Terms and Conditions
User Term and Conditions
By joining the Planet Fundraiser app, you consent to receive mms and SMS text communications from us, which may include offers from us and third parties affiliated with our Services. Standard text message fees may apply and be the responsibility of you. Data obtained from you in connection with this may include your mobile phone number, your carrier’s name, the date, time and content of your messages and other information that you may provide. We may use this information to contact you and to provide the Services you request from us, and to otherwise operate, develop, and improve the Service. Your wireless carrier and other service providers may also collect data from your text message usage, and their practices are governed by their own policies. When you complete forms online or otherwise provide us information in connection with our Services, you agree to provide accurate, complete, and true information. We reserve the right to limit the number of text and/or HTML messages you transmit to us on a daily basis and may suspend your account with us if we determine, in our sole discretion, that an excessive number of messages are being transmitted by you.
Planet Fundraiser requires that users only submit personal receipts and not collect receipts from fellow supporters, friends, other customers whom they do not know, and most importantly employees of the business. If multiple receipts are submitted for the same date, and have not been pre-approved by the merchant for a special event, Planet Fundraiser reserves the right to not approve the receipt.
Modifications may include, but are not limited to, changes to the license, pricing, payment procedures, and other requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE USE OF THE SERVICES OR SOFTWARE. YOUR CONTINUED USE OF THE SERVICES OR SOFTWARE FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH MODIFICATION.
Acceptance of Terms
You may not use the Services or Software if you do not agree to the Terms. You may accept the Terms by using the Services or Software in any way, or by merely browsing the Services. You may not use the Services if (a) you are prohibited by Law from receiving or using the Services, (b) you are not fully able and competent to enter into a binding contract with PF, such as if you are not of legal age or have not obtained parental consent. In particular, unless expressly stated otherwise in the Additional Terms for any given Service or Software, you affirm that you are 18 years of age or older. PF may require you to provide consent to the updated Terms before further use of the Services or Software is permitted. Otherwise, your continued use of any Service or Software constitutes your acceptance of the changes.
We reserve all rights, title and interest (including all intellectual property and proprietary rights), in all languages, formats, and media throughout the world, in and to: (i) the Services, (ii) information, data, documents, images, photographs, graphics, audio, videos, or webcasts, products, Software (collectively, “Materials”), (iii) any affiliate links, link formats, any domain names owned or operated by us or our affiliate, and (iv) any other intellectual property and technology that we provide or use in connection with our products or the Services (including any application program interfaces, libraries, sample code, and related materials), which will all continue to be the exclusive property of PF and/or its licensors and nothing in the Terms shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to you or any third party. All trademarks, logos and services marks displayed on the Services and Software (collectively, “Marks”) are the property of PF or other rights holders. You are not permitted to use the Marks without the prior consent of PF or the rights holder.
Content Posted by You
You are solely responsible for the Content that you publish or display (hereinafter, “post”) on the Service, or transmit to other Members. You will not post on the Service, or transmit to other Members, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to PF or to any other Member. If information provided to PF, or another Member, subsequently becomes inaccurate, misleading or false, you will promptly notify PF of such change.
You understand and agree that PF may review and delete any content, messages, photos or profiles (collectively, “Content”), in whole or in part, that in the sole judgment of PF violates these Terms or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Members.
By posting Content to any area of PF Services, you automatically grant, and you represent and warrant that you have the right to grant, to PF, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by PF will not infringe on or violate the rights of any third party.
The following is a partial list of the kind of Content that is illegal or prohibited on PF Services. PF reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Service and terminating the membership of such violators. It includes, but is not limited to, Content that:
· is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
· harasses or advocates harassment of another person;
· involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
· promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
· promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
· contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
· provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
· provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
· solicits passwords or personal identifying information for commercial or unlawful purposes from other users; and
· engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
Your use of the PF Services, including but not limited to the Content you post on PF Services, must be in accordance with any and all applicable laws and regulations.
All information you include in your Member profile must be accurate, current and complete.
