Terms and Conditions
Please read the following Terms and Conditions carefully. This Mobile Commerce and Donations Services Agreement (“Agreement”), dated ________________(the “Effective Date”), is made and entered into by and between smsELECT.NET and ______________________ (“Organization”). All capitalized terms used on this signature page and not otherwise defined shall have the meanings set forth in the attached Terms and Conditions.
1. smsELECT.net Service: smsELECT.net shall provide to Organization mobile payment services, including purchase and donation data collection, encryption, storage and verification, in each case in accordance with this Agreement. Organization shall serve as merchant of record using its own merchant account.
2. Fees: Where applicable, In connection with the services to be rendered by smsELECT.net hereunder, Organization agrees to pay smsELECT.net the fees specified on website (smsElect.net) unless otherwise authorized in writing from smsElect.
3. Term of Agreement: At smsElect.net our tools are to be used as you feel necessary therefore there is no need for term limited contracts. Should you feel it necessary to stop using smsElect's platform please do so and send written notice to info@smsElect.net to be removed from the platform.
4. General Disclaimer and Acknowledgement: Organization acknowledges that it has received from smsELECT.net, and had an ample opportunity to consider and discuss with both smsELECT.net and its own independent advisors, the following disclaimers and statements of risk, Organization wishes to proceed with the campaign on the understanding that it assumes all risks of the types described below.
(a) The success of any mobile fundraising campaign is contingent upon a variety of factors, including among others:
(i) the rules and regulations that may be imposed by the mobile carriers.
(ii) the extent and quality of the cell phone coverage which is available at the time and location of the event, and
(iii) use of and access to properly functioning mobile devices, display equipment, server technology, and networks. Notwithstanding anything to the contrary herein or in any other agreement between the parties hereto, neither smsELECT.net nor its parent company or affiliates shall be held responsible or liable for any losses or damages to Organization or the campaign due to failure of any factors mentioned above, or of any other factors or events not under the control of smsELECT.net.
(b) Organization recognizes that smsELECT.net is attempting to set up the facilities necessary to enable the mobile features of the proposed campaign in a short amount of time, neither smsELECT.net nor its parent company or affiliates will be held responsible or liable for any technical failure or interruption of service before, during or after the campaign.
(c) Given the risks described above, as well as the ordinary risks attendant on any campaign reliant on the use of mobile technology, Organization represents to and covenants with smsELECT.net that it has, or will during the campaign have, an alternative method in place to collect donations should any technical or other issues arise which might otherwise prevent it from receiving messages or donations.
5. Terms and Conditions: The Terms and Conditions which are attached to this Agreement are by this reference incorporated herein and made a part hereof. In witness whereof, the parties have entered into this Agreement, intending to be bound hereby as of the Effective Date. These Terms and Conditions (including all exhibits and referenced policies, the “Terms and Conditions”) are incorporated into the Mobile Commerce and Donations Services Agreement between smsELECT.net and Organization. smsELECT.net and Organization hereby agree as follows:
1.0 DEFINITIONS: The following terms used in this agreement have the following defined meanings:
1.1 “Affiliate” means any entity that controls, is controlled by or under common control with smsELECT.net.
1.2 “Agreement” means this Mobile Commerce and Donations Services Agreement and all Exhibits, supplements, and amendments hereto.
1.3 “Donate Campaign” means the combination of a Keyword and Text Phone Number, activated in smsELECT.net’s system and assigned to an Organization for the purpose of receiving pledges of any dollar amount through text message, and completion of the donation on the mobile payment page.
1.4 “Donation” means a number texted into a Donate campaign, reflecting the dollar amount a Donor intends to donate to Organization.
For example, if a Donor texted “NPO 100” to 95495, the Donation is $100. It is important to note that a Donation does not equal a dollar
amount credited to the organization until the Donor has completed payment and has provided credit card information and approval to
process payment on the payment page.
1.5 “Donor” means an individual or entity who makes a donation to a Mobile Donate Campaign via text message.
1.6 smsELECT.NET means SMSelect.net.
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1.7 “smsELECT.net Materials” means any graphics, images, content, links to Products, or other materials provided by smsELECT.net to Organization.
