NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
IMPORTANT: You should read the terms and conditions carefully before you register and use this software platform. Please make sure that you understand what promises, representations, warranties, and obligations you are agreeing to when you register for, give donations through, and use the Fund Youth Sports, Inc. fundraising software platform.
Your use of this website and any and all of Fund Youth Sport’s online and mobile properties constitutes your agreement with these Terms and Conditions as set forth below.
We want to make sure that your privacy is protected, and we also acknowledge the need to always be improving and providing as much protection for children using the Fund Youth Sports Platform as we are able.
We are compliant with the United States’ Children’s Online Privacy Protection Act of 1998 (“COPPA”). In addition, we comply with all applicable laws in the United States regarding data privacy that govern this website and the collection of personal information from children under the age of 18 when he or she provides it to us.
Children under the age of 18 should never give out their personal information to strangers through websites or mobile apps. They should always ask their parents or guardians before entering ANY personally identifying information about themselves online.
Children under 13 can make use of the Fund Youth Sports platform and related digital properties, but only with the prior consent of their parents or guardians and as long as they are in compliance with all requirements of COPPA.
Fund Youth Sports offers participation in the Fund Youth Sports platform and its related digital properties on the condition that you abide by our Terms and Conditions. We offer our site as a condition of use, at the sole discretion of Fund Youth Sports, and to be used at your own risk. If there is any conflict between this Agreement and our other statements, any conflicts will be resolved according to this Agreement. The process of registration for use can be found on our website, but acceptance of these terms and conditions indicates that you agree to all terms and conditions contained in this Agreement pertaining to our services and your use of the Fund Youth Sports platform.
We advise you to check back periodically for any updates or modifications to this Agreement as it may be modified at any time and your continued use of or access to the Platform after any such change shall be deemed as your acceptance of such change.
The Services are offered as a platform to allow an individual, entity or non-profit organization (the “Organization”) to post a campaign (“Campaign”) to the Platform to accept monetary donations (“Contributions”) from donors (“Contributor”) on behalf of the youth sports participant beneficiary of the Campaign (“Beneficiary”). Neither the Organization nor the Contributor will provide goods or services in exchange for Contributions.
In addition, when using the Service, you shall be subject to any guidelines or rules (the “Guidelines”) applicable that may be posted online from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms.
You shall not hold the Company responsible for others’ content, actions, or inactions. You acknowledge that the Company has no control over and does not guarantee the quality, safety, or legality of organizations promoted, the truth or accuracy of content, listings, or ability to perform the stated objective.
Your continued use of the Services after the date of any such changes constitutes your acceptance of the new Terms. To the extent allowed by law, the English version of these Terms is binding and other translations are for convenience only. If you do not wish to accept the new Terms, you may discontinue accessing this website and any of our related web properties as well as any Services provided therein.
2. DESCRIPTION OF THE SERVICE AND DEFINITIONS
The Service is a simple, easy-to-use crowdfunding application that can easily be promoted via social media services, websites, and email.
- “Campaign” is a fundraising project created using our Service, to fund the sports activities of an individual or on behalf of an Organization.
- “Campaign Owner” is the individual that created the Campaign.
- Campaign Owners have access to features and tools for their Campaigns including but not limited to tracking Contributions made to their Campaigns and editing details of their Campaigns.
- Campaign Owners may grant access to the features and tools of the Campaign to Users and the Users are subject to these Terms as agreed to by the Campaign Owner. If a Campaign Owner chooses to transfer or share ownership of their Campaign with another User, that User becomes a Campaign Owner, and they will assume the aforementioned access and responsibilities.
- “Contributor” is any individual or organization that contributes money to a Campaign.
- “Contribution” is any financial transaction that benefits the Campaign.
- “Organization” may be a non-profit, school, political entity, business, or other social entity that has funding youth sports as a collective goal.
- “User” is any individual who has accepted the Terms by logging in to the Service through a Login Service or by contributing to a Campaign.
- “Payment Provider” is a company that processes Contributions to Campaigns.
You are not eligible to Donate on this website without consent if you are under 18 years of age. You are not eligible to use the Service if you have previously been suspended from using the Service for any reason and we have not explicitly authorized you to resume using the Service. We reserve the right to refuse the use of the Service to anyone and to reject, cancel, interrupt, remove or suspend a Campaign at any time for any reason without liability.
