This Platform Services Agreement (“Agreement”) is entered into by and between Round Up and Donate, Inc., a corporation formed under the laws of Delaware, with an address at 1811 W. 21st Place, Suite #2, Chicago, IL 60608 (“Round Up and Donate”) and the Partner, a nonprofit corporation (“Partner” or “Customer”). This Agreement will be effective as of the date at which the Partner indicates its acceptance of this Agreement during the signup process to be listed on the Round Up and Donate App.
- Make the Round Up and Donate app and website donation platform (the “Platform”) available to the Partner to allow users to donate to the Partner.
- Provide reasonable technical support, marketing templates or recommendations, reporting on donations made to the Partner and the individuals making those donations, or other services as agreed to by Round Up and Donate, Inc. and the Partner (“Services”).
Customer Requirements. In connection with Partner’s use of the Platform Services, Partner shall:
- Comply with all applicable laws, court orders, rules and regulations, including, without limitation, the Foreign Corrupt Practices Act and related international anti-corruption laws and the Digital Millennium Copyright Act and related copyright laws.
- Use reasonable security precautions to protect access to the Partner’s account with the Round Up App or payment processor account for receiving donations.
- Give Round Up and Donate, Inc. true, accurate, current, and complete account information;
- Promptly notify Round Up and Donate, Inc. of any known or suspected unauthorized use of Partner’s account or any other breach of security.
Customer Restrictions. The Partner shall not, directly or indirectly, alone or with another party:
- Copy, distribute, modify, reverse engineer, decompile, or attempt to obtain the source code or algorithms of the Platform, the Round Up App website or any other intellectual property of Round Up and Donate, Inc. or its third party service providers.
- Sell, rent, lease, license, sublicense, resell or transfer any applications or intellectual property of Round Up and Donate, Inc. or its licensors.
The Partner represents and warrants that it is a 501(c)3 nonprofit organization incorporated within and governed by the laws of the United States and that it holds valid tax-exempt status with the IRS. If there is a change in the Partner’s country of incorporation or tax-exempt status the Partner shall notify Round Up and Donate, Inc. immediately.
Round Up and Donate, Inc. may choose to deny access to the Platform to a nonprofit organization at Round Up and Donate, Inc.’s sole discretion. Organizations that promote hatred, violence, or racism are not eligible to participate in the Platform. All Partners must be approved by Round Up and Donate, Inc. before they are eligible to use the Platform.
REPORTING AND TAX RECEIPTS
Partner organizations may receive donations through the Round Up App platform and will be provided with the name, email address and amount donated to allow the Partner to provide tax receipts to donors, if the Partner organization chooses to do so. Round Up and Donate, Inc. does not issue tax receipts, nor does it represent or warrant that donations will be tax deductible under the law. Round Up and Donate, Inc. does not provide legal or tax advice, and nothing contained herein should be construed as such.
Round Up and Donate, Inc. will provide reporting to the Partner that will include the name and email address of each user who has chosen to give to the Partner through the Platform. The Partner may use this information to contact the donor, unless the donor has chosen to remain anonymous.
PAYMENT OF DONATED FUNDS
The Round Up Platform utilizes Stripe as its payment processor. User donations are transferred into a Stripe account owned by each Partner organization, minus Stripe’s payment processing fees, and can be transferred into the Partner’s bank account(s).
Round Up and Donate, Inc. reserves the right to wait to deposit donated funds into the Partner’s Stripe account to prevent chargebacks, credit card fraud or other issues.
Payment processing services for Partners on the Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a Partner on the Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Round Up and Donate, Inc. enabling payment processing services through Stripe, you agree to provide Round Up and Donate, Inc. accurate and complete information about you and your business, and you authorize Round Up and Donate, Inc. to share this and other transaction information related to your use of the payment processing services provided by Stripe.
Beginning on the Effective Date and continuing throughout the term of this agreement, Partner shall pay to Round Up and Donate, Inc., according to the following structure (the “Fees”):
- Round Up and Donate, Inc. charges no platform fee in months for which the Partner has received less than $100.00 in donations, net of payment processing fees. Payment processing fees charged by Stripe will continue to apply.
- In months in which the Partner receives more than $100.00 in donations after payment processing fees, the Partner shall pay Round Up and Donate, Inc. in an amount equal to 10% of the total donations received by the Partner that month, net of payment processing fees. This percentage fee falls as donation volume for a given month rises:
- A 10% fee is applied to the first $2,000.00 in donations received by the Partner in a given month.
- An 8% fee applies for the next $3,000.00 in donations received by the Partner in a given month.
- A 7% fee applies for the next $5,000.00 in donations received by the Partner in a given month.
- A 6% fee applies for the next $10,000.00 in donations received by the Partner in a given month.
- After this level, please contact our sales team to craft a customized pricing package.
- Round Up and Donate, Inc. may choose to offer additional services that may have separate pricing, to be separately agreed upon by Round Up and Donate, Inc. and the Partner.
- In the event of chargebacks or customer refund requests, Round Up and Donate, Inc. may add an amount equal to the amount Round Up and Donate, Inc. was required to pay back to the customer or payment processing platform to the Partner’s fee for the next month to cover this cost.
- This fee structure may change from time to time at Round Up and Donate, Inc.’s discretion.
Invoices are sent monthly, and are due on receipt.
All payments under this Agreement are exclusive of taxes imposed by any governmental entity. Partner shall pay any applicable sales taxes.