Use of Services and Software
If you comply with the terms and conditions of the Terms, PF grants to you a non-exclusive, non-transferable, revocable right to access and use the Services and to use the PF Software in connection with the Services, subject to the restrictions stated in this section or otherwise set out in these Terms. You agree: (i) not to alter, copy, modify, or re-transmit the Software; (ii) not to lease, license, rent, or sell the Software or the right to use and access the Services; (iii) not to remove, obscure, or alter any text or proprietary notices contained in the Software; (iv) not to copy or imitate part or all of the design, layout, or look-and-feel of the Service, which are protected by Intellectual Property Rights; (v) to use the Services and the Software only as permitted by these Terms, any applicable Additional Terms and any Law; and (vi) that certain Services and Software may be available only if you have paid a fee or purchased a product. You acknowledge that PF may modify or discontinue, temporarily or permanently, the Services or Software, or any portion thereof, with or without notice. You agree that PF shall not be liable to you or anyone else if we elect do so.
Your Interactions with Other Members.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT PF DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS. PF ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS MEMBERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS. PF MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS. PF RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
IN NO EVENT SHALL PF BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF THIS SERVICE OR PERSONS YOU MEET THROUGH THESE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER MEMBERS OF THE SERVICES.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
THE SITE, SERVICES, SOFTWARE, PRODUCTS AND MATERIALS ARE PROVIDED BY PF “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PF AND ITS LICENSORS MAKE NO WARRANTY THAT (i) THE SITE, SERVICES, SOFTWARE, PRODUCTS AND MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAMCCBLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, SOFTWARE, PRODUCTS AND MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iii) THE QUALITY OF THE SITE, SERVICES, SOFTWARE, PRODUCTS AND MATERIALS WILL MEET YOUR EXPECTATIONS; OR THAT (d) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, SOFTWARE, PRODUCTS AND MATERIALS WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PF OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
PF SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SERVICES AND YOUR USE OF MATERIALS. ANY MATERIAL DOWNLOADED, MADE AVAMCCBLE, OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. PF ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE SERVICES.
PF DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. PF MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
NO GUARANTEE IS MADE REGARDING ADDITIONAL FUNCTIONALITY WITH THIRD PARTY PLUGINS, THEMES, OR BROWSERS.
AFFILIATES AND OTHER THIRD PARTIES ARE NOT AUTHORIZED PF SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF PF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PF WILL HAVE NO LIABILITY RELATED TO MATERIAL ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY, OR OTHER LAWS.
Limitation of Liability
IN NO EVENT SHALL PF, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF PF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SITE, SERVICES, SOFTWARE, PRODUCTS OR MATERIALS. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDE PF’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF PF OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY.
PF’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICES DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT OR THE PURCHASE PRICE PAID TO PF FOR ANY SOFTWARE OR PRODUCT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF PF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Links to Other Sites
The Services and Materials may include links that will take you websites or services not operated by PF. Any links provided by PF are as a courtesy, and PF has no control over non-PF websites or services. You agree that we are not responsible for the availability or contents of any website or service we do not operate.
You acknowledge that the Services, Software, and Materials are subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that you will comply with the Export Laws. You will not ship, transfer, export, or re-export the Software or Materials, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export, or use the Services, Software, or Materials. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) you will not use the Services, Software, or Materials for a Prohibited Use, and (iii) you are not a Sanctioned Party. All rights to use the Services, Software, and Materials are granted on condition that such rights are forfeited if Customer fails to comply with the terms of this agreement. If PF has knowledge that a violation has occurred, PF may be prohibited from providing maintenance and support for the Services, Software, or Materials.
Governing Law and Venue
This Agreement, shall be construed in accordance with, and governed by, the laws of the State of Alabama without regards to Conflict of Law principles. In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Agreement or in the event of a claimed breach of this Agreement, the parties hereto agree that such dispute shall be adjudicated only by a court of competent jurisdiction located within Shelby County, Alabama. Said Court shall retain exclusive jurisdiction for all purposes, among other things, administering the Agreement, enforcing and effectuating the Agreement, and resolving any disputes hereunder.
Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms or any applicable Additional Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of the Terms shall continue in full force and effect.
Waiver. Any failure by PF to enforce or exercise any provision of the Terms, or any related right, shall not constitute a waiver of that provision or right.
Reporting Claims of Infringement and Copyright Dispute Resolution
PF has adopted the following procedures and policies to handle copyright infringement notifications in accordance with the Digital Millennium Copyright Act (“DMCA”). Upon receiving notice of a potential copyright infringement claim, PF will remove or disable access from the Site the alleged infringing Content if such notice complies with the requisite elements under the DMCA. Further, if a user is found to be a repeat offender, PF may terminate the user account.
· Procedure to Report an Infringement Notification
If you believe that your copyright has been or is being infringed upon by material found on the Site, you are required to follow the below procedure to file a notification:
1. Identify in writing the copyrighted material that you claim has been infringed upon;
2. Identify in writing the material on the Site that you allege is infringing upon the copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (e.g., the user name of the alleged infringer and the business listing it is posted under);
3. Include the following statement:
“I have a good faith belief that the use of the content on the Site as described above is not authorized by the copyright owner, its agent, or law.”;
4. Include the following statement:
“I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner’s behalf.”;
5. Provide your address, telephone number, and e-mail address (if available);
6. Provide your physical or electronic signature;
Please note that you may be subject to liability under Section 512(f) of the DMCA if you knowingly materially misrepresent that material on the Site infringes upon your copyright.
Additionally, PF has adopted the policy of submitting any or all of the notices it receives to the Chilling Effects Clearinghouse (http://www.chillingeffects.org) or other related third-party for publication.
· Procedure to Report a Counter-Notification
If you believe that Content has been mistakenly removed pursuant to a claim filed under the DMCA, you are required to follow the below procedure to file a counter-notification:
1. Identify in writing the material that was removed or disabled from access, and provide a description that reasonably identifies the location of the material prior to its removal;
2. Include the following statement:
“I swear under penalty of perjury that the material that was removed or disabled from access was due to a result of mistake or misidentification of the material to be removed or disabled.”;
3. Provide your name, address, telephone number, email address (if available), and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, and that you will accept service of process from the person who provided notification under 512(c)(1)(C) or an agent of such person; Provide your physical or electronic signature; and Send the written communication to: Planet Fundraiser, 1500 First Avenue North, Unit 11, Birmingham, AL 35203. For additional questions regarding PF’s procedure in handling copyright infringement notifications, please send an email to email@example.com
Cause Terms and Conditions
Planet Fundraiser, LLC (referred to throughout as “us,” “we,” “our,” etc.) is the owner and operator of the Planet Fundraiser mobile application, an application for schools & nonprofit organizations. These Terms of Service apply t o the Planet Fundraiser mobile application, any sub domains thereof, any API integrations or widgets we offer, and any other application or webpages we own or operate that include a link to this state
ment (together collectively referred to as the “App”).
Any party that accesses, uses, or registers with the App (such party referred to throughout in the second person ” you,” “your,” etc.) agrees to be contractually bound by these Terms of Service (the “Terms”). After applying and acceptance on Planet Fundraiser, your use of the App, or any of the services or features accessible therein, constitutes your acceptance of the Terms. If you do not wish to use the App in accordance with the Terms, then you should immediately discontinue using the App.
UPDATES TO THE TERMS
1.0 Updates. We may update or change the Terms from time to time. Amendments will only apply prospectively. A given amendment will not apply t o claims arising before, or arising from facts occurring before, the point in time when that amendment was published to the App. We will let you know that the Terms have been updated or changed by publishing the date of the last amendment at the top of this page. You agree that this method of notice is sufficient and that you will regularly check these Terms for updates or changes.
