Terms:

AT YOUR USE OF AND ACCESS TO THE SERVICES (AS DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

(Last updated: April 1st, 2019)

These Terms of Use (these “Terms”) represent an agreement between you and Epik Wish, Inc. (“Epik Wish”) and contain the terms and conditions governing your use of and access to: (1) our website at www.epikwish.com and all of our other websites to which these Terms are posted (collectively, the “Website”); (2) our mobile applications to which these Terms are posted (collectively, the “Application”); and (3) any products, services, and applications made available through the Website or the Application (together with the Website and the Application, the “Services”). “You” and “your” mean the person who uses or accesses the Services. “We,” “us,” and “our” mean Epik Wish and its successors, affiliates, and assignees. As used in these Terms, “Epik Wish account” means the account you have created with us for the Services.
Your Consent. To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under these Terms and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to these Terms electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.

ACCEPTANCE OF TERMS

Please carefully review the Terms before using this Website or Services or accessing any data thereon. If you do not agree to these terms, you may not access or use this Website or the Services. 

To use this Website or the Services and to accept the Terms, you must be 1) a legal resident of the United States, 2) of legal age to form a binding contract with Epik Wish, 3) not prohibited by law from using the Website or the Services.

MODIFICATION OF THE TERMS

Epik Wish reserves the right to amend the Terms at any time and will notify you of any such changes by posting the revised Terms on the Website. You should check the Terms on the Website periodically for changes. All changes shall be effective upon posting. We will date the terms with the last day of revision. Your continued use of the Website or the Services after any change to this Terms constitutes your agreement to be bound by any such changes. Epik Wish may terminate, suspend, change, or restrict access to all or any part of this Website or the Services without notice or liability.

PRIVACY POLICY

Epik Wish maintains a Privacy Policy, and it details how we handle and protect data. We fully incorporate our Privacy Policy into this Agreement. Note that we reserve the right to update the Privacy Policy at our discretion, and that any changes made to our Privacy Policy are effective when the updates are live on the Site.

SERVICES DESCRIPTION:

The Services are offered as a platform to users of the Services, which may include Families and donors (each defined herein) and other registered users of the Services (which may include users who simply “like” savings goals, experience suggestions, or experience ideas, or experiences or otherwise interact with the Platform or Services). Among other features, the Services are designed to allow a user (a “Family” or “Event Organizer”) to post their child’s savings goals, charity suggestions, or gift ideas, or experiences to the Platform to accept financial gifts or monetary Gifts (“Gifts”) from those registered or guest users (“Donors”) that are contributing to an Epik Wish event (“Event”) they do not have ownership of themselves. For purposes hereof, the term “Family” shall also be deemed to include any individual(s) designated as a beneficiary of an Epik Wish Event. Donors will pay a credit card processing fee, if applicable.

WE ARE NOT A BROKER, FINANCIAL INSTITUTION, CREDITOR OR CHARITY: 

The Services are administrative platforms only. Epik Wish facilitates the Epik Wish Event and permits Donors to make Gifts to these Events. Epik Wish is not a broker, agent, financial institution, creditor or 501(c)(3) nonprofit corporation.

All information and content provided by Epik Wish relating to the Services is for informational purposes only, and Epik Wish does not guarantee the accuracy, completeness, timeliness or reliability of any such information or content. No content is intended to provide financial, legal, tax or other professional advice. Before making any decisions regarding any Events, charities, Gifts, Donors, or any information or content relating to the Services, you should consult your financial, legal, tax or other professional advisor as appropriate. You acknowledge that all information and content accessed by you using the Services is at your own risk.

Epik Wish has no control over the conduct of, or any information provided by, a User and hereby disclaims all liability in this regard to the fullest extent permitted by applicable law. We do not guarantee that an Event will obtain a certain amount of Gifts or any Gifts at all. We do not endorse any Event, User, or cause and we make no guarantee, express or implied, that any information provided through the Services is accurate. We expressly disclaim any liability or responsibility for the outcome or success of any Event. You, as a Donor, must make the final determination as to the value and appropriateness of contributing to any User or event.

The Epik Wish Platform is offered to help accept financial gifts or monetary gifts. Epik Wish merely provides the technology to allow a Family to connect with Donors. The existence of the Services is not a solicitation of Gifts by Epik Wish, and Epik Wish does not engage in any solicitation activities, or consult on the solicitation of contributions from the public, on behalf of any individual, entity, or organization. By using the Services, you understand and agree that Epik Wish shall not be responsible for the use of your Gifts or the amount of funds raised for the User or event.