4. PAYMENT PROCESSING INFORMATION
- Current Payment Providers include: Stripe
All contributions to Campaigns are processed through the Payment Provider(s) as chosen by the Campaign Owner.
i. Users of the Service are subject to and must adhere to the terms of the applicable Payment Providers’ Terms of Service and other agreements relating to their Service transactions. The Company is not affiliated with any Payment Provider, and neither is the agent or employee of the other, and neither is responsible in any way for the actions or performance (or lack thereof) of the other. The same is true with respect to the Company on the one hand and Users on the other hand. To the extent that the Service is rendered in conjunction with any other provider of services, the same shall also be true, namely that to the extent that a User of the Service hereunder does so in conjunction with the services of another service provider, such User will be subject to the other service provider’s terms of service, and neither the Company nor the other service provider will be considered the agent or employee of the other, and neither will be responsible in any way for the actions or performance (or lack thereof) of the other. These Terms shall not in any way supersede the terms of any other service provider for using their service, nor shall the terms of service of any other service provider supersede the terms of the Terms with respect to the Service.
ii. By using the Service, all Users agree to the Payment Provider withholding a Service fee and making these fees available to the Company. For information on the service fees see the Fee Schedule section below.
iii. Campaign Owners accept the responsibility to provide refunds to Contributors at their own discretion. The Company will NOT be held liable for refunds or lack thereof.
iv. Third-Party Service Providers may be engaged to:
Issue tax receipts for donations to nonprofit organizations and/or pool donated funds in a Foundation and transfer a lump sum to the designated nonprofit. The Service Provider may charge a fee for these services that will be paid by the recipient of the funds.
5. FEE SCHEDULE
Every Campaign is free to create.
The Service fee to accept financial contributions is up to 15% of the contribution, depending on the package of additional services chosen by the Campaign Owner. This Service fee of 15% includes the credit card processing and transaction fees.
Contributors are not required to pay a fee. However, Contributors are sometimes offered the option to pay the fees or a portion of the fees on the transaction and/or the Platform Service fee, on behalf of the Recipient, if they so desire.
There are no additional fees or penalties.
6. REFUND POLICY
If you make a registration or other payment via the Service, you agree that such transaction is between you and that Campaign Owner notwithstanding Fund Youth Sports’ rights to impose Fees on such transactions as described above; therefore, any refund requests, including without limitation unauthorized or incorrect charges, must be made directly to the Campaign Owner. Any Fees charged by Fund Youth Sports for the Services are non-refundable.
7. FURTHER SERVICE UNDERSTANDINGS
Unless explicitly stated otherwise, any new features that augment or enhance the Service shall be subject to the Terms. You understand and agree that the Service is provided AS-IS and that the Company assumes no responsibility for the timeliness, deletion, misdelivery, or failure to store any communications or personalization settings.
As a Contributor, you are solely responsible for asking questions and investigating Campaigns to the extent you feel is necessary before you make a Contribution. All Contributions are made voluntarily and at your sole discretion and risk. The Company doesn’t guarantee that Contributions will be used as promised, that Campaign Owners will deliver Incentives, or that the Campaign will achieve its goals. The Company does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality, or legality of any Campaign, or Contribution, or the truth or accuracy of content posted on the Service. You are solely responsible for determining how to treat your Contribution for tax purposes.
The Campaign Owner is solely responsible for:
- understanding that taxing authorities may classify funds raised through the Service as taxable income to the Campaign Owner and any beneficiary who will receive funds directly from the Campaign.
- determining how to treat and collect and remit any taxes on Contributions in connection with your Incentives – paying all fees and taxes associated with the use of the Service.
10. RAISING FUNDS ON BEHALF OF OTHERS
From time to time, Campaign Creators desire to raise money on behalf of Organizations and Individuals.
To comply with federal, state, and local laws, the Campaign Owner must upon request provide the Company and the Payment Provider with proof that the Organization has clearly authorized the Campaign Owner to act on its behalf. To apply to accept funds on behalf of another organization, the Campaign Owner must submit upon request by email to the Payment Provider and the Company a Letter of Subordination on letterhead from the Organization and signed by an authorized officer of that Organization that expressly grants the Campaign Creator the right to fundraise on behalf of the Organization. Copies of the documents should be sent to info@FundYouthSports.com and the email address of the Payment Provider.