2.0 IP Protection. The App, its forward facing components (images, designs, text, arrangements of the foregoing, etc.), its various features and services, and all underlying software and code belong exclusively t o us. You understand and agree that your use of the App in no way gives you a right, title, or interest in the App or our intellectual property. The App and its various component parts are protected by copyright law, trademark law, trade secret law, and other laws germane to the protection of intellectual property rights.
2.1Prohibited Activities. You agree to use the App and the features and services provided through the App only as they are obviously intended to be used. All other uses are strictly prohibited. You agree not to (and not to
encourage a third party to) disassemble, reverse engineer, or otherwise attempt to discover, copy, or transmit, any source code underlying the App or the software, features, or services provided therein.
2.2 Your Content. By posting, uploading, or transmitting content or information to, or through, the App you grant us a nonexclusive, irrevocable, worldwide, sub-licensable (through multiple-tiers), royalty-free license to copy, store, transmit, publish, publicly display, publicly perform, and otherwise use this content or information to operate the App as we reasonably see fit. You warrant that you have the authority to grant such license.
GENERAL USER WARRANTIES
3.0 User Warranties. By accessing, using, or registering with the App you represent, warrant, and irrevocably covenant that:
• You have the authority to enter into this agreement.
• Your decision to enter into this agreement and your use of the Appwill not violate any applicable law, regulation, or ordinance.
• Your decision to enter into this agreement and your use of the Appwill not infringe the rights of any third parties.
• You will at all times supply truthful and accurate information to usand you will not misrepresent yourself to the public through your use of the App.
• You will never use the App, or any services we provide to you, in a manner that violates the law or the legal rights of a third party.
• You are at least 13 years of age if you are using the App and have the consent of a parent or legal guardian if you are under 18 years of age.
4.0 International Use. This App is not intended for use by nonprofit organizations organized under the laws of countries other than those of the United States of America. You represent, warrant, and irrevocably covenant that you will refrain from making financial transactions through the App if you (i) are located in a country embargoed by the United States or (ii) are on the U.S. Treasury Department’s list of Specially Designated Nationals. If you choose to use this App, you are solely responsible for compliance with all applicable local laws and you consent to having your data transferred, processed, and stored in the United States.
7.0 Availability of Service. As the provider of the App, we reserve the right to discontinue (i) the App, in whole or in part, (ii) any features or services provided by or through the App, or (iii) your account with the App, for any or no reason, without notice to you.
8.0Waiver of Warranties. We disclaim all warranties, express, implied, statutory, or otherwise, concerning the App to the fullest extent allowed by applicable law. This waiver includes, but is not limited to, all warranties of merchantability, fitness for a particular purpose, non-infringement, and accuracy of information. We make no warranties concerning continuity of service, the security of the App, or that the App will be error free. We offer the App and the features and services contained therein “AS IS” and “WITH ALL FAULTS.”
8.1 Taxes. You understand that the party you transact with through the App is the one that sets the tax language in any receipt you receive. We make no representations about the nature of any transaction you make through the App. Always consult the organization you are transacting with and a qualified financial advisor prior to claiming a deduction on your taxes.
8.2 Release. You hereby release us, our successors and assigns, our affiliates, merchant partners and each of the foregoing’s respective directors, officers, employees, and agents (collectively, the “Releasees”) from any and all liability, costs, expenses, losses, damages (including damage to property or personal injury or death), and claims, whether known or unknown, which may arise from (i) you hosting, participating in, attending, or authorizing an event posted on the App (including events you authorize your supporters to advertise on the App) or (ii) from the acts or omissions of third parties you interact with through the App (collectively the “Released Claims”).
8.3 Limitation of Liability. Neither we nor our officers, directors, employees and agents, will be liable to you for special, consequential, indirect, punitive, exemplary or incidental damages (including lost revenues or profits, or loss of goodwill), regardless of the cause, legal theory, or cause of action, even if we have been advised of the likelihood thereof. Our aggregate liability, together with the liability of our officers, directors, employees and agents, arising out of this Agreement and your use of the App (when aggregated with all other claims against us arising out of this Agreement and your use of the App), regardless of the type of claim(s) or the nature of the cause(s) of action, will not exceed the greater of (i) one hundred U.S. Dollars ($100) or (ii) the net amount we have been paid from transaction fees arising from transactions you have made through the App in the twelve (12) months immediately preceding the event giving rise to your claim(s). You acknowledge that the foregoing limitations are an essential basis of the bargain we have reached and that they will apply notwithstanding any failure of essential purpose of any limited remedy.
