Terms and Conditions
1. Definitions. "Content" means all text, pictures, sound, graphics, images, photos, video and other data supplied by or through Charity to Zipstripe as such materials may be modified; "Message” means the user interface, functionality and Content made available on mobile devices related to the Charity, directly through Zipstripe and/or indirectly through MGF-C, and which may be in text message, or mobileweb text and/or rich media format, in accordance with mobile handset and carrier limitations and/or requirements; “MGF-C” means Mobile Giving Foundation Canada, a federal Non-Profit corporation registered under Letters Patent dated August 17, 2009; “User Information” means any information submitted, compiled or obtained by or through Zipstripe services requests, usage and/or visitors thereto, including without limitation by or related to commonly referred to terms SMS, MMS, WAP, Bluetooth and browser request; “Zipgive” and “Zipstripe” mean Zipstripe Corp.
2. Development. Zipstripe shall provide development and hosting services for Message(s) for the fees set forth. Message(s) designs and layouts, whether text and/or rich media, shall be in substantial conformity with the demos set forth from time to time on the websites www.zipgive.com / www.zipstripe.com. Zipstripe shall not include, as determined in its sole discretion, any of the following in Message(s): text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics; invisible text, metatags (i.e. text that is present only when a "webcrawler” or other web indexing tool accesses a Message), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
3.Conformity. Charity understands that the technical processing and transmission of the Messages, including Content, may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Zipstripe reserves the right to reasonably limit access to its service, by Charity and/or mobile phone user (“User”), as a means to ensure commercially acceptable relations, such as but not limited to throttling of text communications so to limit claims and concerns of “spamming”. Charity shall provide to Zipstripe not less than three (3) business days prior to intended distribution all Content intended to be sent through Zipstripe’s services and as well all advertising, marketing or promotional materials and/or messages intended to contain a call to action referencing or utilizing Zipstripe’s services, for Zipstripe’s review for conformity with applicable rules, regulations, laws, policies and procedures affecting or governing Zipstripe’s services – no such advertising, marketing or promotional material and messages should be committed to prior to Zipstripe’s review and receipt of Zipstripe’s written confirmation of conformance aforesaid. Charity is encouraged to review all its Content with appropriate legal counsel as Zipstripe will not be responsible for any legal advice.
4. Delivery of Content. Charity shall deliver to Zipstripe all Content that Charity intends for Zipstripe to incorporate into Message(s). The Content shall be in format(s) specified by Zipstripe from time to time. Charity acknowledges that Zipstripe may or may not pre-screen Content, but that Zipstripe and/or MGF-C shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, partially adopt/use or move any Content. Without limiting the foregoing, Zipstripe and its designees shall have the right to remove any Content that violates these terms or is otherwise objectionable. Charity shall not provide or authorize any Content that: (a) infringes on the contractual or intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any applicable laws (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (c) is defamatory, trade libellous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7. Branding. Zipstripe shall be permitted to place in and on Message(s) text or images, the phrase "Powered by Zipstripe” or similar with a link to further information about Zipstripe, and be permitted to advertise Charity's name in Zipstripe materials and website(s) as a customer thereof.
8. Management. Charity shall be required to supervise and manage the Content to be delivered by Zipstripe in accordance with access methods and procedures to be set by Zipstripe from time to time, wherefore Zipstripe shall not be responsible for such supervision or management including but not limited to removal of Content whose availability has expired or become irrelevant, and changes to Content information.
9. Trademarks. Subject to the terms of this Agreement, each party hereby grants to the other party a limited, non-exclusive, royalty-free, license to use in accordance with such party’s limitations thereon their trademarks, services marks, trade names, logos or other commercial or product designations for the purposes of the Campaign, creating content directories or indexes and for marketing and promoting Zipstripe’s services.
10. Payment. All fees are due and payable upon agreement execution or receipt of invoice as Zipstripe shall stipulate, unless based on time which must be received on or before the 1st day of the start of any such period (e.g. monthly), and Zipstripe shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution; excepting per message fees that shall either be taken from funds on hand pursuant to required deposit or credit card, or shall be invoiced, as determined by Zipstripe. Any invoice discrepancies shall be notified to Zipstripe within twenty (20) days of invoice date, provided where a dispute arises Charity agrees to remit the undisputed portion of the invoice to Zipstripe and Zipstripe’s acceptance of such portion shall in no way be construed as admission of the validity of any dispute. Any fees past due shall bear interest at the rate of two percent (2%) per month (24% per annum) on accounts that remain unpaid. No refunds shall be provided for Zipstripe's services hereunder. All fees quoted do not include, applicable sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, which are in addition thereto and may be invoiced separately due upon receipt.