1.8 “smsELECT.net Policies” means any and all smsELECT.net standard policies for the Service and the Platform as referenced herein, including without limitation the Service Level Policy, and the Data Security and PCI Compliance Program Policy.
1.9 “Keyword” means the word set up in smsELECT.net’s system that determines which Organization a Donor is assigned to. For example, if a Donor texted “NPO 100” to 555-555-5555, the keyword is “NPO”. The Donor in this example will be assigned by the system to the Organization for which the keyword “NPO” has been activated. If a Donor incorrectly spells the Primary keyword there is a likelihood that the donation will not be received by the system.
1.10 “Organization” means the entity signing the Agreement as such on page 1, above.
1.11 “Organization Materials” means any graphics, images, content, links to Products, or other materials provided by Organization to smsELECT.net for purposes of this Agreement.
1.12 “Organization Service” means those portions of the user interface visible on the screen of any handheld mobile device through which a user of such device is able to navigate directly to the Service via a Link.
1.13 “End User” means the ultimate donor via the Platform.
1.14 “Link” means either a URL link or service call (as applicable) that is supplied by smsELECT.net to Organization or created by Organization in accordance with the terms of this Agreement. The link or service call is integrated by Organization into the Organization Service for purposes of connecting to the Service and enabling Transactions.
1.15 “Merchant Account Tool” means the Service’s account management tool that allows Organization to register Products on the Service and otherwise manage Organization’s account, in each case in accordance with this Agreement and the Specifications. 1.16 “Platform” means smsELECT.net’s proprietary mobile payments platform, as described in the Specifications. 1.17 “Product” means a product of Organization that is made available for purchase by Organization on the Organization Service and is registered by Organization in the Service using the Merchant Account Tool; for purposes of this Agreement, “Product” shall include charitable donations.
1.18 “Service” means smsELECT.net’s mobile payment service, which includes purchase data collection, encryption, and storage and verification, in each case as provided via the Platform in accordance with this Agreement.
1.19 “Text In Phone Number” means the 10 digit code that Donors will text their Donation to. For example, if a Donor texted “NPO 100” to 555-555-5555, the Text In Phone Number is “555-555-5555”. The Text In Phone Number will be assigned by smsELECT.net; it is not possible to pick a custom Text In Phone Number.
1.20 “Specifications” means smsELECT.net’s description of the features, capabilities and functionality of the Service and the Platform, as modified by SMSELECT.NET from time to time. The current version of the Specifications is available at www. smsELECT.net. 1.21 “Transaction” means the payment processing event that affects the purchase of a Product by an End User who clicks through a Link to the Service. For purposes of this Agreement, “Transaction” shall include free, no-cost, refund and test transactions.
2.0 ORGANIZATION RESPONSIBLE FOR EVENTS AND ACTIVITIES; COLLECTION OF DONATIONS
2.1 Organization shall be solely and exclusively responsible for the promotion, marketing, organization, and staging of all events and activities held or designed to encourage pledges and donations, and for developing a marketing strategy related to the Donate campaign. If specifically requested to do so, smsELECT.net may in its discretion offer information about best practices, but neither smsELECT.net nor its Affiliates will actively promote any Organization campaign, and they shall have no responsibility for implementing any such practices and no liability for the use or implementation thereof.
2.2 Organization acknowledges and agrees that:
2.2.1 A Donation text does not incur an automated transfer of funds; instead the donor will be directed to a mobile payment page, where the donor will be asked to provide credit card information and press “submit” to complete the donation. 2.2.2 smsELECT.net cannot and does not guarantee that any donor will complete a transaction of the exact texted amount, or of any amount at all.
2.2.3 smsELECT.net is not responsible for any (a) donations that don’t result in funds being collected by Organization, (b) incomplete transactions made by Donor, or (c) event or occurrence that inhibits potential Donors from texting in a donation. Such instances may include, but are not limited to: Donors typing an incorrect Key word, Text In Phone Number, or pledge amount; technical issues or service interruptions with mobile carrier networks or Donor’s mobile devices; technical or display issues during a Donate to Screen event.