8.4 Indemnification. You agree to hold the Releases harmless and to defend and indemnify each of them for all costs, expenses (including reasonable attorney’s fees), damages, and liability from third party claims, which arise from, or relate to, your use of the App or your breach of these Terms.
9.0 Governing Law. These Terms will be governed by and construed in accordance with the laws of the state of Alabama, as such laws are applied to agreements made between Alabama residents and performed entirely within the state of Alabama, and without regard to conflicts of
9.1Forum. The exclusive jurisdiction and venue for any disputes which may arise out of, or relate to, these Terms or your use of the App will be the state and federal courts located in Jefferson County, Alabama. You hereby expressly and irrevocably consent to the personal jurisdiction and venue of such courts.
9.2No Joint Venture. These Terms do not create, and shall not be construed to create, a joint venture, partnership, or other formal business relationship between you and us. At all times we shall remain independent contractors with respect to one another.
9.3 No Assignment. You have neither the right nor the power to assign your rights under these Terms. Any purported assignment of your rights under these Terms will be NULL AND VOID.
9.4 Entire Agreement. These Terms contain the entire agreement between you and us, they are a complete integration of our agreement and supersede and displace any earlier or contemporaneous written or oral negotiations, statements, or agreements purporting to deal with the subject matter hereof.
9.5 Severability. If any provision of the Terms is found to be unenforceable, invalid, or illegal by a court of competent jurisdiction, this finding shall not render any other provision of the Terms unenforceable, invalid, or illegal. We both agree that the court will have the authority to modify or replace the unenforceable, invalid, or illegal provision with a valid and enforceable provision that most closely represents our intentions with respect to the invalid, illegal, or unenforceable provision.
9.6 No Waiver. Any delay on your part, or on our part, to exercise a right or power granted under these Terms will not be construed as a waiver of such right or power. All waivers must be in writing and a waiver of any particular breach will not be construed as a waver of any other breach, or any succeeding breach.
9.7 Survival. The provisions of the sections of these Terms titled “Intellectual Property,” “Liability,” and “General” will survive termination.
9.8 Attorney’s Fees. If a dispute arises out of these Terms or your use of the App then the prevailing party in any litigation will be entitled to recover all costs and expenses (including reasonable attorney’s fees) incurred as a result of that litigation.
Business Term and Conditions
Merchant Agreement is made and entered into as of the date set forth on the front hereof,by and between Planet Fundraiser,LLC(“PF”), an Alabama limited liability company, and the merchant. The parties to this Agreement may be referred to herein individually as a “Party”, or collectively as the “parties”.WHEREAS, PF operates a network (the “PF Network”)of Planet Fundraiser Fundraising Organizations(“PFOs”) and Planet Fundraiser Merchants (“PF Merchants”), and promotes PF Merchant businesses to pot
ential customers by marketing and advertising offers and/or incentives to PFO members.