12. PROHIBITED ACTIVITIES
13. SET UP OBLIGATIONS
In consideration of your use of the Service, you agree to:
(a) provide true, accurate, current, and complete information about yourself and your Organization as prompted during the Campaign creation process and any later administration processes (such information being the Set Up Data) and
(b) maintain and promptly update the Set Up Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your use of the Service and refuse any and all current or future use of the Service (or any portion thereof).
14. SECURITY AND COMPLIANCE
Access to the Service is provided through an email address/password combination.
You are responsible for maintaining the confidentiality of the Login Services and are fully responsible for all activities that occur in your Login Service account as it relates to the Service. You agree to immediately notify the Company of any unauthorized use of your Login Service account or any other breach of security as it relates to the Service. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
In using the Service, you understand that you are liable for all information, products, or services, in whatever form, that you make available to other Users. You agree not to use the Service to:
- upload, post, email, transmit or otherwise make available any Information, products or services, that are unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way; impersonate any person or entity, including, but not limited to, a Company representative, forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service;
- upload, post, email, transmit or otherwise make available any Information, products, or services, that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned, or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Information, products, or services, that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (Rights) of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation;
- upload, post, email, transmit or otherwise make available any material that contains software viruses, or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, province, state, national or international law; or stalk or otherwise harass another.
You acknowledge that the Company does not pre-screen any Content working in coordination with the Service, but that the Company and its designees shall have the right (but not the obligation) in their sole discretion to rescind the use of the Service.
You acknowledge and agree that the Company may preserve Information and may also disclose Information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
- (a) comply with legal process;
- (b) enforce the Terms;
- (c) respond to claims that any Information violates the rights of third parties; or
- (d) protect the rights, property, or personal safety of the Company, its Users, and/or the public. You understand that the technical processing and transmission of the Service, including your Information, may involve:
- (a) transmissions over various networks; and
- (b) changes to conform and adapt to technical requirements of connecting networks or devices.
16. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Information. Specifically, you agree to comply with all applicable laws regarding electronic commerce and charitable funding, and regarding the transmission of technical data exported from The United States or the country in which you reside.
18. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service, other than as provided within the scope of the Service or if agreed to by written consent from the Company.
19. MODIFICATIONS TO SERVICE
The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. The Company will not be responsible to you for refund, in whole or part, of the Service fees for any reason. You agree that the Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
You agree that the Company, in its sole discretion, may terminate your use of the Service, and remove and discard any Information within the Service, for any reason, including, without limitation, for lack of use, failure to timely pay any Service fees, or other monies due to the Company, or if the Company believes that you have violated or acted inconsistently with the letter or spirit of the Terms. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that the Company may immediately deactivate or delete your Information and/or bar any further access to such files in the Service. Further, you agree that the Company shall not be liable to you or any third party for any termination of your access to Service.
21. OPTIONAL TOOLS AND THIRD PARTY LINKS
We may provide you with access to third-party tools or services over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools and services “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Certain content, resources, and services available via our website may include materials from third parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
22. PUBLISHING AND COMMUNICATIONS
By creating their Campaign or publishing content, Campaign Owners and Contributors agree to their campaign images, videos, text, or excerpts being made available for discovery in our Service Find pages and search engine results, as well as their appearance in Service-related communications or promotions or in news articles or reports on published on news media websites or print publications. Campaigns may be used as part of advertising campaigns to promote either the campaign or the Service in print, online or mobile. Private Campaigns will not be published in this manner.
23. THE COMPANY’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software (Software) used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Service is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by the Company, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
The Company grants you a limited, revocable, non-transferable, and non-exclusive right and license to use the Service subject to your eligibility and continued compliance with these Terms; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service. You agree not to modify the Service in any manner or form, or to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interfaces or APIs that are provided by the Company for use in accessing the Service.
25. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our website will be uninterrupted, timely, secure, or error-free.
We do not warrant that the results that may be obtained from the use of our website will be accurate or reliable.
You agree that from time to time we may remove or shut down our website for indefinite periods of time or cancel any services offered on our website at any time, without notice to you.
You expressly agree that your use of, or inability to use, the website is at your sole risk. The website and all products and services delivered to you through the website are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties, or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Company, our directors, officers, shareholders, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of our website or any products or services procured using our website, or for any other claim related in any way to your use of our website or any product or service procured using our website, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
IN NO EVENT SHALL COMPANY’s AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS WEBSITE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE WEBSITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Company is a United States-based company and website. We make no representation that any aspect of our website or any product or service procured using our website is appropriate or available for use outside of the United States or may be used for persons who are not citizens of the United States or residents of other countries. Those who access our website from other locations are responsible for compliance with applicable local laws. The website or any product or service procured using our website is subject to applicable export laws and restrictions.
26. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF THE TERMS SECTIONS MAY NOT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS PARAGRAPH, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF
(A) THE TOTAL SERVICE FEES YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND
IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE US (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Notices to you may be made via either email or regular mail. The Company may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Service. Our mailing address is: Fund Youth Sports Inc, 27450 Ynez Road, Suite 318, Temecula, California, 92591.
29. TRADEMARK INFORMATION
FundYouthSports, trademarks and service marks, and other Company logos and product and service names are owned by and/or trademarks of FundYouthSports, (the FundYouthSports Marks). Without the Company’s prior permission, you agree not to display or use in any manner, the FundYouthSports, Marks. FundYouthSports Business Partner and third-party trademarks are the property of their respective owners.
30. GOVERNING LAW; DISPUTE RESOLUTION
ARBITRATION CLAUSE & CLASS ACTION WAIVER
IMPORTANT* PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
In the event of a dispute between you and Company (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Temecula, California. In the event that there is any dispute between you and Company that is determined not to be subject to arbitration pursuant to the preceding sentence, or in the event this arbitration provision is held unenforceable or invalid by a court of competent jurisdiction, you agree to submit in that event to the exclusive jurisdiction and venue of the courts of the State of California located in Riverside County or the United States District Court for the Central District of California. You agree that this Agreement and the relationship between you and Company hall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
Confidentiality: We each agree to keep the arbitration proceedings, all information exchanged between us, and any settlement offers confidential unless otherwise required by law or requested by law enforcement or any court or governmental body. However, we may each disclose these matters, in confidence, to our respective accountants, auditors, and insurance providers.
31. GENERAL INFORMATION
- Entire Agreement. The Terms constitute the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party Information, or third-party software.
- Choice of Law. The Terms and the provision of the Service to you are governed by the laws of the State of California, the United States of America as such laws are applied to agreements entered into and to be performed entirely within California by California residents.
- Time to File Claim. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
DATA PROCESSING ADDENDUM FOR LICENSEES SUBJECT TO THE EUROPEAN UNION’S
GENERAL DATA PROTECTION REGULATION (GDPR)
This Addendum becomes effective on 4/15/2022 or on the acceptance of the Agreement(s), whichever is later (the “Effective Date”).
1.1. Agreement(s)” means the agreement entered into between Licensee and Licensor for the provision of Licensor’s Services to the Licensee.
1.2. “Licensee” means the customer as defined in the Agreement(s), including all affiliates of that entity, if any.
1.3. “EEA” means the European Economic Area.
1.4. “GDPR” means the laws and regulations of the European Union, the European Economic Area, their member states, and the United Kingdom, applicable to the processing of Personal Data under the Agreement(s), including (where applicable) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 also known as the General Data Protection Regulation.
1.5. “Privacy Shield” means the EU-US framework of privacy principles agreed on February 2, 2016, and formally adopted by the European Commission implementing decision C(2016) 4176 final of July 12, 2016, or any other framework for transferring Personal Data from the EEA or Switzerland to the United States that is approved by the European Commission as providing an adequate level of protection pursuant to the GDPR.
1.6. “Services” means the software-as-a-service (SaaS) and other products, services, and activities to be supplied to or carried out by or on behalf of the Licensor for the Licensee pursuant to the Agreement(s).
1.7. “Licensor” means the legal entity which is a party to the Agreement(s) and Processes Personal Data on behalf of the Licensee.
1.8. “Non-Personal Data” means data that will be logged for internal system-related and statistical purposes, which cannot be tracked back to a Data Subject, such as the name of the file accessed, date and time of access, data volume transferred, notification of successful access and transfer, Web browser and requesting domain, and any other data collected in anonymized form.
1.9. “Personal Data” as used in this Addendum includes all data relating to Data Subjects located in the EEA and Switzerland that is processed by the Licensor on behalf of the Licensee within the scope of the Agreement(s).
