As used herein, the subsequent terms have the following defined meanings:
1.1. Service, Mobile Service, Fundraising Service, and Platform are defined as the current solutions listed on the MobileCause (MC) website, www.mobilecause.com, including Fundraising, Data Service, Communication Service and Payment Service.
1.2. Company means the organization that accepted these Terms and Conditions and is a client of MC using the Service for the purposes of fundraising and communication.
1.3. Campaign means a particular offering or program by Company as specified in an Exhibit or Program Brief whereby MC will deliver Messages to End Users.
1.4. Content means data, application, text, audio, video, music, graphics, photographs, artwork and other materials in digital electronic form contained in a Message.
1.5. Messaging Service or Messages means the services used for distributing messages to and from End Users on behalf of the Company.
1.6. Disclosing Party means either party who discloses information.
1.7. Effective Date means the date on which these Terms and Conditions were accepted by Company.
1.8. End User or Subscriber means any mobile phone subscriber of an Operators network who is registered with or has otherwise authorized Messages to and from Company.
1.9. End User Information means any demographic or personal information, identifying information, data or records relating to End User and/or their use of the Content and/or Messages.
1.10. Accepted means that Company agreed to these Terms and Conditions to govern the Service resulting in an Agreement between MC and the Company.
1.11. Intellectual Property Rights means all intellectual property rights throughout the world, whether existing under intellectual property, unfair competition or trade secret laws, or under statute or at common law or equity, including but not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents, inventions, designs, logos and trade dress, moral rights, mask works, rights of personality, publicity or privacy, and any other intellectual property and proprietary rights; (ii) any application or right to apply for any of the rights referred to in this clause; and (iii) any and all renewals, extensions and restorations thereof, now or hereafter in force and effect.
1.12. Operator means the wireless network carrier operating in a particular country.
1.13. Payment Service means the services used for collecting and distributing funds collected from End User on behalf of Company as described in section 5.
1.14. Short Code means a unique code that enables an Operator, Third Party Provider and/or MC to identify the intended recipient of a Message and route the Message appropriately.
1.15. SMS is a text messaging service component of phone, web, or mobile communications systems that use standardized communications protocols for devices to exchange short text messages as a means of sending messages of up to 160 characters.
1.16. Term means as set forth in Section 6 of this Agreement.
1.17. Third Party Provider means a third party involved with the distribution, transmission, and facilitation of the Messages.
1.18. Vendor and Affiliate Relationships mean relationships between MC and its aggregator, foundation, carrier or other vendors and affiliates which MC selects in connection with providing the Service.
1.19. Uncollectible means any pledged donation that billing failed or charges were reversed.
2. MC SERVICES
2.1. Data Service. MC will provide Fundraising Services to Company in accordance with these Terms and Conditions. Both parties agree to fulfill each of its respective obligations hereunder: (a) Provide Company with reasonable technical information and/or specifications for the Campaign; (b) Format content, as specified by Company, into Messages for distribution to End Users.
2.2. Donation Service. MC will provide Donation Services to Company in accordance with the terms and conditions stated herein: (a) MC shall remit all monies due to Company collected as a result of any fundraising Campaign.
2.3 Scope of Services. MC and Company hereby agree that MC is not being engaged to provide commercial fundraising, fundraising counsel, or any other direct or indirect fundraising services to Company or to manage Company’s fundraising activities, campaigns, or events. Any such commercial fundraising, fundraising counsel, or management of any such activities, campaigns, or events will be done by Company or by other parties engaged by Company for such purposes.
3. COMPANY’S OBLIGATIONS
3.1. Subject to the terms and conditions herein, Company grants to MC a worldwide, sub-licensable, revocable, limited, royalty-free right and license to (i) send Content and/or Messages to End Users; (ii) access and use End User Information created in connection with this Agreement and Service provided; and (iii) use, reproduce, distribute, and display Company’s Intellectual Property in connection with this Agreement. Both parties shall be responsible for the procurement of any and all licenses, approvals, qualifications, permits or certificates required in connection with the Content, Messages or Campaign. Notwithstanding the foregoing, MC agrees it shall only use Company’s Intellectual Property consistent with instructions or documentation provided to MC by Company.
4. INTELLECTUAL PROPERTY
4.1. This Agreement shall not operate as an assignment to Company of any source code, Short Code, or any other Intellectual Property Rights belonging to MC and MC shall retain all ownership of and/or other interest in any of MC’s Intellectual Property Rights. MC acknowledges and agrees that it has no property interest in, and may assert no lien on or right to withhold from Company, any data it receives from, receives address too, or stores on behalf of Company.