PF utilizes its proprietary technology and platform to track and report PFO connected purchases by customers (“PFO Transactions”)from merchant businesses; WHEREAS, Merchant desires for PF to promote its business by marketing and advertising to one or more PFOs in an effort to increase business by generating PFO Transactions, on the terms and conditions as set forth in this Agreement, in the Merchant Details attached herewith,or in the Merchant Details detailing the terms of future PFO Transactions between Merchant and PF. NOW THEREFORE, in consideration the premises herein contained, and for other valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree, each intending to be legally bound, as follows:1.Merchant Registration.Merchant agrees to provide PF with all of the information necessary for PFto coordinate, promote, market, administer, track and report PFO Transactions as requested herein, in the Merchant Details,and as may otherwise be requested by PF.2.Marketing and Promotion of Merchant Incentives.PF will promote, advertise and market Merchant incentives or offers to potential PFO customers in such manner as PF may determine, in its sole and absolute discretion, is necessary or desirable for the promotion of PFO Transactions,which may include the creation and provision of printed marketing material, point of sale display material, internet and/or social-media based marketing, or such other marketing and/or advertising.Merchant agrees to make reasonable efforts to assist PFin its promotion and marketing efforts of Merchant incentives and, or, offers.3.Tracking and Reporting.PF will track all PFO Transactions, and will provide Merchant with a periodic report, monthly or as otherwise specified herein,or in the Merchant Details,showing the aggregate number of PFO Transactions, the aggregate dollar amount of the PFO Transactions,and the amount due from Merchant for fees associated with the PFO Transactions(“PFO Transaction Fees”), either through a password protected area of PF’s website, invoice,or email, as may be determined by PFin its sole discretion.4.Payment Obligations of Merchant.In connection with each PFO, Merchant agrees to pay any applicable Monthly Service Fees per location and PFO Transaction Fees,as set forth herein, or in applicable Merchant Details (collectively “Payment Obligations”).All payments made pursuant to this Agreement will be denominated in U.S. Dollars and will be paid by Merchant by ACH transfer, bank wire, or other means as expressly agreed to in writing by PF.Merchant will pay PF for all Payment Obligations arising under this Agreement, within the time period set forth in the applicable Merchant Details or, if not specified therein, within ten (10) days after Merchant’s receipt of the applicable invoice (the “Due Date”). If Merchant fails to make payment by the Due Date, Merchant’s account will become past due, and PF will assess a monthly finance charge of 1.5% on all past due balances for the first ninety (90) days of delinquency.After ninety (90) days, PF will charge 6% interest on all outstanding Payment Obligations.Merchant agrees to be liable to PF for any and all costs and expenses incurred by PFfor collecting any amounts due under this Agreement, including, without limitation, reasonable attorneys’ fees,cost and expenses.Monthly Service Fees will be billed monthly, in advance for the month. The first whole or prorated monthly service fee will be billed at the start of the agreement, the effective date.5.Trademark and Creative License.Merchant or its third party licensors hereby grants to PFand its third party service providers, including but not limited to its advertisers, contractors, agents or entities involved in the provision of services hereunder (collectively “Third Party Providers”), during the term of this Agreement or any Merchant Details agreed to hereunder, a non-exclusive, non-transferable, revocable, royalty-free, right and license to use, copy, display, distribute and perform:any content, creative works, advertisements or marketing materials made available to PFand its
Third Party Providers for use in connection with this Agreement (the “Creative”); Merchant’s (or its third party licensors) trademarks, service marks, trade names, logos, iconography and/or product names (in both text and stylized forms) for use in connection with this Agreement or any Merchant Details here under(“Licensed Marks”) and Merchant’s (or its third party licensors) copyrights for use in connection with this Agreement or any Merchant Details hereunder (“Copyrights”) in the territory of the United States. The foregoing rights may be sublicensed by PFto its Third Party Providers to the extent necessary for the performance of its obligations hereunder. 