EVENT ORGANIZER:

You, as an Event organizer, represent, warrant, and covenant that (i) all information you provide in connection with an Event or beneficiary is accurate, complete, and not likely to deceive reasonable Users; (ii) all Gifts contributed to your Event will be used solely as described in the materials that you post or otherwise provide; (iii) if you withdraw Gifts believed by reasonable Donors to be gifted on behalf of someone other than you (i.e., the Beneficiary), all Gifts will be given to and/or spent on behalf of the Beneficiary; (iv) if you add a Beneficiary through the Services, you relinquish control of the Gifts, including the ability to issue refunds; (v) you will not infringe the rights of others; (vi) you will comply with all relevant and applicable law and financial reporting obligations, including but not limited to laws and regulations relating to registration, tax reporting, political contributions, and asset disclosures for your project; and (vii) to the extent you share with us any personal data of any third party for any purpose, including the names, email addresses, images, videos, and phone numbers of your personal contacts, you have the authority (including any necessary consents), as required under applicable law, to provide us with such personal data and allow us to use such personal data for the purposes for which you shared it with us. You authorize Epik Wish, and Epik Wish reserves the right to, provide information relating to your Event to Donors, beneficiaries of your Event or law enforcement, and to assist in any investigation thereof.

Registration data and certain other information about you are governed by these Terms of Service and our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Services, with or without registering. In addition, if you are under the age of majority in your jurisdiction (typically 18 or 19 years of age), you may use the Services, with or without registering, only with the approval of your parent or guardian. Certain aspects of our Services may also require you to register with, and agree to the terms of, third-party service providers (e.g., payment processors), with whom Epik Wish has entered into contracts, in order to be able to benefit from their services. If Epik Wish or one of our payments processors at any time discovers that the information you provided about you or the purpose of your Event is incorrect or violates any of these Terms of Service or their terms of service, the Services may be suspended and/or terminated with immediate effect and fines may be applied by the relevant authorities which will in all such cases be payable by you. You acknowledge and agree that the use of third party payment processors are integral to the Services and that we may exchange information with such third parties in order to facilitate the provision of Services as set out in our Privacy Policy.

DONORS:

All Gifts are at your own risk. When you make a Gift through the Platforms, it is your responsibility to understand how your money will be used. Epik Wish is not responsible for any offers, promises, rewards or promotions made or offered by Users or Events. We do not and cannot verify the information that Users or Events supply, nor do we represent or guarantee that the Gifts will be used in accordance with any purpose prescribed by a User or Event or in accordance with applicable laws. Notwithstanding the foregoing, we take possible fraudulent activity.  

Donors are not permitted to impose restrictions on the use of Gifts by a charity or Event organizer. To the extent that a Gift is made in response to an appeal or suggestion by an Event organizer, any such directions shall constitute non-binding recommendations and the Event organizer shall have full discretion to determine how all Gifts will be used.

Epik Wish makes no representation as to whether all or any portion of your Gifts, including, if any, Payment Processor Fees, are tax deductible or eligible for tax credits. Epik Wish will have no liability for any claim by any federal, state, provincial, territorial, local or any other tax authority with respect to the characterization on any applicable tax return of any Gifts by you, any User or any charity. You should consult your tax advisor as to the amount of your Gift that is tax deductible or eligible for tax recognition, having regard to (among other things) the tax status of the recipient of any Gift in any relevant jurisdiction.

In order to contribute to Epik Wish, a Donor will be required to provide Epik Wish information regarding its credit card or other payment instrument. You, as a Donor, represent and warrant to Epik Wish that such information is true and that you are authorized to use the payment instrument. You agree that a certain minimum Gift Donation amount may apply, and that all gift donation payments are final and will not be refunded unless Epik Wish, in its sole discretion, agrees to issue a refund.  Donors can contribute with an invitation of future Gift if a parent or family organizer creates an Epik Wish account to accept Gifts. 

FEES:

Epik Wish does not charge any upfront fees for creating an Epik Wish Account.  However, industry-standard payment processor fees apply (hereinafter and on the website referred to as “Payment Processor Fees”).   A Donor contributing to an Epik Wish Event that they do not own or manage may be responsible for additional Payment Processor Fees added to each Gift Donation. Donors acknowledge that by contributing a gift donation to an Epik Wish event, the Donor is agreeing to any and all applicable terms and conditions set forth by our payment partners, in addition to these Terms of Use, including Stripe’s terms of service .

Fees are charged to the Donor as a convenience fee for ACH, credit and debit card processing, in addition to the Gift Donation which is directly payable to the parent or family organizer’s Stripe account. We reserve the right to change Epik Wish’s Fee pricing from time to time. If Epik Wish does change its Fees, Epik Wish will provide advance notice of the change on the Platform or in email to you, at Epik Wish’s option. Your continued use of the Services after the Fee change becomes effective constitutes your acceptance of the updated Fees. All Fees referred to in these Terms of Use are exclusive of Value Added Tax, Goods and Services Tax and any other taxes, where applicable.

