutes copyright infringement under the Digital Millennium Copyright Act of 1998 (the "DMCA") or that any User Content infringes such person's intellectual property rights and is accessible via the Services, please notify Diaspora at [email protected]. "Infringement" means the unauthorized or unpermitted use of copyrighted material or other intellectual property rights. For such complaint to be valid, such person (the "Complainant") must provide the following information in writing (the "Notice of Infringement"):
* a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
* identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
* identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Diaspora to locate the material.
* information reasonably sufficient to permit Diaspora to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted.
* a statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law.
* a statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted to the Diaspora DMCA agent(the "DMCA Agent") by mail and email to the following addresses:
Diaspora, Inc. (aka BackerKit)
Attention: DMCA Agent Maxwell Salzberg
1600 Bryant St #411447
San Francisco, CA 94141
Email: legal @BackerKit.com
If any User (the "Respondent") believes that its material has been removed or disabled by mistake or misidentification, such Respondent may file a written counter-notice (the "Counter-Notice") with the DMCA Agent, including the following information within five business days from receipt of the Notice of Infringement:
* a physical or electronic signature of the Respondent;
* identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
* a statement made under penalty of perjury that the Respondent has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
* the name, address, and telephone number of the Respondent, and a statement that the Respondent consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the Respondent 's address is outside of the United States, for any judicial district in which the service provider may be found, and that the Respondent will accept service of process from the Complainant or an agent of the Complainant.
Upon receipt of the Counter-Notice by the DMCA Agent, a copy of the Counter-Notice may be sent to the Complainant informing the Complainant that Diaspora, at its discretion, may replace the removed material or cease disabling it in not less than ten, nor more than 14, business days following receipt of the Counter-Notice, unless the DMCA Agent receives written notice from the Complainant that the Complainant has filed an action seeking a court order to restrain the Respondent from engaging in infringing activity relating to the unauthorized use of the material on the Service.
Diaspora WILL TAKE NO ACTION UPON ANY FAILURE TO PROVIDE THE INFORMATION OR OTHERWISE FOLLOW THE PROCESS OUTLINED ABOVE.
In accordance with the DMCA and other applicable laws, Diaspora has adopted a policy of terminating, in appropriate circumstances and at Diaspora’ s sole discretion, repeat infringers.
Users sending emails, directly or indirectly, in connection with BackerKit or Diaspora, agree, acknowledge, represent and warrant that all such emails, and procurement of email addresses in connection therewith, shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act and the Children's Online Privacy Protection Act.
All subpoenas must be properly served on Diaspora, preferably by mailing the subpoena to the attention of Maxwell Salzberg. Please find below the California address for Diaspora:
Attention: Maxwell Salzberg– Subpoena
Diaspora Inc., (AKA BackerKit)
1600 Bryant St #411447
San Francisco, CA 94141
legal @BackerKit.com
Diaspora does not accept service via email or fax and will not respond to subpoenas delivered by email or fax. However, Diaspora encourages duplicate copies of legal communications by email for convenience.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
The waiver or failure by Diaspora to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of Diaspora set forth in this Agreement are cumulative and are in addition to any rights or remedies Diaspora may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Any graphics or annotations provided in connection with this Agreement are for illustration purposes only and do not constitute part of the Agreement and changing a graphic does not qualify as a change to this Agreement. The list of prohibited projects and prohibited rewards (described above under the captions “Prohibited Projects” and “Prohibited Rewards”, respectively) is separately maintained, and modifications thereto will not qualify as a change to this Agreement.
Aug 23, 2022: Published new Terms of Service.
May 13, 2022: Published new Terms of Service.
June 12, 2017: Updated office address
May 25, 2016: Published new Terms of Service. Published Cookie Policy
March 15, 2013: Terms of Service published with permission from Termsfeed Terms of Service Agreement.
February 2013: Published Privacy Policy