As used herein, the subsequent terms have the following defined meanings:
1.1. Service, Mobile 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 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 Mobile Services to Company in accordance with these Terms and Conditions, provided that Company in a timely manner fulfils its all of its 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.
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. Company 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.
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.
5.1. Credit Card Authorization. Company hereby authorizes MC to charge the Credit Card (CC) provided by Company to MC for all recurring monthly fees and or charges outlined in this Agreement with the exception of credit card donations. 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 elect to be invoiced this will not apply and instead will be invoiced for fees and transactions whose invoice will be due upon receipt. MC may suspend services immediately upon non-payment by Company.
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. Should Company become insolvent or go bankrupt MC reserves the right to redistribute donations outstanding to any other company MC deems acceptable and eligible only after 3 failed attempts to remit funds Company.
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 minimum of one year and will auto renew for 12 months until cancelled.
6.2. Termination. One year minimum term, which auto-renews at the end of the Term. Cancellation requires (30) thirty days’ notice and is available only after 90 days of Effective Date. Cancellation requests must be made by speaking directly with a MobileCause Account Manager. You can reach an Account Manager at 888-661-8804 and ask for cancelations. 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.
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. 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. REPS 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.
Company and MC indemnify and hold each other harmless 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
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.