2.2.4 SMSELECT.NET shall not be in any way liable or responsible for any damages related to incomplete or faulty transactions between Donor and Organization.
2.2.5 Organization will include a link to www.smsELECT.net and the phrase “Technology provided by smsELECT.net somewhere on its own website.
3.0 MOBILE DONATE AND MOBILE GIVING FOUNDATION (MGF)
3.1 A Mobile Donate Campaign is completely separate and unrelated to a Mobile Giving Foundation Campaign in which donors can text
a $5 or $10 donation that automatically adds to their phone bill.
3.2 The Mobile Giving Foundation is not involved in any part of your Mobile Donate Campaign.
3.3 Donations made during a Mobile Donate Campaign will NOT incur automated billing on the Donor’s telephone bill or transfer of funds.
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4.1 smsELECT.net will use commercially reasonable efforts to operate the Service in material accordance with the Specifications and the terms of this Agreement. SMSELECT.NET shall provide hosting services as to the Platform and the Services. The smsELECT.net mobile purchase pages and all applicable online or mobile payment pages of the Organization Service shall prominently feature the “Powered by smsELECT.net” logo and/or the phrase: “Powered by www.smsELECT.net”. SmsELECT.net may identify Organization in advertising and marketing materials listing those parties utilizing smsELECT.net products and services.
4.2 Screencasting: If Organization opts to include Screencasting with their Mobile Donate campaign, Organization may adjust content displayed on the screen layout using smsELECT.net’s online administration platform. Changes not editable through the admin panel can be requested and shall incur an additional fee.
4.3 Security: smsELECT.net has implemented and will take reasonable steps to maintain data security procedures as described in its Policies; provided, however that smsELECT.net does not guarantee the security of the Services or Transaction data. SmsELECT.net shall not be responsible in the event of any breach of its security systems, provided that smsELECT.net has used commercially reasonable efforts to prevent any such breach in accordance with the SMSELECT.NET Policies. Organization further acknowledges and agrees that smsELECT.net is not responsible for the security of Transaction data or information or any other information stored on Organization’s servers or any other party’s servers.
4.4 Support; Risk of Loss:
4.4.1 smsELECT.net shall provide service levels and technical support to the Organization in accordance with the smsELECT.net Policies. Unless otherwise set forth herein, SMSELECT.NET shall not be obligated to provide technical support to anyone other than Organization.
4.4.2 As between the parties, Organization will bear all risk, liability and responsibility for: (a) any non¬delivery, misdelivery, theft, or other mistake or act in connection with the delivery of Products; (b) any non¬conformity or defect in any Products, (c) sourcing, storing, fulfilling, and delivering all Products, and (d) providing End User customer support, in each case in accordance with the terms of this Agreement and all smsELECT.net Policies. Organization will be the merchant of record for all Transactions, and Organization’s name will appear on the End User’s credit card statement.
5.0 SERVICE FEES; LATE PAYMENT; TAXES; REPORTING
5.1 Organization agrees to pay smsELECT.net the fees specified on website (smsElect.net) unless otherwise authorized in writing from smsElect. Pricing is subject to change at any time, without prior notice. All upfront fees are due when submitting this signed Agreement. Monthly and per donation fees are due when invoiced.
5.2 Late payments incur a $5 late charge after 30 days of non-payment. A $5 charge will be applied for every 30 days payment is withheld.