11. Term & Exclusivity. The duration of the Agreement shall be for a period of one year from the acceptance date set forth in the Order Form (the “Term”) and which Term shall be automatically renewable for further periods of one year at the end of a prior Term and which renewed period shall become the Term unless Charity provides notice of intention not to renew no less than sixty (60) days prior to the end of a Term, for which period Charity shall not engage another entity that provides text messaging services competitive to that provided by Zipstripe; provided that should Charity’s application to MGF-C not be accepted in initial original form or with actual or potential amendments acting reasonably, the term herein this Agreement shall be deemed not to have commenced and this Agreement shall no longer be operative, without effect though upon any other Agreements the Charity may have in existence or pending with Zipstripe.
12. Termination. Either party may terminate the Agreement for: (a) breaches or violations of the terms of this Agreement; (b) requests by law enforcement or other government agencies; (c) discontinuance or material modification to Zipstripe’s services (or any part thereof); (d) unexpected technical or security issues or problems; (f) engagement in fraudulent or illegal activities; (g) non-payment of any fees owed; and/or (h) if a party shall file, or have filed against it, any proceeding or filing relating to bankruptcy or insolvency, or with respect to relief under any present or future statutes or law relating to bankruptcy, insolvency, or other relief for debtors, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its assets. Termination of Charity’s account includes: (a) removal of access to all or part of Zipstripe’s services; (b) deletion of Charity’s password and all related information, activity reports and content associated with or inside Charity’s account (or any part thereof); and/or (c) barring further use of Zipstripe’s services. Further, Charity agrees that Zipstripe shall not be liable to Charity or any third-party for any consequential effects of termination of its account or access to Zipstripe’s services. Should Charity terminate the Agreement prior to the end of its term Charity shall remain liable for all Fees to the end of the term as liquidated damages, without prejudice to any other basis of damages recovery.
13. Force Majeure. Either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 15 days following written notice to the breaching party. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party's reasonable control, including but not limited to third party and supplier dependencies and communication network availability of carriers or the internet, and that party is unable to overcome through the exercise of commercially reasonable diligence. If any such force majeure event occurs, the affected party will give written notice to the other party and will use commercially reasonable efforts to minimize the event impact.
14. Charity Covenants. Charity agrees to abide by Zipstripe’s guidelines for use of the mobile channel and other relevant requirements such as the current CWTA Canadian Common Short Code Application Guidelines Consumer Best Practices and Consumer Best Practices guidelines of the Mobile Marketing Association, and as well Charity will not give out its username or password to Zipstripe’s services advertently or inadvertently resulting in malicious activity of any nature. Charity makes the following representations and warranties for the benefit of Zipstripe: 1. Charity represents to Zipstripe and unconditionally guarantees that the Content and any elements of text, pictures, sound, graphics, images, photos, video, designs, trademarks, or other artwork authorized or furnished to Zipstripe for inclusion in the Message(s) are owned by Charity or that Charity has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Zipstripe and its subcontractors from any claim or suit arising from the use of such information and/or elements; and, 2. That any person acting on behalf of Charity from time to time including but not limited to uploading of Content has sufficient and all authority of Charity including, but not limited to, being able to grant the permissions referred to in this Agreement and completion of all contracting information and obligations herein. Charity agrees to indemnify Zipstripe for any and all its actions for which it is the direct or proximate cause that are or may or could be to Zipstripe’s detriment. Further, Charity agrees that it: (i) will comply with all the terms of this Agreement, (ii) has the authority to disclose and provide Content, (iii) will comply with all applicable laws, and, (iv) will not resell or redistribute any services provided by Zipstripe, including but not limited to during the term of the Agreement or at any time thereafter, copy, imitate, disclose, modify, sell, license, redistribute, or use, in any manner whatsoever, any information disclosed or services made available by Zipstripe to Charity, and/or any element of Zipstripe's current or contemplated mobile screen, business models, products or services. Except as otherwise expressly provided herein, Charity confirms that there shall be no third party beneficiaries to this Agreement.