TIPS:

As noted above, Epik Wish does not charge any fees. You may, however, choose to make a voluntary payments referred to as ‘Tips’ or ‘Donations’ in appreciation of the Service provided.

Public Display of Information and Donations: 

Some of your activity on and through the Services is public, such as content you post publicly on the Platforms (including descriptions, texts, music, sound, information, data, software, graphics, comments, photos, videos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients) (“User Content”). Additionally, user profile information, including your first and last name, public email address, organization, personal biography, and other information you enter in connection with your user profile may be displayed to other users to facilitate user interaction within the Services. For example, as an Event organizer, you might post your personal data – such as information about a recent hospital stay – which data might be considered sensitive data. In addition, as a Donor, you have the option to publicly display your Donation for all to see, including on search engines (like Google and Yahoo). Please remember that if you choose to provide information using certain public features of the Services, then that information is governed by the privacy settings of those particular features and may be publicly available. Individuals reading such information may use or disclose it to other individuals or entities without our knowledge and without your knowledge, and search engines may index that information. We therefore urge you to think carefully about including any specific information you may deem private in content that you create or information that you submit through the Services. 

Third-Party Communications: 

If you use any feature of the Services that allows you to communicate with third parties (such as to refer a third party to the Services or to communicate with them regarding an Event or a donation), either by submitting Third-Party data to the Services or otherwise permitting the Services to automatically access Third-Party data in your possession, you acknowledge and agree that you have the authority of the relevant Third-Party for us to access and use the relevant Third-Party Data and that you have notified these third parties and informed them how their information is collected and used by Epik Wish to provide the Services. We reserve the right to identify you as the person who has made the referral in any messages that are sent to them. We use Third-Party data to (a) contact such third party using the Third-Party data provided, and/or (b) provide you with an editable template message designed to facilitate communications between you and such third party through the Services. In addition to sending the foregoing communications we may also send reminders or related messages to you and to third parties on your behalf from time to time where permitted by applicable law. In each case, any such communication sent to third parties using Third-Party data will provide a means to “opt out” of receiving further communication of the same nature.

OTHER REQUIREMENTS:

In order to use the Services, you must: (a) accept and agree to these Terms and our Privacy Policy; (b) register with us on the Website or the Application; (c) be a U.S. citizen (or a legal U.S. resident) of at least 18 years of age (or older if you reside in a state where the majority age is older); (d) register or connect for an account with Stripe; (e) provide all information requested by us, such as your name, email address, mobile device number, and such other information as we may request from time to time (collectively, “User Information”). You represent and warrant that all User Information you provide us from time to time is truthful, accurate, current, and complete, and you agree not to misrepresent your identity or your User Information. 

By using the Services and providing User Information to us, you automatically authorize us to obtain, directly or indirectly through our third-party service providers and without any time limit or the requirement to pay any fees, information about you and your Bank Account from the financial institution holding your Bank Account and other third-party websites and databases as necessary to provide the Services to you. For purposes of such authorization, you hereby grant Epik Wish and our third-party service providers a limited power of attorney, and you hereby appoint Epik Wish and our third-party service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place, and stead, in any and all capacities, to access third-party websites, servers, and documents; retrieve information; and use your User Information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN EPIK WISH OR OUR THIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM SUCH THIRD-PARTY WEBSITES, EPIK WISH AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. You agree that other third parties shall be entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. You understand and agree that the Services are not endorsed or sponsored by any third-party account providers accessible through the Services. We make no effort to review information obtained from other third-party websites and databases for any purpose, including, but not limited to, accuracy, legality, or non-infringement. As between Epik Wish and our third-party service providers, Epik Wish owns your confidential User Information. The information you provide us is subject to our Privacy Policy.

RESTRICTIONS

You may only use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. Your use of the Services must comply with all applicable law. If your use of the Services is prohibited by applicable law, then you are not authorized to use the Services. We are not responsible if you use the Services in any manner that violates applicable law. Important notice: Epik Wish reserves the right to suspend an account at anytime, and without notice, if the account has been flagged as suspicious or fraudulent for any reason by our security team. Suspended accounts will require investigation. Those with pending balances will be notified and further security measures will be taken to verify identity.

You agree not to authorize any other person or entity to use your user name and password or mobile device to access the Services. You are solely responsible for the maintenance, confidentiality, and security of your username, password, and other User Information. Except as otherwise required by applicable law, you are responsible for all transactions and other activities authorized or performed using your username and password or mobile device, whether authorized or unauthorized by you. Except as otherwise expressly stated in these Terms or required by applicable law, we are not responsible for any losses arising out of the loss or theft of your User Information or your mobile device or from unauthorized or fraudulent transactions associated with your Bank Account or your Epik Wish Account. If you suspect or become aware of any unauthorized activity or access to your username, password, or mobile device, you must contact us immediately at help@epikwish.com.

