Customer Terms and Conditions of Platform Use
Updated September 21, 2015
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING OR USING MOBILECAUSE’S PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE MOBILECAUSE’S PLATFORM.
These terms and conditions of use (“Platform Terms”) apply to your access to, and use of, the platform of MobileCause, Inc. (“MobileCause”) that allows you to receive donations, collect data from forms, and send text messages to End Users via mobile, tablet and PC devices (the “Platform”). These Platform Terms do not alter in any way the terms or conditions of any other signed agreement you may have with MobileCause, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the Platform on behalf of any entity, you represent and warrant that you are authorized to accept these Platform Terms on such entity’s behalf, and that such entity agrees to indemnify you and MobileCause for violations of these Terms. The services contained on or provided in connection with the Site, the Platform, or the MobileCause Materials shall be collectively considered the “Services.”
To the full extent permitted by applicable law, MobileCause reserves the right to change or modify any of the terms and conditions contained in the Platform Terms or any policy or guideline of the Platform, at any time and in its sole discretion by providing notice the Platform Terms have been modified. Such notice may be provided by sending an email, by posting a notice on MobileCause’s proprietary website located at www.mobilecause.com (the “Site”), by posting the revised Platform Terms on the Site and revising the date at the top of these Platform Terms or by such other form of notice as determined by MobileCause. Your continued use of the Platform following the posting of the revised Platform Terms or other notice of such changes will constitute your acceptance of such changes or modifications. Otherwise, any changes or modification will be effective within thirty (30) days of the posting of the revisions on the Site unless you notify MobileCause within such thirty (30) days that you do not agree to the changes and stop using the Platform. Therefore, you should review these Platform Terms whenever you access the Site and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your use of the Platforms.
If you have any question regarding the use of the Platform, please refer first to the Frequently Asked Questions on the Site. All other questions or comments about the Platform or its contents should be directed to email@example.com.
a. Credit Card and Payment Authorization for use of Platform. You hereby authorize MobileCause to charge the credit card or bank account provided by you upon registration (and as may be updated by you from time to time) for all recurring fees and or charges for the use of the Platform and receipt of the Services (the “Services Fees”). All Agreements are annual and paid annually in advance unless otherwise approved by MobileCause in Exhibit A of agreement received in your welcome email. MobileCause may suspend your account and access to the Platform immediately upon non-payment by you of the applicable Services Fees.
b. Remittance Details. 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 credit card processing fees invoiced monthly. An application for setting up a no additional cost merchant account is included in your welcome email. For all other accounts MobileCause will be responsible for remitting to you all donations collected for your campaigns under an aggregated account showing “Donation” on End User credit card statements. These donations fulfilled by credit card will be paid out to you by check, less applicable fees including the Processing Fees, twice per month for the periods of the 1st to 15th day and 16th to 30th day of the month (each, a “Donation Period”). MobileCause will retain a processing fee (the “Processing Fee”) of 2.5% of all donations to you. Three business days are required for processing at the close of each Donation Period. Should you become insolvent or go bankrupt MobileCause reserves the right to refund or redistribute donations outstanding to any other entity MobileCause deems acceptable and eligible, but only after 3 failed attempts to remit funds to you at the Registration Data (as defined below) that you provide to us.
c. Records and Inspection Rights. As it relates to these Platform Terms, 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 while you use the Platform and for three (3) years following termination of your access to the Platform.
d. Uncollectible. In the event MobileCause receives notice of a disputed credit card charge and the disputed amount is reversed by the end user’s credit card company, the disputed amount will be deemed uncollectible and funds will not be remitted to Company for the applicable donation. If remittance to Company of said donation has occurred, then you agree to allow MobileCause to offset any uncollectible amounts against future amounts owed to Company. If no additional money is owed, MobileCause will invoice Company for any such uncollectible amounts. Such amounts are due and payable upon your receipt of the invoice.
e. Communication with Donors. You are responsible for providing your donors with any appropriate acknowledgment of their donation, and can set up automated tax receipts on the Platform as an option at your discretion. An automated receipt acknowledgement will be emailed and/or sent via text message upon successful completion of a donation to End User.