1.10. “Processing” means any operation or set of operations that is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.11. “Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data from a Data Controller in the EEA to Processors established in third countries under the EU Data Protection Directive 95/46/EC (the “Directive”), or any legislation replacing the Directive, in the form set out in the Annex of European Commission Decision 2010/87/EU (or any alternative or successor Decision that approves new standard contractual clauses for transfers to data processors in third countries), as amended by incorporating the description of the Personal Data to be transferred set out in Appendix 1 to this Addendum and the technical and organizational measures to be implemented as set out in Appendix 2 to this Addendum, both of which Appendices are hereby incorporated by reference in this Addendum. The Standard Contractual Clauses are available on the European Commission’s Web site at the following link: http://ec.europa.eu/justice/data-protection/international-transfers/files/clauses_for_personal_data_transfer_processors_c2010-593.doc.
2. APPLICABILITY; ROLES OF THE PARTIES
2.1. This Addendum amends and supplements the Agreement(s) between the parties. The terms of this Addendum will apply to all processing of Personal Data in relation to the Services provided under the terms of the Agreement(s). This Addendum will not apply to the Processing of Personal Data, where such processing is not regulated by the GDPR. This Addendum will not apply to the Processing of Non-Personal Data, it being expressly understood that Licensor may use Non-Personal Data in any manner permitted by law, including but not limited to statistical analyses.
2.2. Capitalized terms used but not defined in this Addendum have the meanings assigned to them in the Agreement(s) or the GDPR.
2.3. In the context of this Addendum, the Licensee acts as a Data Controller and the Licensor acts as a Data Processor with regard to the Processing of Personal Data.
2.4. Licensor shall carry out the Services and Process the Personal Data received from the Licensee as set out in the Agreement(s) or as otherwise notified in writing by the Licensee to Licensor during the term of the Agreement(s). In the event that in Licensor’s opinion a Processing instruction given by the Licensee may infringe GDPR, Licensor shall immediately inform the Licensee upon becoming aware of such a Processing instruction.
2.5. Licensor shall undertake at all times to comply with the GDPR and not to perform its obligations under the Agreement(s) in such way as to cause the Licensee to breach any of its applicable obligations under the GDPR and any existing regulations issued by the relevant data protection authorities.
3. DATA PROTECTION
3.1. All Personal Data provided to Licensor by the Licensee or obtained by Licensor in the course of its work with the Licensee should be protected and may not be copied, disclosed, or processed in any way without the written authority of the Licensee. To the extent that the provisions of the Agreement(s) or the instructions of the Licensee necessitate the copying, disclosure, or processing of data, this will be deemed to constitute the required authority to do so.
3.2. Licensor agrees to comply from time to time with any reasonable measures required by the Licensee to ensure its obligations under this Addendum are satisfactorily performed in accordance with all applicable legislation. This includes any of the Licensee’s best practice guidelines of which the Licensor has actual notice.
4. PROCESSING PERSONAL DATA
4.1. Where the Licensor processes Personal Data (whether stored in the form of physical or electronic records) on behalf of the Licensee it shall:
4.1.1. Process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations under the Agreement(s) or as is required by law including the GDPR and any existing laws, rules, or regulations issued by the relevant data protection authorities;
4.1.2. Implement appropriate technical and organizational measures and take the steps necessary to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, and promptly supply details of such measures as requested by the Licensee; such security measures are set out in Section 6 of this Addendum; and
4.1.3. At the Licensee’s request, promptly supply the Licensee with details of the technical and organizational systems in place to safeguard the security of the Personal Data held and to prevent unauthorized access.
4.2. Licensee acknowledges and agrees that (a) Licensor’s affiliates may be retained as Sub-processors, and (b) Licensor and Licensor’s affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Licensor will ensure that any third party to which it sub-contracts any processing has entered into a written contract with Licensor containing similar provisions to those in this Addendum, to the extent applicable to the nature of the Services provided by such Sub-processor. Upon Licensee’s request, Licensor shall make available to Licensee the current list of sub-processors with their country of location. If Licensor provides hosting services under the Agreement(s), the Licensee agrees and acknowledges that Licensor is allowed to host the Personal Data at a third-party data center provider.
4.3. Unless applicable laws require retention of such Personal Data, Licensor agrees that in the event that it is notified by the Licensee that it is not required to provide any further services to the Licensee under this Addendum, Licensor shall transfer a copy of all information (including Personal Data) held by it in relation to this Addendum to the Licensee in a format chosen by the Licensee (provided that the Licensee pays for the associated costs) and/or, at the Licensee’s request, destroy all such information using a secure method which ensures that it cannot be accessed by any third party and shall issue the Licensee with written confirmation of secure disposal.