6.Term and Termination.This Agreement will become effective upon execution by both parties (the “Effective Date”), and will remain in effect for one (1) year following the Effective Date(the “Initial Term”), unless earlier terminated pursuant hereto. This Agreement shall without the requirement of notice, be automatically renewed on the same terms and conditions, for successive periods of one (1) year each (each, an “Additional Term”) commencing on and running, in the case of the first automatic renewal, from the expiration of the Initial Term and, in the case of each subsequent automatic renewal, from the expiration of the current Additional Term. Either party may terminate this Agreement as of the end of the Initial Term or the current Additional Term, by giving at least thirty(30) days written notice to the other party before the end of such term.In the event of a default by a party of any material term or obligation under this Agreement, the non-defaulting party may terminate this Agreement if such default is not cured upon thirty (30) days written notice of default from the non-defaulting party. Any rights or remedies of either party arising out of a default or breach of any terms or obligations under this Agreement by the other party will survive expiration or termination of this Agreement. PF reserves the right to inform the PF network that a merchant has ceased participation or is not active in the PF Network.7.Limitation of Liability.EXCEPT AS PROVIDED BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHICH MAY INCLUDE LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, OR USE, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL PF’S AGGREGATE OR CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNT OF FEES PAID BY MERCHANT TO PF UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. This Section 7 will survive any expiration or termination of this Agreement.8.Disclaimer of Warranties.MERCHANT ACKNOWLEDGES THAT PFAND ITS THIRD PARTY PROVIDERS PROVIDE THEIR RESPECTIVE SERVICES “AS IS.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, PFAND ITS THIRD PARTY PROVIDERS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER PFNOR ANY OF ITS THIRD PARTY PROVIDERS WARRANT THAT ITSPLATFORM OR SITE, ANY INTERNET CONNECTIONS, OR THIRD PARTY CONNECTIVITY, WILL OPERATE UNINTERRUPTEDOR ERROR-FREE. PFAND ITS THIRD PARTY PROVIDERS DISCLAIM ANY AND ALL LIABILITY ARISING FROM THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR ANY IMPAIRMENT OR DISRUPTION OF THE INTERNET. IF AND TO THE EXTENT THAT THE SERVICES PROVIDED HEREUNDER ARE DELAYED, SUSPENDED OR TERMINATED FOR REASONS BEYOND PF’S OR ITS THIRD PARTY PROVIDER’S REASONABLE CONTROL, INCLUDING THE INABILITY OR UNWILLINGNESS OF THIRD PARTIES TO PROVIDE SUPPORTIVE SERVICES, PFAND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ANY AND ALL LIABILITIES ASSOCIATED THEREWITH. MERCHANT HEREBY ACKNOWLEDGES THAT THE TRANSACTION DATA SUPPLIED BY PFAND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.This Section 8 will survive any expiration or termination of this Agreement.9.Indemnification.Merchant will defend, indemnify and hold harmless PFand its Third Party Providers, and their respective affiliates, directors, officers, employees, agents, successors, heirs and assigns, from and against any and all allegations, claims, actions, causes of action and lawsuits by Merchant or any third party and all resulting losses, costs, liabilities, damages, fines, injuries, interest or expenses (including reasonable attorneys’ fees and costs of investigation and defense) suffered or incurred by any indemnitee hereunder, arising from, attributable to, based upon or related to: (a) a claim
that the Creative, Licensed Marks or Copyrights infringes or otherwise violates any third party intellectual property or other proprietary rights or privacy rights or otherwise violates law; (b) any violation of law by Merchant; or (c) any allegations or failure to perform or breach of this Agreement, any covenant, representation or warranty hereunder by Merchant. 10.Confidential Information/Trade Secrets.During the course of the performance of the Services, each party will have access to, have disclosed to it, or otherwise obtain information which such party knows or reasonably should know is of a confidential and/or proprietary nature to the other party including, but not limited to, this agreement, information concerning the other party’s trade secrets, customer relationships, activities, plans, finances, operations, methods and/or other information relating to the past, present or future business activities of the other party, its parent company, its subsidiaries and affiliated companies and the customers, clients and suppliers of said entities (collectively the “Confidential Information”).Each party shall use such Confidential Information solely in performance of its obligations under this agreement.Each party shall regard and preserve all such Confidential Information in trust and confidence for the other party and agrees not to disclose such Confidential Information in any manner to any person, firm or enterprise, or use such Confidential Information for its own benefit or the benefit of any other party without obtaining the other party’s prior written consent.Information shall not be deemed confidential to the extent, but only to the extent, that such information is: (i) already known by the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned by the receiving party from an independent third party free of any restriction; or (iii) available publicly. Save to the extent that it is allowed by mandatory statutory law, the “merchant” may not reproduce or decompile the Planet Fundraiser Platform, App, and/or any PF technology or apply reverse engineering to it. Furthermore, removal and/or circumvention of security measures or technical limitations (to use) of the Service and/or the Planet Fundraiser Platform, App, and/or any PF technology is not allowed. The merchant shall not hire, participate and/or engage in any program similar to Planet Fundraiser where purchase transactions are used to validate and issue a reward and/or an incentive of any type.11.IP Protection.