These Terms of Service (this “Agreement”), are made between you (“you” or “Recipient”), and Democracy Engine, LLC, a Delaware limited liability company (“we” or “us” or “Company” or “Provider”), and govern the terms and conditions of your access to and use of our Services (as defined below). However, if you have entered into this Agreement on behalf of an entity, such as a corporation or limited liability company then “you” or “Recipient” refer to the entity, and you represent and warrant that you have power and authority to enter into this Agreement on behalf of the entity.
This Agreement also includes and incorporates by reference any operating rules, policies, price schedules, or other supplemental documents which may be published generally from time to time by us, both prior and subsequent to the effective date of this Agreement.
By checking and submitting the “Accept” box for this Agreement and/or using any of the Services and/or begun receiving contributions via Company, you confirm your acceptance of, and agree to be bound by, this Agreement.
A. Information, Payments and Debits
1) Recipient agrees to submit to Provider the accurate Routing and Account numbers for an account, held at a U.S based financial institution acceptable to Company to which funds may be transferred to Recipient and from which adjustments may be made by Company (“Transaction Account”).
Provider also may require further information in order to verify Recipient’s identity and information or to comply with campaign finance disclosure laws, such as confirming a mailing address or telephone number. Provider reserves the right to verify Recipient’s information with third parties. If Recipient fails to provide required information, or Provider has reasonable grounds to suspect that any such information is not true, current and complete, Provider may limit, suspend or terminate Recipient’s use of all or any portion of the Services and/or withhold amounts due.
2) Company shall credit via ACH or other online credit or via check to Recipient any Contributions Company receives that are designated for Recipient (the “Procedures”). “Contributions” means contributions in the case of payments to political candidates or committees, and donations in the case of payments to for-profit or non-profit organizations. Company shall perform the Procedures at no fee to Recipient, but may charge fees to contributors or, in the case of donations to federal candidates and committees, an earmarking committee, and deduct such fees from the Contributions and shall credit Recipient with the Contribution amount(s) minus such fees. However, if Recipient requests payment by check, Company may charge Recipient a processing fee not to exceed five dollars (USD $5.00) per check.
3) In the event of a chargeback, refunded or voided Contribution, or other refund, credit, adjustment, fine, penalty, or other amount due to manifest error or legal requirement, Company may debit the Transaction Account. Recipient hereby authorizes Company to make ACH or other online debits to the Transaction Account, and to resubmit any such debit that is returned unpaid, e.g., for insufficient funds. If for any reason these amounts cannot be directly debited from the Transaction Account, Recipient agrees to pay such amounts on receipt of an invoice. If such amounts are not paid to Company when due, Recipient also shall pay Company interest on such amounts at the lesser of one and one-half percent (1.5%) per month or the maximum legal rate, as well as costs of collection. Company has a right of recoupment and set-off. Company may place a reasonable hold or reserve on Contributions with a high risk of chargeback, refund or the like.
4) Recipient, and not Company, shall be responsible for: (a) all fees and other amounts charged by Recipient’s financial institution relating to funds received or paid in connection with this Agreement, and (b) taxes, if any, arising from this Agreement, other than taxes on the income or profits of Company. Recipient must promptly review all statements from Company and notify Company in writing of any errors within thirty (30) days of receipt. Failure so to notify Company constitutes waiver of any claim relating to such error.
5) Recipient must maintain sufficient funds in the Transaction Account to cover all its obligations under this Agreement, such as reimbursement of chargebacks, during the Term of this Agreement and for two (2) years thereafter. Recipient shall not change the Transaction Account without thirty (30) days prior written notice to Company.
6) If Provider offers recurring transactions, Provider may not complete such transactions after receiving a cancellation notice from the card holder or a similar notice or refusal from its payment processors.
7) Recipient shall:
b) represent and warrant at all times that during the Term it complies with all of Provider’s recipient eligibility requirements, which include the requirement that a recipient be (i) a for-profit or non-profit organization registered in the U.S., (ii) a candidate for public office under U.S. local, state or federal laws, rules and regulations or (iii) a political committee acceptable to Provider; and
c) provide prompt written notice to Provider in the event that Recipient (and/or relevant candidate(s), officials or officers) is or becomes subject to any of the following: (i) conviction for a felony offense or any other crime involving moral turpitude; (ii) restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practice on such person’s part; (iii) filing or petition for bankruptcy, insolvency, assignment for benefit or creditors or similar occurrence; (iv) federal or state tax lien; (v) material adverse change in such person’s assets, operations, or condition, financial or otherwise; (vi) the threat or filing of any litigation against such person, the outcome of which reasonably could have a material adverse effect on Recipient’s continuing operations; (vii) administrative or enforcement proceeding commenced by any state or federal regulatory agency, including any banking or securities agency or entity operating any card network, that reasonably could have a material adverse effect on Recipient’s continuing operations; and/or (viii) any disciplinary action taken by any card network against any such person.
