As used herein, the following terms have the following defined meanings:
1.1 Accepted means that Company agreed to these Terms and Conditions to govern the Service resulting in an Agreement between MC and Company under these Terms and Conditions.
1.2 Campaign means a particular offering or program by Company as specified in an Exhibit or Program Brief whereby MobileCause (MC) will deliver Messages to End Users.
1. 3 Company means the non-profit organization that accepted these Terms and Conditions.
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 Data Service means the services used for distributing messages to and from End Users on behalf of Company, as described in Paragraph 2.1
1.6 Disclosing Party means either party who discloses the information to recipient
1.7 Effective Date means the date on which these Terms and Conditions were accepted by Company.
1.8 End User means any Subscriber 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 Users and/or their use of the Content and/or Messages.
2.0 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.
2.1 Innogive Foundation (“IGF”) means Foundation required by Operators to vet non-profits participating in mobile giving and also the party responsible for donation remittance to MobileCause customers.
2.2 Operators mean the wireless network carrier in the Territory.
2.3 Payment Service means the services used for collecting and distributing funds collected from End Users on behalf of Company as described in section 4.
2.4 Service means collectively the Data Service and Payment Service.
2.5 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.
2.6 SMS means a short message service text message with up to one hundred sixty (160) characters of 7-bit ASCII text or one hundred forty (140) bytes of data.
2.7 Subscriber means any user of an Operators network who is registered or otherwise authorized to access such network.2.8 Term means as set forth in Section 5 of this Agreement.
2.9 Territory means the world.
3.0 Third Party Provider means a third party involved with the distribution, transmission, and facilitation of the Messages.
3.1 Vendor and Affiliate Relationships mean relationships between MobileCause (MC) and its aggregator, foundation, carrier or other vendors and affiliates which MC selects in connection with providing the Service (the Vendors and Affiliates).
3.2 Uncollectibles means any carrier billed donations, which are ultimately deemed not collectible, who’s billing failed or charges were reversed.
1. MC SERVICES
1.1 Data Service. MC will provide Mobile Services to Company in accordance with these Terms and Conditions, provided that Company timely fulfils its all of its obligations hereunder: (a) Provide Company with reasonable technical information and/or specifications for Campaign; (b) Format Content, as specified by Company, into Messages for distribution to End Users.
1.2 Donation Service. MobileCause (“MC”) and Innogive Foundation (“IGF”) will provide Donation Services to Company in accordance with the terms and conditions stated herein: (a) The IGF shall remit all monies due to Company collected as a result of any charitable giving Campaign via IGF according to the terms of the IGF Terms and Conditions.
2. COMPANY’S OBLIGATIONS
2.1 Company agrees to cooperate fully with MC and its Vendors and Affiliates and provide such information as is necessary for MC to evaluate Company as a potential customer as per Carrier and IGF guidelines, including eligibility as a non-profit organization (NPO) for carrier billed donations as detailed by IGF. Learn more http://www.mobilecause.com/innogive
2.2 Subject to the terms and conditions herein, Company grants to MC a worldwide, sub-licensable, royalty-free right and license to (i) send the 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.
3. INTELLECTUAL PROPERTY
3.1 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.
4.1 Credit Card Authorization
Company here by authorizes MC to charge the credit card provided by Company to MC for all recurring monthly fees and or charges outlined in this Agreement with the exception of credit card donations. Credit Card donations will be processed and remitted by IGF, 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.
4.2 Remittance Details
IGF will be responsible for remitting to Company all donations collected for Company whether it be processed by Credit Card or Carrier cell phone bill. Donations fulfilled by CC will be paid out to Company by check by the 15th following the month in which collected. Donations fulfilled by Carrier cell phone bill will be paid out to Company by check within 15 days of receipt from Carriers. Carriers typically pay out remittances within 90 days from month in which collected. Transaction fees due on any CC donation are deducted before distribution of donations to the Company. Carrier billed donations are paid out at 100% of what is collected from Carrier to the Company. Company will either pay for transactions fees by way of Credit Card on file or through invoice if no CC on file. Invoices are all due upon receipt. Transaction fees are due and payable even if Company has since terminated its service agreement with MC or it has lapsed as long as Company receives donations post termination or lapse of service agreement. Should Company become insolvent or go bankrupt IGF reserves the right to redistribute donations outstanding to any other Company IGF deem acceptable and eligible.
4.3 Records and Inspection Rights
Both parties shall keep and maintain at its regular place of business the uncollectible amounts resulting from a Campaign (Uncollectibles), all times during the Term and for three (3) years following termination of this Agreement accurate books and records of account related to Agreement.
4.4 Operator Uncollectible Accounts
In the event IGF receives notice from an Operator or Third Party Provider of uncollectible amounts resulting from strictly a Text2Give (Carrier Billed) Campaign (Uncollectibles), IGF reserves the right to offset any Uncollectibles against future monies owed to Company. If no additional monies are owed to Company, IGF may invoice Company for any such Uncollectibles. Such amounts are due and payable upon Company’s receipt of the invoice.
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.
One year minimum term, which auto-renews at the end of Term. Cancellation requires (30) thirty days’ notice and available only after 90 days from commencement of contract. Cancellation requests must be made by calling 866-976-7999.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.
6. CONFIDENTIAL INFORMATION
6.1 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).
6.2 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.
6.3 Exceptions. MC is authorized to disclose confidential as required to comply with applicable laws or governmental regulations.
6.4 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.
7. REPS AND WARRANTIES
7.1 Necessary Authority. Each party hereby represents and warrants that it (i) has the full power, ownership interests and the right to enter into this Agreement
7.2 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. (iii) Has obtained the End Users express authorization to charge the Subscriber’s account with the applicable Operator (or any other third party billing service provider); and the foregoing shall not be construed as a warranty that the Services will function without error.
7.3 Company Representations. Company hereby represents and warrants to MC and its Operators and Third Party Providers that Company (i) will comply with all applicable charitable solicitation laws and consumer protection laws/regulations.
7.4 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 processing.
7.5 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 MobileCause indemnifies and holds 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.
9. LIMITATION ON LIABILITY
MOBILECAUSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FOR ANY AND ALL DAMAGES THAT YOU 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 MOBILE CAUSE PER THIS AGREEMENT. WITHOUT LIMITATION OF THEFOREGOING, 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.