4.4. All copyright, database rights, and other intellectual property rights in any Personal Data processed under this Addendum (including but not limited to any updates, amendments, or adaptations to the Personal Data by either the Licensee or Licensor) will belong to the Licensee. Licensor is licensed to use such data only for the term of and in accordance with this Addendum.
5. RIGHTS OF DATA SUBJECTS
5.1. Licensor shall, to the extent legally permitted, promptly notify Licensee if it receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making (each a “Data Subject Request”). Taking into account the nature of the Processing, Licensor shall assist Licensee by appropriate technical and organizational measures, to the extent possible, for the fulfillment of the Licensee’s obligation to respond to a Data Subject Request under Chapter III of the GDPR. Except to the extent required by applicable law, Licensor shall not respond to any such Data Subject request without Licensee’s prior written consent except to confirm that the request relates to Licensee.
5.2. Further, to the extent Licensee, in its use of the Services, does not have the ability to address a Data Subject Request, Licensor shall upon Licensee’s request provide commercially reasonable efforts to assist Licensee in responding to such Data Subject Request, to the extent Licensor is legally permitted to do so and provided that such Data Subject Request is required under applicable GDPR. Any costs arising from such provision of assistance shall be the responsibility of the Licensee, to the extent legally permitted.
6.1. Taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Licensor shall ensure that in respect of all Personal Data it receives from or processes on behalf of the Licensee it shall maintain security measures to a standard appropriate to the: (a) harm that might result from unlawful or unauthorized processing or accidental loss, damage or destruction of the Personal Data; and (b) nature of the Personal Data.
6.2. Licensor shall, with regard to Personal Data, implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR, and particularly those related to possible Personal Data Breaches. Specifically, Licensor shall:
6.2.1. have in place and comply with a security policy that: (a) defines security needs based on a regular Privacy Impact Assessment (“PIA”); (b) allocates responsibility for implementing the policy to a specific individual or members of a team, including having a Data Protection Officer (“DPO”) in place if required by the GDPR or other applicable law; (c) is disseminated to all relevant members, volunteers, and staff; and (d) provides a mechanism for feedback and review;
6.2.2. ensure that appropriate security safeguards and virus protection are in place to protect the hardware and software which is used in processing the Personal Data in accordance with best industry practices;
6.2.3. prevent unauthorized access to the Personal Data;
6.2.4. ensure its storage of Personal Data conforms with the industry practice such that the media on which Personal Data is recorded (including paper records and records stored electronically) are stored in secure locations and access by personnel to Personal Data is strictly monitored and controlled;
6.2.5. have secure methods in place for the transit of Personal Data within the customer support portal (for instance, by using encryption);
6.2.6. use password protection on computer systems on which Personal Data is stored and ensure that only authorized personnel are given details of the password;
6.2.7. take reasonable steps to ensure the reliability of any employee, agent, contractor, or other individuals who have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Personal Data, as strictly necessary for the purposes of the Agreement(s), and to comply with GDPR in the context of that individual’s duties to the Licensor;
6.2.8. ensure that any employees, agents, contractors, or other individuals required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Addendum;
6.2.9. ensure that none of the employees, agents, contractors, or other individuals who have access to the Personal Data publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Licensee;
6.2.10. have in place methods for detecting and dealing with breaches of security (including loss, damage, or destruction of Personal Data) including (a) the ability to identify which individuals have worked with specific Personal Data; and (b) having a proper procedure in place for investigating and remedying breaches of the data protection principles contained in the GDPR, including written records;
6.2.11. have a secure procedure for backing up and storing back-ups separately from originals; and
6.2.12. have a secure method of disposal for unwanted Personal Data including back-ups, disks, printouts, and redundant equipment.
6.3. Licensor shall provide the Licensee with relevant documentation, such as an audit report (upon a written request and subject to obligations of confidentiality), with regard to any data protection impact assessments, and prior consultations with supervising authorities or other competent data privacy authorities, when the Licensee reasonably considers that such data protection impact assessments or prior consultations are required pursuant to Article 35 or 36 of the GDPR or pursuant to the equivalent provisions of any other EU Rule, but in each such case solely with regard to Processing of Personal Data by, and taking into account the nature of the Processing and information available to, the Licensor. Such audit will be conducted at the Licensee’s cost and expense, to the extent legally permitted.