5.3 Organization will bear all risk of refunds, chargebacks, rebills, bad debt expense, and returns (including any gateway, merchant account, banking and other fees) occurring in connection with Transactions. Organization shall be solely responsible for the categorization, assessment, collection and payment of all taxes, fees and costs that may apply to the purchase of the Products and the provision of the Organization’s Service. SmsELECT.net will make available to Organization a report, statement, or other accounting (within the Merchant Account Tool or by email to Organization’s email address on file) for each calendar month during the term of this Agreement during which Transactions take place. Other than federal and state net income taxes imposed on smsELECT.net by the United States, Organization will bear all taxes, duties, and other governmental charges resulting from this Agreement. Organization is responsible for reporting all income and calculating and paying all taxes (including, without limitation, federal and state income taxes, FICA (Social Security or Medicare) taxes, FUTA taxes, state unemployment insurance taxes, state disability insurance taxes, sales taxes and any other taxes related to its sale or license of Products or otherwise relating to the transactions contemplated by this Agreement. All payments to Organization will be in U.S. Dollars. PAYMENTS WILL BE MADE EVERY SEVEN DAYS. For example, If a cause receives donations on a Sunday they will receive the donations payout ( minus smsElect.net transaction cost) the following Sunday. All reports, statements, and other accountings provided to Organization will be conclusive, final and binding, unless Organization gives smsELECT.net written notice stating the specific basis for objection within one year after the date rendered. Organization will not maintain any action or proceeding against smsELECT.net with respect to any report, statement, or other accounting unless Organization commences that action or suit against smsELECT.net within six months following the date that Organization provides smsELECT.net with the written notice referred to in the immediately preceding sentence. Any such action or proceeding will be limited to a determination of the amount of monies, if any, payable by smsELECT.net to Organization for the accounting periods in question, and Organization’s, or its client’s, sole and exclusive remedy will be the recovery of those monies with no interest thereon. Notwithstanding anything to the contrary herein, to the extent smsELECT.net provides tax rate information to Organization (or relies on tax rate information in preparing reports or calculating remittances) (a) smsELECT.net does not guarantee or warrant the accuracy of such data, (b) the provision of such tax data (i)shall be deemed excluded from the definition of Service under the Agreement for purposes of any indemnification obligations herein, and (ii) shall not constitute tax advice to any party from any other party or its representatives, and Organization remains solely responsible for tax matters as described above.
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6.1 Users of the Organization Service who navigate to the Service will be deemed smsELECT.net’s users, and users of the Organization Service who enter into Transactions on or through the Service will be deemed smsELECT.net’s customers, in each case solely to the extent necessary to enable smsELECT.net to meet its compliance obligations hereunder. Accordingly, all of smsELECT.net’s rules, policies, and operating procedures concerning use of the Service will apply to those customers. SmsELECT.net may change its policies and operating procedures at any time in its sole discretion.
7.0 LINKS; ORGANIZATION MATERIALS
7.1 Subject to the terms of this Agreement, Organization (or its designees) will integrate and maintain Links for each Product in the Organization Service and will use commercially reasonable efforts to promote such Products. Organization will supply to smsELECT.net accurate and complete information for each Product to be made available for Transactions on the Service, together with any other related information, requested within the Merchant Account Tool or otherwise reasonably requested by smsELECT.net. Organization will update such information as frequently as necessary so that the information is at all times current, accurate, and complete. SmsELECT.net may, but is not obligated to, provide new or modified Links to Organization from time to time. If smsELECT.net provides new or modified Links to Organization, Organization must promptly use such Links (and, if applicable, cease to use any replaced or superseded Links). Upon request by smsELECT.net at any time, Organization will provide Organization Materials to smsELECT.net for its review and written approval (which written approval may, for purposes of this Section, be given by email). SmsELECT.net may approve of or reject Organization Materials in its sole discretion. Organization must not display on the Organization Service (or elsewhere) any Organization Materials that smsELECT.net has rejected. If Organization provides Organization Materials, it does so at its sole cost and expense and without any assurance that any Organization Materials will be approved by smsELECT.net. Subject to any approval by smsELECT.net required under this Section, Organization is solely responsible for the development, operation, and maintenance of Organization Materials and the Organization Service.
8.0 COMPLIANCE; NO PASS-THROUGH REPRESENTATIONS AND WARRANTIES; PCI
8.1 Organization is solely responsible for the development, operation, and maintenance of the Organization Service and for all Organization Materials and other information and materials that appear on the Organization Service and any associated service offerings of Organization. SmsELECT.net is not in any way responsible for any damages related to text messages appearing on screen, including language damaging to your organization, your event or your audience.
8.2 Organization shall not: (i) distribute false or misleading information or information that is likely to be inflammatory or offensive on moral, religious, or political grounds to any material group of people or to Operators or Third Party providers, or (ii) send unsolicited content or messages to end users.