5.1. Credit Card Authorization. Company hereby authorizes MC to charge the Credit Card (CC) provided by Company to MC for all recurring monthly or annual payments and/or charges outlined in this Agreement with the exception of credit card donations. All Agreements are annual and may be paid monthly or annually in advance of service. Monthly payments are by credit card only. Monthly payments require a three month payment in advance and then monthly thereafter. Annual payments are made by credit card or by invoice if approved by MC. All CC donations will be processed and remitted by MC, and donations charges as outlined in this agreement will be deducted prior to disbursement to Company. Should the Company be authorized to be invoiced, this will not apply and instead will be invoiced for fees and transactions whose invoice will be due within ten (10) days from receipt of invoice by Company. MC may suspend services immediately upon non-payment by Company. Company may dispute any invoiced amount by providing written notice to MC within ten (10) days of invoice receipt by Company. Company is not obligated to pay any invoiced amount that is the subject of a good faith dispute until such dispute is resolved, provided that Company pays any undisputed invoiced amount. Once an invoice dispute is resolved, the invoice shall be paid within ten (10) days.
5.2. Remittance Details. MC will be responsible for remitting to Company all donations collected for Company. Donations fulfilled by CC will be paid out to Company by check, less applicable fees, twice per month for the periods of the 1st to 15th day and 16th to 30th day of the month. Three business days are required for processing at the close of each period. Contracted transaction fees due on any CC donation are deducted before distribution of donations to the Company. If Company chooses and is approved for a merchant and payment services account, all funds will be directly deposited from payment processor into the designated Company bank account with transaction fees deducted.
5.3. Records and Inspection Rights. As it relates to this Agreement both parties shall keep and maintain at its regular place of business a record of collected and remitted donations in addition to Uncollectible amounts at all times during the Term and for three (3) years following termination of this Agreement.
5.4. Uncollectible. In the event MC receives notice of a disputed CC charge and the disputed amount is reversed by the CC company, the disputed amount will be deemed Uncollectible and funds will not be remitted to Company for said donation. If remittance to Company of said donation has occurred, then Company agrees to refund Uncollectable amounts or allow MC the right to offset any Uncollectible against future monies owed to Company. If no additional monies are owed to Company, MC will invoice Company for any such Uncollectible. Such amounts are due and payable upon Company’s receipt of the invoice.
6. TERM AND TERMINATION
6.1. Term. This Agreement shall become effective upon the Effective Date of the Agreement for a term of one year and will auto renew for successive one year terms until canceled.
6.2. Termination. This agreement is subject to a one year term. Company can terminate this Agreement upon 10 days notice to MC any time after the initial term. There are no refunds for any amounts paid. Cancellation notifications must be made by speaking directly with a MobileCause representative. Company can reach a representative during normal business hours, M-F 9am-5pm PST, by calling (888) 661-8804 and selecting 2 to speak with a representative. Either party may terminate this Agreement immediately upon written notice if the other party should become bankrupt or enter into liquidation proceedings. In case of material breach hereunder, either party has the right to terminate this Agreement immediately after written notice to the other party specifying the breach if the breach has not been cured within thirty (30) days after receipt of written notice specifying such breach. Provided, however, that MC may suspend or terminate this Agreement immediately if, in MC’s discretion, such action is required to meet the requirements or demands of a Vendor, an Operator, or a government agency. On termination of this Agreement those provisions of this Agreement capable of surviving termination shall continue in full force and effect. Any such termination shall only occur if the issue has not been cured within thirty (30) days after receipt of written notice specifying such issue. On termination of this Agreement those provisions of this Agreement capable of surviving termination shall continue in full force and effect. In the event of termination of this Agreement, MC shall make available to Company the Company’s data in a portable, non-proprietary format, for a period of at least ninety (90) days after termination notice.
7. CONFIDENTIAL INFORMATION
7.1. Confidential Information. Each party (Recipient) acknowledges that in the course of MC performing the Services each party may have access to certain Confidential Information of the other party (Disclosing Party). Donor information will never be sold or shared. MC reserves the right to publish content to promote successful campaigns. Customer may request removal of content at any time.
7.2. Duties. Recipient shall maintain the Confidential Information as confidential, and will not use it in any way, for itself or for any third party, except as required to achieve the purposes of this Agreement, nor disclose to any third party (except to Recipient’s employees, consultants, contractors, attorneys, accountants and other advisors who have a need to know such Confidential Information for purposes of Recipient’s performance of its obligations under this agreement).