3. Copyright and Limited License
Unless otherwise indicated on the Site, the Site, the Platform, and all content and other materials on the Site and the Platform, including, without limitation, MobileCause’s logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “MobileCause Materials”) are the proprietary property of MobileCause or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Platform and electronically copy (except where prohibited without a license) and print to hard copy portions of the MobileCause Materials for your informational, non-commercial and personal use only. Such license is subject to these Platform Terms and does not include: (a) any resale of the Platform or the MobileCause Materials therein; (b) the distribution, public performance or public display of any MobileCause Materials except as expressly provided in these Platform Terms; (c) modifying or otherwise making any derivative uses of the Platform and the MobileCause Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Platform, the MobileCause Materials or any information contained therein, except as expressly permitted on the Platform; or (f) any use of the Platform or the MobileCause Materials other than for its intended purpose. Any use of the Platform or the MobileCause Materials other than as specifically authorized herein, without the prior written permission of MobileCause, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Platform Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
4. Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, MobileCause has adopted a policy of terminating, in appropriate circumstances and at MobileCause’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. MobileCause may also at its sole discretion limit access to the Platform and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
5. Copyright Complaints
If you believe that anything on the Platform infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement: Gerard Mackey
Full Address of Designated Agent to Which Notification Should be Sent: 27001 Agoura Road, Suite 350A, Calabasas, CA 91302
Telephone Number of Designated Agent: (888) 661-8804
E-Mail Address of Designated Agent: firstname.lastname@example.org
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“MobileCause,” MobileCause’s logos and any other MobileCause product or service name or slogan contained in the Platform are trademarks of MobileCause, and may not be copied, imitated or used, in whole or in part, without the prior written permission of MobileCause or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “MobileCause” or any other name, trademark or product or service name of MobileCause without our prior written permission. In addition, the look and feel of the Platform, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of MobileCause and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Platform are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
MobileCause agrees that Company owns the copyright in all copyrighted or copyrightable works or data provided or created by Company. Nothing in this Agreement shall be deemed an assignment or transfer of Company ownership rights in Company materials provided to MobileCause for use on Platform.
You acknowledge and agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, regarding the Site, the Platform, MobileCause or MobileCause’s products or services that are provided by you in the form of email or other submissions to MobileCause are non-confidential and shall become the sole property of MobileCause. MobileCause shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
8. User Content and Conduct
The Platform will provide you with the opportunity to create your own fundraising campaigns, collect data through forms and send messages to actual or potential supporters or donors (“User Content”). You are solely responsible for your use of these features and use them at your own risk. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Platform any of the following:
a. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, false, misleading, fraudulent or otherwise objectionable;
b. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New York Stock Exchange, the American Stock Exchange or the NASDAQ;
c. User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
d. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
e. Unsolicited promotions, political campaigning, advertising or solicitations;
f. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
g. Viruses, corrupted data or other harmful, disruptive or destructive files; and
h. User Content that, in the sole judgment of MobileCause, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform or the Site, or which may expose MobileCause or its users to any harm or liability of any type.
You further agree that you are solely responsible for your conduct while using the Platform, and you agree that you will not do any of the following in connection with the Platform, the Site, or its users:
• Use the Platform in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Platform or that could damage, disable, overburden or impair the functioning of the Platform in any manner;
• Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
• Cheat or utilize unauthorized exploits in connection with the Platform;
• Stalk, intimidate, threaten, or otherwise harass or cause discomfort to other users;
• Send distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
• Harvest or otherwise collect information about users, including email addresses, without their consent;
• Use the Platform or any MobileCause Materials for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Platform Terms; or
• Circumvent or attempt to circumvent any filtering, security measures or other features MobileCause may from time to time adopt to protect the Site, the Platform, its users or third parties.