7. SECURITY BREACH MANAGEMENT AND NOTIFICATION
7.1. Licensor shall, in accordance with the GDPR, notify the Licensee and/or the supervisory authority as soon as any (the “Personal Data Breach”) with respect to the Personal Data occurs, but no later than 48 hours from the discovery of such a Personal Data Breach. Licensor’s notification of or response to a Personal Data Breach under this Section 7.1 will not be construed as an acknowledgment by the Licensor of any fault or liability with respect to the Personal Data Breach.
7.2. Licensor will use reasonable efforts to identify the cause of such Personal Data Breach and shall promptly and without undue delay: (a) investigate the Personal Data Breach and provide Licensee with information about the Personal Data Breach, including if applicable, such information a Data Processor must provide to a Data Controller under Article 33(3) of the GDPR to the extent such information is reasonably available, and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach to the extent the remediation is within Licensor’s reasonable control The obligations herein shall not apply to any breach that is caused by Licensee or authorized users. Notification will be delivered to Licensee in accordance with Section 7.3 below.
7.3. Notification(s) of Personal Data Breaches, if any, will be delivered to one or more of Licensee’s business, technical or administrative contacts by any means Licensor selects, including via e-mail. It is Licensee’s sole responsibility to ensure it maintains accurate contact information on Licensor’s support systems at all times.
8. OBLIGATIONS OF THE LICENSEE
The Licensee is solely responsible for:
8.1. Complying, at all times with the GDPR with respect to the processing of Personal Data in connection with the Agreement(s) and the Services;
8.2. Ensuring the processing of the Personal Data by Licensor is lawful;
8.3. Where applicable, ensuring that legally binding consents to the collection, access, use, maintenance, and/or disclosure of the Personal Data in accordance with the GDPR and Licensee policies and procedures have been obtained from each individual and entity (including without limitation donors, consumers, business customers, and/or Licensee employees and contractors) to whom the Personal Data relates;
8.4. Rendering any Personal Data on its systems unusable, unreadable, or indecipherable to unauthorized individuals in accordance with industry standards, applicable law, and any relevant Codes of Conduct;
8.5. Establishing the applicable information security safeguards and associated policies for protecting Personal Data in its facilities. Licensee must communicate the relevant safeguards and policies to Licensor with reasonable advance notice and in writing when Licensor provides Services at a Licensee facility or accesses Licensee’s systems;
8.6. Promptly informing Licensor of any policies it implements with respect to the processing and protection of Personal Data with express instructions as to how these policies should be implemented by Licensor;
8.7. Promptly informing Licensor of any request for erasure with respect to Data Subject’s Personal Data with detailed instructions as to how Licensor should address the request; and
8.8. Providing to Licensor and also promptly update, when necessary, the information indicated below (where applicable): (a) identity and contact information of the Data Protection Officer of the Licensee; (b) identity and contact information of the EU representative of the Licensee; (b) description of the categories of Processing carried out by Licensee with respect to the Services; (c) types of Personal Data to be Processed; and (d) categories of Data Subjects to whom the Personal Data relates.
9. INTERNATIONAL DATA TRANSFERS
9.1. Licensor will only transfer Personal Data outside the EEA, where such transfers are regulated by the GDPR, in compliance with the GDPR. The Licensee authorizes Licensor (and authorizes Licensor to authorize its Sub-processors) to Process Personal Data and to transfer Personal Data to those countries or territories where those Sub-processors are located, consistent with the Agreement(s) and this Addendum.
9.2. Transfers Pursuant to the Standard Contractual Clauses
9.2.1. The Standard Contractual Clauses shall apply to Personal Data that is transferred from the EEA, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Directive and any successor legislation thereto), and (ii) not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for personal data, including but not limited to the EU-U.S. Privacy Shield Framework was in effect prior to May 25, 2018.