7.3. Exceptions. MC is authorized to disclose confidential information as required to comply with applicable laws or governmental regulations.
7.4 Publicity. MobileCause reserves the right to publish case studies and press releases based on successful customer campaigns. Exact donation totals and actual donor data will never be shared without consent.
7.5. Ownership of Confidential Information. The Disclosing Party is and shall remain the exclusive owner of Confidential Information and all Intellectual Property Rights therein. No license or conveyance of any such rights to the Recipient is granted or implied under this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1. Necessary Authority. Each party hereby represents and warrants that it has the full power, ownership interests and the right to enter into this Agreement.
8.2. MC Representations. MC hereby represents and warrants that (i) the Services will function in material compliance with this Agreement; and (ii) it shall perform all Services in a good and workmanlike manner, and (iii) has obtained the End Users express authorization to charge their CC. The foregoing shall not be construed as a warranty that the Services will function without error.
8.3. Company Representations. Company hereby represents and warrants to MC and its Operators and Third Party Providers that Company will comply with all applicable charitable solicitation laws and consumer protection laws/regulations.
8.4. Exclusive Remedies. Company’s sole and exclusive remedy and MC’s entire liability shall be, at MC’s discretion, either: (a) correct the error that caused the breach of warranty; (b) re-perform the Services; or (c) in the event that MC is unable to cure such breach, termination of this Agreement and return of the fees paid for such nonconforming Services. MC does not warrant and shall not incur liability for the following: downtime, messaging delays, data loss or corruption, any Operator or Third Party Provider errors, delays in Operator or Third Party Provider payment or billing, End User errors, payment or activity, and issues in technical CC processing.
8.5. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ALL MATERIALS, CONTENT, SERVICES, AND DELIVERABLES PROVIDED BY ONE PARTY TO THE OTHER PARTY HEREUNDER ARE PROVIDED AS IS.THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRNGEMENT.
9.1. Each party agrees to indemnify, defend and hold harmless the other party, its trustees, officers and employees (individually, an “Indemnified Party”, and collectively, the “Indemnified Parties”) from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by either party as a result of any third party claim against either party pertaining to the content on the Service, for any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to each other, or for any violation of any of the terms of this Service Agreement.
10. LIMITATION ON LIABILITY
10.1. MOBILECAUSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FOR ANY AND ALL DAMAGES THAT COMPANY MIGHT INCUR (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED AGGREGATE FEES COLLECTED BY OR PAYABLE TO MOBILECAUSE PER THIS AGREEMENT. WITHOUT LIMITATION OF THE FOREGOING, MOBILECAUSE SHALL NOT (A) HAVE ANY LIABILITY TO COMPANY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), REGARDLESS OF THE THEORY OR LIABILITY (INCLUDING TORT, CONTRACT AND NEGLIGENCE), AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (B) BRING ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
11. FORCE MAJEURE
11.1. No party shall be liable for a failure or delay in performing any of its obligations under this Agreement if, but only to the extent that such failure or delay is due to causes beyond the reasonable control of the affected party, including (a) acts of God; (b) fire, explosion, or unusually severe weather; (c) war, terrorism, invasion, riot or other civil unrest; (d) governmental laws, orders, restrictions, actions, embargoes or blockages; (e) national or regional emergency; and (f) injunctions, strikes, lockouts, labor trouble or other industrial disturbances; provided that the party affected shall promptly notify the other of the force majeure condition and shall exert reasonable efforts to eliminate, cure or overcome any such causes and to resume performance of its obligations as soon as possible. Any failure or delay in performing any obligation under this Agreement as a result of failure or performance abnormality in software, hardware, or firmware, shall not be, or be deemed to be, the result of force majeure.
12. PCI COMPLIANCE WARRANTY
12.1. MC represents and warrants that for the life of the agreement, the software and services used for processing transactions shall be compliant with the then-current standards established by the PCI Security Standards Council.
13. GOVERNING LAW
13.1. This Agreement shall be construed and enforced in accordance with the laws of California, without regard to its conflict of law rules.
14. ENTIRE AGREEMENT
14.1. This Agreement constitutes the entire agreement between the parties and no other agreements, oral or written, have been entered into with respect to the subject matter of this Agreement. This Agreement supersedes all prior agreements, negotiations, and communications of whatever type, whether written or oral, between the parties with respect to the subject matter of this Agreement. This Agreement may be amended at any time by mutual agreement of the parties without additional consideration, provided that, before any amendment shall become effective, it shall be reduced to writing and signed by the parties.