ModernGiver.com is a website that allows an organization to create a mobile website that is for the use of collecting donations via credit and debit cards (the "Services") through our website located at https://www.ModernGiver.com and other online areas owned or operated by us, such as our Facebook and mobile phone applications (the "Site").
Conditional Use of Our Site and Services
Your permission to use ModernGiver.com is conditioned upon your agreement that you:
Your Account And ModernGiver.com Profile
You will need to register by creating an account with ModernGiver.com in order to publish Content on the Site or obtain access to certain Services. When you register, you will obtain unique log-in credentials (a “User ID”). Access to the ModernGiver.com Site and Services is not authorized by any other person or entity using your User ID and you are responsible for preventing such unauthorized use. Individuals and entities whose privilege to access the Site or use the Services has previously been terminated by ModernGiver.com may not register for an account, nor may you designate any of those individuals to use your account on your behalf.
ModernGiver.com relies on User IDs to know whether users accessing the Site and using our Services are authorized to do so. If someone accesses our Site or Services using a User ID that we’ve issued to you, we will rely on that User ID and will assume that access has been made by you. You are solely responsible for any and all access to the Site or use of the Services by persons using your User ID. Please notify us immediately if you become aware that your User ID is being used without authorization.
Non-Confidentiality, Security And Privacy
You understand that much of the information that you submit to us is submitted precisely for the purpose of disclosure in a variety of ways by ModernGiver.com, and therefore such information is not subject to any confidentiality obligation. Other information, such as credit card information provided in connection with any purchase, is maintained with appropriate privacy and security protections.
Any communications between you and ModernGiver.com, such as email or other correspondence, in which you offer suggestions or comments for improving or modifying our Services will be deemed by us to be non-confidential and non-proprietary, and you agree that such information may be used by us without any limitation whatsoever.
Rules Regarding Information And Other Content
When you use the Site, you can publish and obtain access to various kinds of information and materials, all of which we call "Content." Content also includes information and materials posted to the Site by you. You agree not to revise or obscure Content posted by others (including advertising and promotions authorized by ModernGiver.com), and you agree not to post or use any Content in any manner that:
Though we strive to enforce these rules with all of our users, you may be exposed through the Site or Services to Content that violates our policies or is otherwise offensive. You may use the Site and Services at your own risk. We may, but are not obligated to, terminate user accounts and/or remove Content from the Site if we determine or suspect that those accounts or Content violate the terms of this Agreement or the applicable agreement with the offending user(s). We take no responsibility for your exposure to Content on the Site whether it violates our content policies or not.
General Rules Of User Conduct
It is our goal to make the use of our Site and Services a good experience for all of our users, so you agree not to do any of the following:
Links To Third Party Sites
We don't have control over websites that ModernGiver.com may link to. ModernGiver.com may contain links to third party websites that are not owned, operated, or controlled by ModernGiver.com. Therefore, we cannot and do not assume responsibility for the content, privacy policies, or practices of such websites or the companies that own them. Additionally, we cannot and will not censor or edit the content of any third party site. By using ModernGiver.com you expressly relieve us from any and all liability arising from your use of any third party website.
Receiving your Funds from Card Transactions
We pay you for your transactions (minus our fees), at a schedule communicated to you once your use of Modern Giver is approved. (Payouts for your card transactions are typically sent to your bank within 7 days). A certain amount of your funds may be subject to an additional hold period (e.g. Reserve Account) with terms determined by your perceived risk and transaction history. You are responsible for refunds, returns, and liable for customer disputes (chargebacks).
Modern Giver Fees
You agree to pay the Fees (“Fees”) assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to the Fee Schedule of 4.9% flat rate of all transactions occurring on your Modern Giver Site and incorporated into this Agreement by reference. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
You acknowledge that you are also responsible for any penalties or fines imposed on Modern Giver or directly to you by any Network or financial institution as a result of your activities.
It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services.
Pursuant to the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return with the IRS for each calendar year, reporting all payment card transactions and third party network transactions with merchants occurring in that calendar year. You acknowledge that we will report to the Internal Revenue Service the total amount of the payments you receive each calendar year as required by law.
Disclaimers of Warranty
Limitations of Liability
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO DISCONTINUE YOUR USE OF ModernGiver.com. IN NO EVENT SHALL OUR LIABILITY, OR THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, OR MERCHANTS, FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE AND SERVICES EXCEED THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE AT ISSUE. WE, OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS, SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON THE SITE AND SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless ModernGiver.com, its parent company, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney's fees) arising from: (i) your use of and access to ModernGiver.com;; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any Content submitted by you causes damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of ModernGiver.com.
Reservation of Rights and Release
ModernGiver.com reserves the right, but has no obligation, to monitor, or take any action ModernGiver.com deems appropriate regarding disputes that you may have with other customers of ours. To the extent the law permits, you release us from any claims or liability related to any Content posted on the Site and from any claims related to the conduct of any other customers of ours or any Merchants. You hereby waive California Civil Code Section 1542 (if you are a California resident), and any similar provision in any other jurisdiction (if you are a resident of such jurisdiction), which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Site and Services, including applicable copyrights, trademarks and other proprietary rights. We are not granting any license to you under any of those intellectual property rights by virtue of this Agreement, except for the limited right to use the Site and Services in accordance with this Agreement. “ModernGiver.com” is our trademark. Other product and company names that are mentioned on the Site or provided as part of the Services may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you in this Agreement.
The Content on ModernGiver.com, excluding all intellectual property of other sites obtained by way of API and linking and Content posted by our customers, is owned by ModernGiver.com. This includes, without limitation, the text, software, scripts, graphics, photos, sounds, interactive features and the trademarks, service marks and logos contained therein ("Marks"). The Marks are owned or licensed to ModernGiver.com, subject to copyright and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and and international conventions. Content provided by ModernGiver.com is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. We reserve all rights not expressly granted in and to the Site and Services.
As between you and us, you retain any intellectual property rights in any copyrighted materials and trademarks that are contained in Content that you post to the Site. You grant us an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, translate, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale, otherwise commercially exploit and exercise any and all such rights, under any and all of your intellectual property rights related to the Content in any manner we choose. If you have any rights to the Content that cannot be licensed to us (such as moral rights in some countries), you unconditionally and irrevocably waive the enforcement of such rights, and all claims and causes of action of any kind against us or related to our customers and partners anywhere in the world, with respect to such rights.
We respect the intellectual property of others, and we ask you to do the same. If you are a copyright owner or an owner's agent and find Content that infringes upon your copyrights, you may submit a notification according to the Digital Millennium Copyright Act. To do so, please provide our Copyright Agent with the following information (see 17 U.S.C 512(c)(3) for further detail) in writing: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (4) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ModernGiver.com's designated Copyright Agent to receive notifications of claimed infringement can be reached at [email protected] You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
The communications between you and ModernGiver.com use electronic means, whether you visit the Site or send us emails, or whether ModernGiver.com posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ModernGiver.com in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ModernGiver.com provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
Entire Agreement, Changes to this Agreement and Waivers
You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid. Should any part of this Agreement be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of this Agreement will not be considered a waiver of the right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
YOU AND ModernGiver.com AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ModernGiver.com MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You represent that you are legally able to accept these Terms of Service. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. And as stated in the Conditional Use of Our Site and Service, above, you affirm that you are, in any case, 13 years of age or older. If you aren't, you must please cease use of ModernGiver.com.
Last updated: January 23, 2013