9.2.2. Where the Standard Contractual Clauses apply in accordance with Section 9.2.1:
22.214.171.124. Licensor agrees to comply with the terms of the Standard Contractual Clauses, for the purposes of which Licensee and those of its affiliates established in the EEA will be regarded as the Data Exporter(s) and Licensor will be regarded as the Data Importer;
126.96.36.199. the governing law in clause 9 of the Standard Contractual Clauses shall be the law of the Data Exporter;
188.8.131.52. if so required by the laws or regulatory procedures of any jurisdiction, the parties or Licensor and any one or more of its affiliates established in the EEA as required shall execute or re-execute the Standard Contractual Clauses as separate documents setting out the proposed transfers of Personal Data in such manner as may be required;
184.108.40.206. in the event of inconsistencies between the provisions of the Standard Contractual Clauses and this Addendum, the Agreement or other agreements between the parties as regards the Services, the Standard Contractual Clauses shall take precedence;
220.127.116.11. in the event that the Standard Contractual Clauses are amended, replaced, or repealed by the European Commission or under GDPR, the parties shall work together in good faith to enter into any updated version of the Standard Contractual Clauses or negotiate in good faith a solution to enable a transfer of Personal Data to be conducted in compliance with GDPR; and
18.104.22.168. the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by the Data Importer to the Data Exporter only upon Data Exporter’s request.
9.3. Transfers Pursuant to the Privacy Shield
9.3.1. In relation to Personal Data which is transferred by Licensee to Licensor pursuant to the EU-U.S. or Switzerland-U.S. Privacy Shield Framework, Licensor shall only process such Personal Data strictly in accordance with the E.U.-U.S. or Switzerland-U.S. Privacy Shield Principles and Supplemental Principles, as now or hereafter in effect.
10. GENERAL TERMS
10.1. Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this Addendum whether in contract, tort, or under any other theory of liability, is subject to the limitation of liability section of the Agreement(s), and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement(s) and this Addendum.
10.2. No alteration, amendment, or modification of this Addendum will be valid unless in writing and signed by an authorized representative of both parties.
10.3. Any ambiguity in the terms of this Addendum will be resolved to permit Licensor or Licensee to comply with applicable laws.
10.4. This Addendum is the entire and complete agreement between the parties with respect to the privacy and security of Personal Data and supersedes any other agreements, representations, or understandings whether oral or written. All clauses of the Agreement(s), that are not explicitly amended or supplemented by the clauses of this Addendum, and as long as this does not contradict with compulsory requirements of GDPR, under this Addendum, remain in full force and effect and shall apply, including, but not limited to: Governing Law and Dispute Resolution, Jurisdiction, Limitation of Liability (to the maximum extent permitted by the GDPR).
10.5. Should any provision of this Addendum be found invalid or unenforceable pursuant to any applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Addendum will continue in effect.
10.6. If the Licensor makes a determination that it can no longer meet its obligations in accordance with this Addendum, it shall promptly notify the Licensee of that determination, and cease the Processing or take other reasonable and appropriate steps to remediate.
10.7. Notices required under this Addendum shall be to be sent according to the Agreement(s) with a copy (which shall not constitute notice via e-mail to: [e-mail address].
APPENDIX 1. TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Standard Contractual Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data Exporter: The Data Exporter is the legal entity that has executed the Agreement(s) with the Data Importer.
Data Importer: The Data Importer is the legal entity that has executed the Agreement(s) with the Data Exporter, which processes Personal Data upon the instruction of the Data Exporter in accordance with the terms of the Agreement(s).
Data Subjects: The personal data transferred concerns the following categories of data subjects: Categories of Data Subjects, as determined by the Data Exporter, may include customer representatives and (end) users, such as employees, job applicants, contractors, collaborators, partners, suppliers, donors and customers of the Licensee.
Categories of Data: The personal data transferred concerns the following categories of data: Categories of Personal Data, as determined by the Data Exporter, may include, among other information, personal contact information such as name, address, telephone or mobile number, fax number, e-mail address, and passwords; employment details including employer name, job title and function, and business contact details.
Purposes of the transfer / Processing operations: The personal data transferred will be subject to the following basic processing activities: The objective of Processing of Personal Data by Data Importer is the performance of the Services pursuant to the Agreement(s) in place between the Data Exporter and the Data Importer.
APPENDIX 2. TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Standard Contractual Clauses.
Description of the technical and organizational security measures implemented by the Data Importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The Data Importer will implement reasonable administrative, physical, managerial, and technical controls safeguards for the protection of the security, confidentiality, and integrity of Personal Data with respect to the Services in accordance with applicable legal requirements, and as set forth in Data Importer’s Section 6 of this Addendum, and as otherwise agreed by the parties in writing. Data Importer will not materially decrease the overall security of the Services during the term of the Agreement(s).