15. Disclaimer of Zipstripe Warranties; LIABILITY LIMITATIONS. Charity understands and agrees that its uses of Zipstripe’s services is at Charity’s sole risk and that such are dependant upon carriers, systems and communication networks outside of Zipstripe’s control. No advice or information, whether oral or written, obtained by Charity from Zipstripe or through or from its services shall create any warranty not expressly stated in this Agreement, including but not limited to that Zipstripe does not make any representations or warranties including that donations, deliverables, messages, materials, content, software, documentation, technology or Service(s) will be delivered immediately or at all, in whole or in part, or relating to the Charity’s products or services. Zipstripe furthermore shall not in any way be held liable for User Information. ZIPSTRIPE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES, WILL BE UNINTERRUPTED OR ERROR-FREE AND PROVIDES ITS SERVICES “AS IS” WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY ZIPSTRIPE, AND (B) ZIPSTRIPE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, AUTHORITY, NON-INFRINGMENT, RELATING TO THIS AGREEMENT, COURSE OF DEALING, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND COMPUTING, MOBILE DEVICE AND DISTRIBUTION SYSTEMS. IN NO EVENT SHALL ZIPSTRIPE BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF ZIPSTRIPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN, PROVIDED IN JURISDICTIONS WHERE SUCH WAIVER IS INEFFECTIVE THE MAXIMUM REMEDY AVAILABLE IS ANY AMOUNT PAID BY CHARITY TO ZIPSTRIPE DURING THE AGREEMENT’S TERM PROPORTIONATE TO THE DEFAULT. ZIPSTRIPE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY 3RD PARTY PRODUCTS, CHARITY OR 3RD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM 3RD PARTIES. The existence of multiple claims or suits under or related to this Agreement will not enlarge or extend the limitation of damages, and the limitations set forth above shall be independent of one another and will survive any failure of essential purpose of any or all parts of the limited remedies set forth. In addition, the Disclaimer of Warranties, Financial Disclaimer, Indemnification and Limitation on Liability provisions in the agreement between the Charity and MGF-C are incorporated herein by reference with Zipstripe the beneficiary thereof.
16. Indemnity. Charity shall defend Zipstripe against any third party claim, action, suit or proceeding alleging any breach of the Agreement's covenants or arising out of any Content Charity authorizes, submits, posts, transmits or makes available through Zipstripe's services, Charity's use of the services, Charity's connection to the services, or Charity's violation of any rights of another, and shall indemnify Zipstripe for all losses, damages, liabilities and all reasonable expenses and costs incurred by Zipstripe as a result of a final judgment entered against Zipstripe in any such claim, action, suit or proceeding.
17. General. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement; provided that Zipstripe may amend this Agreement in its sole discretion upon Zipstripe providing Charity notice of changes in the manner set forth below which changes shall be effective 30 days following deemed delivery of such notice excepting where Charity gives notice of non-acceptance of such changes within 30 days of receipt in which case Zipstripe may either continue the Agreement in its then current state or terminate the Agreement upon notice to Charity. If any provision or part thereof of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions or parts thereof will continue in full force. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. This Agreement will be governed and construed in accordance with the laws of the Province of Ontario without giving effect to principles of conflict of laws. Both parties agree to submit to jurisdiction of the Province of Ontario and further agree that any cause of action arising under this Agreement shall be brought in a court in York Region, Ontario, Canada, and that any claim or cause of action arising out of or related to use of Zipstripe’s services must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any notices required or permitted hereunder shall be given to the appropriate party at the address set forth in the Agreement or at such other address as the party shall specify in writing - such notice shall be deemed given: upon personal delivery; if sent by email or telephone facsimile on the next Business Day (excluding any Saturday, Sunday or statutory holiday in the jurisdiction of receipt) providing confirmation of receipt is coincidentally electronically produced; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing, excepting where there is impending or actual stoppage of mail which notice shall only be effective 5 days from cessation of such actual or impending stoppage. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, administrators, successors and assigns. Charity may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Zipstripe. [version-5d,MGF-C]