8) Recipient shall not, directly or indirectly: (a) use any of the Procedures in any way that would breach this Agreement or would be abusive, harassing, tortious, or otherwise could result in civil or criminal liability or in excessive non-acceptance, refunds and/or chargebacks of Contributions; (b) violate any applicable law, rule or regulation, including election, campaign finance, and/or tax law, rules or regulations, and/or debit/credit card system or association rules; (c) send or receive funds obtained by or connected with fraud; (d) use any Procedures in connection with unsolicited or unauthorized email or other unethical or illegal methods; (e) provide false or misleading information or impersonate any person or entity, including, but not limited to, any representative of Company or Recipient, or misrepresent Recipient’s affiliation with any person or entity; (f) refuse to reasonably cooperate in any investigation related to the Procedures; (g) intercept, monitor, interfere with or disrupt any Procedures or the servers, networks or communications systems connected to them or any security functionality of Company or any third party; (h) use or introduce any spyware, adware, viruses, trojan horses, worms or similar invasive, destructive or self-replicating code in connection with the Procedures; or (i) use any automated system, such as “robots” or “spiders,” to access Company’s systems or Procedures significantly faster than a human or to monitor activity on such systems or Procedures. Company shall be the sole arbiter as to what activities violate the foregoing.
9) Company may provide forms or mechanisms for Recipient to provide content for feedback, testimonials, suggestions and ideas about Company’s products and services, or Recipient may provide such content through other means (“Responses”), and accordingly, Company may use any Responses in any way, including in future versions of its products or services, and/or its advertising or promotions. Recipient grants Company a perpetual, worldwide, non-exclusive, irrevocable, transferable, sublicenseable, license without royalty or other compensation to use, copy, distribute, create derivative works of, transmit, perform and display the Responses, in any manner and for any purpose.
B. Relationship of Parties
Nothing in this Agreement shall be deemed to place Recipient or Provider in the relationship of employer-employee, principal-agent, affiliates, partners or joint venturers.
C. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY
1) COMPANY DOES NOT MAKE ANY WARRANTY IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGMENT. PROVIDER DOES NOT WARRANT THAT THE PROCEDURES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.
2) Recipient will defend, indemnify and hold harmless Company, and its officers, directors, members, employees, suppliers and agents, and the owners of sites that link to or display Contribution forms or pages provided by Company (“Sponsors”), from any loss, damage, liability or cost (including reasonable attorneys’ fees) resulting from any third party claim that arises out of Recipient’s breach of this Agreement, Recipient’s use of the Procedures, Recipient’s receipt of funds under this Agreement, and/or chargebacks, refunds, fees, interest, penalties or the like imposed by third parties in connection with the Transaction Account or any account(s) used by Company in connection with the Procedures and/or payments under this Agreement.
3) NEITHER COMPANY NOR ANY OF ITS SUPPLIERS, AGENTS OR SPONSORS WILL BE LIABLE TO RECIPIENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, SAVINGS OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT COMPANY OR SUPPLIER, AGENT OR SPONSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE ENTIRE LIABILITY OF COMPANY AND ITS SUPPLIERS, AGENTS AND SPONSORS UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THECONTRIBUTIONS (LESS FEES TO CONTRIBUTORS AND OTHER AMOUNTS WHICH MAY BE DEBITED BY COMPANY OR PAYABLE TO COMPANY) IN THE MONTH IN WHICH THE RELEVANT TRANSACTION OCCURRED.
D. Term and Termination
1) This Agreement shall remain in effect for 12 months and upon expiration shall be automatically renewed on a month-to-month basis (as renewed, the “Term”).