8.3 Organization hereby represents, warrants and covenants that, unless smsELECT.net has expressly granted an exception in writing directly related to the conduct in question, the Organization Service, Products and Organization Materials do not and will not (a) violate or infringe, or contain or link to any materials that violate or infringe, the rights of SMSELECT.NET or any third party; (b) contain or promote obscene or illegal products, services, or materials; (c) promote discrimination based upon race, sex, religion, nationality, disability, age, or sexual orientation, or (d) violate any applicable laws governing the collection or storage of personally-identifiable information or marketing communications, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, CTIA MMA best practices guidelines posted at www.mmaglobal.com/bestpractices and all other laws and regulations governing email and SMS/text message communications. Organization must not otherwise commit any act or omission in connection with Organization’s use of the Service that may subject smsELECT.net or its licensors or suppliers to legal liability of any nature.
8.4 Organization shall at all times comply with all applicable terms, conditions, and requirements set forth by smsELECT.net’s Vendors and Affiliates.
8.5 Organization shall not, expressly or by implication, make or pass on to any third party (including without limitation End Users) any representation or warranty regarding the Service, the Platform, Transactions, or otherwise regarding smsELECT.net or its products or services. Organization must not make any statement, whether on the Organization Service or otherwise, that contradicts, or is inconsistent with, this Section 8. SmsELECT.net (a) shall not be responsible or held liable for the acts or omissions of any third party service providers to Organization, including without limitation smsELECT.net Partners, and (b) makes no representations, warranties or covenants as to the performance of such third parties.
8.6 Organization understands and agrees that the Organization Service, or relevant portions thereof, may need to be approved by smsELECT.net and other third parties before Organization may use Links on the Organization Service. SmsELECT.NET will notify Organization if approval is required, at which time Organization must, if applicable, immediately cease using the applicable Links until the
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time, if any, that smsELECT.net notifies Organization that approval has been given. smsELECT.net and applicable third parties may grant or withhold approval of the Organization Service, and applicable portions thereof, in their sole discretion.
9.0 TERM AND TERMINATION
9.1 The term of this Agreement will be as set forth in the signature page of this Agreement. If no term is specified in the signature page of this Agreement, the term of this Agreement will commence upon the Effective Date and will continue until terminated in accordance with this Agreement.
9.2 smsELECT.net may suspend its performance under this Agreement at any time upon written notice to Organization.
9.3 On and after termination of this Agreement,
(a) any provision which, by its nature or express terms should survive, including without limitation Sections 1, 8.1, 9.3, 10, 12, 11, 14, and 15 hereof, will survive such termination;
(b) any and all liabilities accrued prior to the effective date of the termination will survive; and
(c) smsELECT.net will have no obligation to perform under this Agreement.
10.0 INTELLECTUAL PROPERTY
10.1 Organization will not have any rights to the Platform, the Service, or any smsELECT.net Materials except as expressly granted in this Agreement, and smsELECT.net and its licensors reserve all right, title, and interest (including, without limitation, all intellectual property rights) in and to such properties. smsELECT.net grants to Organization a nonexclusive, revocable right to use sms.ELECT.net Materials solely for inclusion on the Organization Service and solely for using Links and promoting Products during the term of this Agreement. Organization must not use, modify, copy, distribute, display, or make available any smsELECT.net Materials for any other purpose. Organization must follow all guidelines for the use of the trademarks of smsELECT.net and its licensors, as those guidelines may change from time to time. The license granted in this Section will terminate upon any termination of this Agreement. smsELECT.net may revoke the license granted in this Section at any time by providing written notice to Organization.
11.1 smsELECT.net and Organization each agree to retain in confidence all non-public information, trade secrets and know-how disclosed pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). Without limiting the effect of the previous sentence, the terms and conditions of this Agreement, the Platform, the Service, the Organization Service, all related documentation provided by either party to the other, and the results of all evaluations, use and testing of the Platform by the parties, shall all constitute Confidential Information without need for any marking or designation.
11.2 Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, affiliates and agents as is reasonably required in connection with the exercise of its rights and obligations under this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order. Notwithstanding the foregoing, either party may disclose the existence and terms of Agreement: (x) to legal counsel of the parties; (y) in confidence, to Version 1.1