We offer the use of Services and the features, information, materials, and content provided and depicted through the Services (collectively, “Content”) solely for your personal use for the purposes described therein and in these Terms. Any and all other uses are prohibited. You may not restrict or inhibit any other person from using or enjoying the Services or Content.

The Services and Content are protected by copyright, trademark, patent, and other intellectual property laws. We expressly reserve all rights and remedies under applicable law. Except as expressly provided by these Terms or with our prior written consent, you may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit any Content in any form by any means. Without limiting the foregoing, you agree not to (and not to allow any third party to): (a) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Services or copy any Content, except as expressly authorized by us; (b) take any action that imposes or may impose (in our sole determination) an unreasonable or a disproportionately large load on the Services or our infrastructure; (c) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (d) rent, lease, copy, provide access to, or sublicense any portion of the Services or Content to a third party; (e) use any portion of the Services or Content to provide, or incorporate any portion of the Services or Content into, any product or service provided to a third party; (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Services or Content; (g) modify the Services or Content or create any derivative product from any of the foregoing; (h) remove or obscure any proprietary or other notices contained in the Services or Content; (i) use the Services or Content in any way that is illegal, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, as we may determine in our sole discretion; (j) jeopardize the security of your Epik Wish Account or any other person’s Epik Wish Account (such as allowing someone else to use your username and password to access the Services); (k) attempt, in any manner, to obtain the username, password, account, or other security information from any other user of the Services; (l) violate the security of any computer network or crack any passwords or security encryption codes; or (m) run Maillist, Listserv, any form of auto- responder or “spam,” or any processes that run or are activated while you are not logged in to access the Services. We may, but are not obligated to, monitor your use of the Services and Content.

We do not grant you any licenses, express or implied, to our intellectual property or the intellectual property of our licensors, except as expressly stated in these Terms. We and our third-party licensors retain all right, title, and interest in and to the Services, Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights. The Services may permit you to submit content, send emails and other communications, and provide other information for publication or distribution to third parties (collectively, “User Content”). Any User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, or any form of “spam.” If you submit User Content, and unless we indicate otherwise, you grant us a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. We take no responsibility and assume no liability for any User Content submitted by you or any other user or third party. To the extent permitted by applicable law, we may, in our sole discretion and without liability to you, terminate (or suspend access to) your use of the Services, Content, or your Epik Wish Account for any reason, including, but not limited to, your breach of these Terms.

UNAUTHORIZED ACCESS

If your mobile device is lost or stolen or if you suspect someone has gained unauthorized access to your username or password, you must contact us immediately at help@epikwish.com. In order to take any action, you will need to provide certain User Information so we can verify your identity.

WARRANTY DISCLAIMER

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR THIRD-PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE AND OUR THIRD-PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR OUR THIRD-PARTY SERVICE PROVIDERS THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT EPIK WISH, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) THE PERFORMANCE OF THE SERVICES OR THE INABILITY TO USE THE SERVICES; (B) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THESE TERMS, THE SERVICES, OR CONTENT; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF $100 OR THE AMOUNT TRANSFERRED TO YOUR STRIPE ACCOUNT BY DONOR(S); OR (D) ANY EVENT BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. At our request, you agree to defend, indemnify, and hold harmless Epik Wish, its affiliates, and its and their respective employees, officers, directors, agents, and third- party service providers from and against any and all claims, suits, liabilities, damages (actual and consequential), losses, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third-party claims relating to your use of the Services, violation of these Terms, applicable law or any third-party rights, or your fraud or willful misconduct. Such indemnified parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

Assignment. You may not transfer, assign, or delegate these Terms or your rights or obligations hereunder or your Epik Wish Account in any way (by operation of law or otherwise) without our prior written consent. To the extent permitted by applicable law, we may transfer, assign, or delegate these Terms and our rights and obligations hereunder without your consent. Third-Party Beneficiary. You agree that our third-party services providers are third- party beneficiaries of the applicable provisions of these Terms, with all rights to enforce such provisions as if such service providers were a party to these Terms.

Governing Law. These Terms are made under and will be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

DISPUTE RESOLUTION

BY BINDING ARBITRATION JURY TRIAL WAIVER: CLASS ACTION WAIVER. For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean Epik Wish and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Services or these Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. This Section will survive termination of your Epik Wish Account and these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (a) or (b) of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence. You may opt out of this arbitration provision for all purposes by sending an arbitration opt out notice to legal@epikwish.comwithin 60 days of the date of your electronic acceptance of the terms of this agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this arbitration provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.

Informal Dispute Resolution

f a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to legal@epikwish.com at any time.

MISCELLANEOUS

You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for ourselves. The failure of either you or us to exercise, in any way, any right herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms will otherwise remain in full force and effect and enforceable.