2) Either party may terminate this Agreement for cause by written notice immediately upon the occurrence of any of the following events as to the other party:
a) if the other party ceases material operations, or otherwise terminates its business or fundraising operations;
b) if the other party materially breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days of written (including email) notice describing the breach; and/or
c) if the Transaction Account and/or any account(s) used by Provider in connection with the Procedures is suspended or closed.
3) Either party may terminate this Agreement for convenience with thirty (30) days prior written (including email) notice.
4) Sections A(3) to A(9) inclusive and B to G inclusive shall survive the expiration or termination of this Agreement.
1) Company grants Recipient a fully-paid, royalty-free, non-exclusive right and license to use data provided through the Procedures for Recipient’s legal and accounting compliance purposes.
2) Recipient acknowledges and agrees that much of the data provided through the Services must be publicly disclosed as required by law and must be disclosed to Recipient for its use and legal compliance.
F. Arbitration; Waiver of Class Action Rights
1) Recipient hereby agrees that any dispute, claim or controversy (other than claims for equitable relief or concerning Company’s intellectual property) between Recipient and Company arising from this Agreement (each a “Claim”) shall be resolved by binding arbitration. Arbitration replaces the right to appear in court, and Recipient also agrees to waive any right that it might have to a jury trial or the opportunity to litigate any Claims in court before a judge or jury. Either Recipient or Company may require the submission of a Claim to binding arbitration at any reasonable time notwithstanding that a lawsuit or other proceeding has been commenced.
2) Neither Recipient nor Company will be entitled to join or consolidate Claims by or against the other in any arbitration, or to include in any arbitration any Claim as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity.
3) This section F is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (Title 9 of the United States Code, as amended). The party filing a Claim(s) in arbitration must file its Claim(s) before a single arbitrator appointed by the American Arbitration Association (“AAA”) under its then-current commercial disputes rules. For any Claim of less than $10,000, Provider may elect non-appearance based arbitration through AAA or another mutually-approved arbitration provider, and in such event the arbitration shall be conducted by telephone, video conference, and/or online, and/or be based solely on written submissions of the parties. The arbitrator must be a lawyer actively engaged in the practice of law or a retired judge, and must have relevant expertise.
4) The arbitrator shall not have authority to vary the terms or conditions of this Agreement. The arbitrator’s award shall be final and biding on the parties, except that either party may seek judicial relief for any alleged failure by the arbitrator to comply with the preceding sentence, and either party may also seek judicial relief to enforce an award if necessary.
5) This section F does not prevent Recipient or Company from exercising any lawful rights to other self-help remedies, such as setoff rights.
6) Recipient and Company each shall take all steps and execute all documents necessary for the implementation of arbitration proceedings. Neither the parties nor the arbitrator may disclose the content or results of any such arbitration, except as required by court order or applicable law, rule or regulation. The parties shall share equally the costs assessed by the AAA or the arbitrator and other joint costs of the arbitration, but each party shall bear its own attorneys’ and experts’ fees and other costs incurred that are solely attributable to that party’s decision and actions.
7) Subject to the foregoing, Recipient agrees that exclusive jurisdiction for any dispute, claim or controversy arising from this Agreement shall be in the federal and state courts located in Santa Clara County, California, U.S.A.
1) Governing Law. This Agreement is made and will be construed according to the substantive laws of the State of California without reference to its conflicts of law principles.
2) Severability. The invalidation of any portion of this Agreement will not and shall not impair or affect the validity of any other provisions.
3) Marketing. Recipient grants Company a paid-up, royalty-free, worldwide, non-exclusive license to use Recipient's name and Marks to identify Recipient as a client in marketing or similar materials, including Company's web site.
4) Assignment. Recipient may not assign this Agreement, in whole or in part, without prior written consent of Company. Any attempt by Recipient to assign this Agreement without such consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of both parties, and their successors and assigns.
5) Force Majeure. Any delay in or failure of performance by Company of its obligations under this Agreement will not be considered a breach of this Agreement and will be excused to the extent such delay or failure of performance is caused by any occurrence beyond the reasonable control of such party, which occurrences may include, but not limited to, acts of God; failures of the Internet, telecommunications or payment processing facilities; bank holidays, market closures, or other government interventions; war; riot or labor strikes; and similar events.
6) Entire Agreement; Changes. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
7) No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
8) Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
9) Remedies. The rights and remedies of Company in this Agreement, at law or in equity, are cumulative and are not intended to be exclusive of one another.
Effective Date of this version: August 1, 2012