MobileCause takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor is MobileCause liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Platform’s messaging services is at your own risk. Enforcement of the User Content or conduct rules set forth in these Platform Terms is solely at MobileCause’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by such rules. As a provider of interactive services, MobileCause is not liable for any statements, representations or User Content provided by its users in any public forum, website, message or other communication. Although MobileCause has no obligation to screen, edit or monitor any of the User Content posted in or related to any campaign, MobileCause reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Platform at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Platform at your sole cost and expense. Any use of the Platform, including the creation or maintenance of a fundraising campaign or communicating with actual or potential supporters or donors in violation of the foregoing violates these Platform Terms and may result in, among other things, termination or suspension of your rights to use the Platform and any services incorporated into the Platform.
If you post User Content to the Platform, unless we indicate otherwise, you grant MobileCause and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media on or in connection with the Platform and the promotion thereof including without limitation the right to use your name, likeness, or identity. You grant MobileCause and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if we choose. You understand and agree that the use of your or other users’ name, likeness, or identity in connection with various features on the Platform does not imply any endorsement of such feature or of the Platform of the MobileCause unless explicitly stated otherwise. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Platform; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Platform Terms and will not violate any rights of or cause injury to any person or entity.
9. Registration Data; Account Security
In consideration of your use of the Platform, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site or the Platform (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to MobileCause, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to MobileCause.
10. Export Restrictions
Any software and all underlying information and technology downloaded or viewed from the Site or the Platform (collectively the “Software or Technical Data”) by you may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the Software or Technical Data to any county, or to any person, entity, or end-user subject to U.S. export controls, including without limitation persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.
You agree to defend and hold harmless MobileCause, its independent contractors, service providers and consultants, and their respective directors, employees and agents (the “MobileCause Indemnitees”) from and against any claims, actions, and lawsuits, and indemnify the MobileCause Indemnitees for all damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Platform or your use of the Services, including without limitation any actual or threatened suit, demand or claim made against MobileCause and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the User Content, your conduct, your violation of these Platform Terms or your violation of the rights of any third party.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY MOBILECAUSE, THE SITE, THE PLATFORM, THE MOBILECAUSE MATERIALS AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MOBILECAUSE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PLATFORM AND THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. MOBILECAUSE DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE PLATFORM OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. MOBILECAUSE DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
MOBILECAUSE IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO DONATIONS, PRICING, TEXT OR PHOTOGRAPHY. WHILE MOBILECAUSE ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE PLATFORM AND THE SERVICES SAFE, MOBILECAUSE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
MobileCause reserves the right to change any and all content contained in the Platform and to modify, suspend or discontinue the Platform or any Services offered through the Platform or any features or functionality of the Platform or the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by MobileCause.
MobileCause is a service provider and not a professional fundraiser. MobileCause does not directly solicit funds from any End User. Direct fundraising and communication to End Users is the sole responsibility of the Company.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL MOBILECAUSE, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PLATFORM, THE SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM MOBILECAUSE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MOBILECAUSE’S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOBILECAUSE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE PLATFORM OR THE SERVICES OR TO THESE PLATFORM TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO MOBILECAUSE FOR ACCESS TO OR USE OF THE PLATFORM.
14. Applicable Law and Venue
These Platform Terms and your use of the Platform shall be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Platform Terms shall be filed only in the state and federal courts located in Los Angeles County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Platform Terms.
15. Term and Termination
Term. This Agreement shall become effective upon the Effective Date of the Agreement from Exhibit A for a term of one year, unless otherwise agreed, and will auto renew for successive one year terms until canceled.
Termination. Company may terminate this Agreement upon ten (10) days notice at any time after the initial one-year term. There are no refunds for any amounts paid. Cancellation requests 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.
Notwithstanding any of these Platform Terms, MobileCause reserves the right, without notice and in its sole discretion, to terminate your license to use the Platform, and to block or prevent future your access to and use of the Site.
16. PCI Compliance Warranty
MobileCause represents and warrants that for the life of the agreement, the software and services used for processing transactions shall be complaint with the then current standards established by the PCI Security Standards Council.
If any provision of these Platform Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Platform Terms and shall not affect the validity and enforceability of any remaining provisions.
18. Questions & Contact Information
Questions or comments about the Platform may be directed to MobileCause at the email address email@example.com or by calling us at (888) 661-8804.