In the event that the Partner is late in providing payment for two or more invoices, Round Up and Donate, Inc., reserves the right to debit the overdue amount from the donation balance accrued to the Partner in Stripe. A Partner may also request this form of payment as an alternative to receiving an invoice.
TERM OF AGREEMENT
This Agreement will begin on the Effective Date and will continue unless either party informs the other party in writing of its intent to terminate. Either party may terminate this Agreement upon written notice to the other party.
Immediately upon the termination of this Agreement for any reason, Round Up and Donate, Inc. may remove the Partner from being listed as a charity within Platform. No further donations will be processed. The Partner must pay any Platform fees that may be outstanding upon termination.
Information that is disclosed by one party to the other party, and that is marked “confidential” (including this Agreement), will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information, or use such information other than for the purposes for which it was provided, without the written consent of the other party; this limitation will apply for a period of one year after disclosure of such confidential information. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already known to the receiving party at the time of disclosure; (c) is developed by the receiving party independent of such information; or (d) is rightfully received from a third party without restrictions on disclosure or use. Neither party will issue any public announcement regarding the existence or content of this Agreement without the other party’s prior written approval. Notwithstanding the foregoing: either party may include the other party’s marks, names and logos in presentations, marketing materials, and customer lists for general marketing purposes provided such use is in accordance with the trademark and logo usage guidelines provided by a party, however, if either party does not wish the other to use its mark, name or logo in such materials, it may inform the other party of this desire and the other party shall comply; and in addition, notwithstanding the foregoing, either party may disclose this agreement to its accountants, attorneys and financial advisors and as required by law, rule or regulation.
Any logos or other trademarked materials that the Partner shares with Round Up and Donate, Inc., continue to be the sole intellectual property of the Partner.
Round Up and Donate, Inc. may provide marketing templates or other resources to aid the Partner in marketing the Platform to potential donors.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
RELATIONSHIP OF THE PARTIES
Round Up and Donate Inc. and the Partner (collectively, the “Parties”) are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
WARRANTIES AND DISCLAIMER
Each party represents and warrants that it has full power and authority to enter into the Agreement. THE SERVICE AND PLATFORM IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER ROUND UP AND DONATE, INC. NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICE IS FREE FROM DEFECTS. ROUND UP AND DONATE, INC DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS PLATFORM AND SERVICE.
Partner will indemnify, defend, or at its option settle, any third party lawsuit or proceeding brought against Round Up and Donate, Inc., its Affiliates, and any of their respective officers, directors, employees and agents, based upon or otherwise arising out of: (1) a claim alleging facts that would constitute a breach of Partner’s warranties per this Agreement, and (2) Partner’s use of the Platform other than in accordance with the terms hereof.
LIMITATION OF LIABILITY
EXCEPT FOR PARTNER’S INDEMNIFICATION OBLIGATIONS NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN, AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE PARTNER TO ROUND UP AND DONATE, INC. AS A PLATFORM FEE. The parties agree that (i) the mutual agreements made in this Section reflect a reasonable allocation of risk, and (ii) that each party would not enter into the Agreement without these limitations on liability.
Each party will comply with all laws, rules and regulations, if any, applicable to it in connection with the performance of its obligations under the Agreement. All notices will be in English and in writing and (a) if sent to Round Up and Donate, Inc. to the address identified above and (b) if sent to Partner via postal mail or email. Notice will be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, or (iii) upon verification of receipt of registered or certified mail, or after 1 business day in the case of Round Up and Donate, Inc. giving notice via email to the partner. Except as expressly set forth herein, neither party may assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, provided however that: Round Up and Donate, Inc. may assign its rights or delegate its obligations hereunder to any person or entity that acquires all or substantially all of its assets, provided however that Round Up and Donate, Inc. shall provide Partner written notice of such assignment or delegation promptly thereafter; and Partner may assign its rights or delegate its obligations hereunder to any person or entity that acquires all or substantially all of its assets, provided however that Partner must provide Round Up and Donate, Inc. with written notice of any such assignment or delegation no less than ten (10) days prior to the effectiveness of any such assignment or delegation. Round Up and Donate, Inc. may, at its discretion, terminate this Agreement at any time within thirty (30) days after receiving such notice, effective immediately upon providing written notice of termination to Partner. Any assignment or other transfer of rights or delegation by a party in accordance with this Section shall not operate to relieve such assigning party of its responsibilities under this Agreement. The assigning party will require its assignees, transferees, or delegates to agree, in writing, to the terms and conditions of this Agreement.
ARBITRATION AND APPLICABLE LAW
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either Partner or Round Up and Donate, Inc. has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between Partner and Round Up and Donate, Inc., then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA, including any expedited procedures. The arbitration shall be conducted by a single arbitrator appointed by the AAA. The arbitrator shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Arbitration hearings will be held in Chicago, Illinois or any other location that is mutually agreed upon by Partner and Round Up and Donate, Inc. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Each party shall fully perform and satisfy the arbitration award within (15) days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of the appeal, the right to bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
This Agreement is governed by the laws of the State of Delaware without regard to conflicts of laws and principles. Access or use of the Platform is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. The performance of Round Up and Donate, Inc. under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Round Up and Donate, Inc.’s right to comply with governmental, court and law enforcement requests or requirements relating to the Partner’s access or use of the Platform or information provided to or gathered by Round Up and Donate, Inc. with respect to such use, as required by law.
Round Up and Donate, Inc. shall not be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, acts of the Partner, acts of third parties not under Round Up and Donate, Inc.’s control, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, denial of service attacks, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of services.
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
MODIFICATION OF AGREEMENT
Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.