(a) The Merchant and its affiliate franchisees, collectively the “merchants”and Planet Fundraiser (“PF”) acknowledges that as between Planet Fundraiser and Merchant and its affiliate franchisees, PF shall have exclusive and unlimited ownership of the Software and any technology, products or services that Planet Fundraiser owned before this agreement or that is developed independently by Planet Fundraiser during the term of this agreement. Each party hereby acknowledges and agrees that any improvement, enhancement, extension or derivative of PF’s preexisting proprietary rights shall belong exclusively to PF, with such PF having the sole right to obtain, hold and renew, in PF’s name and/or for PF’s own benefit, patents, copyrights, registrations and/or appropriate protection. (b) Nothing herein shall be construed to restrict, impair or deprive Planet Fundraiser of any of its rights or proprietary interest in technology, products, materials or documents that existed prior to or were developed by Planet Fundraiser during or after this agreement. (c) The names, logos, symbols, trademarks, trade names and service marks of Planet Fundraiser, whether presently existing or hereafter established (“PF Trademarks”), are the sole property of Planet Fundraiser and Planet Fundraiser retains the right to the use and control thereof. During the terms of this agreement, Planet Fundraiser hereby grants to TheMerchantand its affiliate franchisees a nonexclusive, nontransferable, royalty-free license to use PF Trademarks in accordance with any and all instructions and procedures provided by Planet Fundraiser.12.Authority to Bind Parties and Binding Effect.Each person signing this Agreement on behalf of a Party and/or Parties represents and warrants that such person has the full right and authority to enter into this Agreement (and any other agreement contemplated hereunder) on behalf of such Party, and the full right and authority to execute all instruments provided for in this Agreement and to fully bind such Party to the terms and obligations of this Agreement.This Agreement shall be binding upon each of the parties hereto, and upon their respective heirs, successors and assigns, and shall inure to the benefit of each of the parties hereto, and their respective heirs, successors and assigns.13.Assignment/Sale of Business.This Agreement may be assigned by PF upon thirty (30) days written notice to Merchant. If during the Term of this Agreement or any extension thereof, Merchant shall sell its business, or substantially all of the assets or shares of stock of its business, Merchant shall, as a condition of such sale, notify the purchaser of the contents of this Agreement and require the purchaser to assume the obligations under and pursuant to this Agreement. 14.Governing Law and Venue.The interpretation, construction and enforcement of the terms of this Agreement shall be governed by and construed in accordance with the laws of the State of Alabama. The parties acknowledge and agree that any judicial action or proceeding to enforce the terms of this Agreement shall be brought in a court of competent jurisdiction located in Jefferson County, Alabama.
15.Counterparts/Electronic Signature.This Agreement may be executed in multiple counterparts by the parties, each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument. All signatures need not appear on the same counterpart, and an electronic signature of any party hereto shall be deemed to be the original for the purposes of execution and enforcement of this Agreement.16.Survival, Entire Agreement, Amendment, Severability, and Headings.The provisions hereof which are to be performed after the date hereof and the several covenants and agreements of the parties contained herein shall survive the execution of this Agreement.This Agreement, including the Merchant Details on the front here of and any Merchant Details agreed to by Merchant and PFto govern future PFO transactions,constitute the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersedes any and all prior agreements and understandings relating to the subject matter hereof. This Agreement may not be waived, extended, amended, supplemented or modified orally, but only by a written instrument signed by the party against whom enforcement of any such waiver, extension, amendment, supplement or modification is sought.If any provision of this Agreement is deemed to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any of the other provisions contained herein.The section and other headings in this Agreement are inserted solely as a matter of convenience and for reference, and are not a part of this Agreement.