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TERMS AND CONDITIONS OF LICENSE AGREEMENT

 

YOU MUST CAREFULLY READ AND ACCEPT THIS LICENSE SERVICES AGREEMENT (THE “AGREEMENT”) BEFORE CHARITY BOOST WILL ACCEPT YOUR REQUEST TO PROVIDELICENSE SERVICES. SHOULD YOU NOT AGREE TO THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT.SHOULD YOU AGREE TO THIS AGREEMENT, CLICK THE “ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, WHICH INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT AND THE TERMS AND CONDITIONS HEREIN.

 

This Agreement is entered into by and between you (the “Client”) and Charity BoostLLC. By accepting this agreement you the Client will be utilizing Charity Boost’s technology in all of its manifestations and industry standard engagement best practices, to solicit donations from the public for the benefit of the 501c3 charity named in the attached exhibit A, (hereinafter “Beneficiary Not for Profit”).

 

Charity Boost owns a Text-to-donate Platform, that shall enable Client to orchestrate a single, or multiple fundraising campaign(s) during the Term, to fund Beneficiary Not for Profit, via direct wireless carrier billing.

The Text-to-donate Platform shall include any Charity Boost applications or third-party applications made available by Charity Boost including but not limited to those enabled on mobile phones and websites, applications containing administration, monitoring, reporting, configuration tools and back-end messaging systems (hereinafter “Licensed Material”), further defined herein.

Certain Third Party Services are necessary in order to facilitate the implementation and commercial use of the Licensed Material on behalf of the ClientandCharity Boost must contract with, and manage the business and compliance relationships with those specific third parties, or other parties to be named during the Term to obtain “The Third Party Services” for the benefit of the Client.

Client wishes to enter into this Agreement for the purpose of obtaining a limited license of the Licensed Material, and The Third Party Services, pursuant to terms further defined herein.

This Agreement consists of:

 

(i) The Terms and Conditions below; and

(ii) Schedule A which by reference is incorporated in this Agreement.

 

TERMS AND CONDITIONS

 

  1. DEFINITIONS
  2. Accepted means the Client’s binding acceptance of this Agreement via Charity Boost’s click-accept web interface application.
  3. License Services means the services set forth within this agreement and its exhibits.
  4. Affiliate with respect to a party, means any entity that directly or indirectly controls, or is controlled by, or is under common control with such party.
  5. Confidential Information means proprietary and confidential information received by Charity Boost or Client in connection with the Agreement and their relationship. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, Client lists, financial information, and sales and marketing plans or information which the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party, as well as, in the case of Charity Boost, any information posted on Charity Boost.com.
  6. Content means all visual, written or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Client’s use of the Services or otherwise provided on a Site.
  7. Data Collection Systemsmeans systems that support Charity Boost’s ability to provide data analysis, and report generation capabilities as part of the License Services.
  8. Documentation means user and technical manuals, training materials, product and services descriptions, license agreements, supporting materials and other information relating to products or services offered by Charity Boost, regardless of format of delivery
  9. Intellectual Property means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
  10. Third Party Services means third party services provided by the following parties: Charity Boost, LLC: Provides the Licensed Material and Campaign Design Structure.Charity Boost, Inc.: A 501c-3 non-profit that procures and maintains the necessary credentials, and or relational entities to qualify the Licensed Material to be utilized by the Client to conduct Text to Donate Campaigns.Law Offices of Laurie Tannous PC: A law firm specializing in non-profit compliance for offering sweepstakes type charitable donation campaigns including sponsoring charitable lotteries.The Carriers:  ATT, Verizon, Sprint, T Mobile, as well as other carriers that have the capacity to facilitate a text to donate service for their subscribers.

 

  1. GRANT OF LICENSE AND PROCUREMENT OF THE THIRD PARTY SERVICES

This Agreement describes the terms and conditions for Client’s purchases of License Services directly from Charity Boost.  Grant of License in License Material and procurement of Third Party Services.

In exchange for the consideration outlined below  “Licensing Fee”, Charity Boost grants to Client, subject to the terms and conditions hereof, the non-exclusive, non-transferable rights to the Licensed Material owned by Charity Boost, as set forth below in the “Term”.In exchange for the consideration outlined further below (the “Licensing Fee”) Charity Boost agrees to procure the third party services as described herein.

  1. LICENSEE ACKNOWLEDGEMENTS
    1. The Text-to-donate Platform shall mean the system and suite of tools and applications for delivering text messages and processing donations from any person who chooses to give money (“Donors”) and any Derivative Works conceived, reduced to practice, or developed during the term of this Agreement by Charity Boost, with or without the assistance of Client, or that have general applicability in the art.
    2. Use of the Licensed Material provided to Client under this limited Agreement is strictly limited to the use, medium, period of time, placement, venue, territory, organization and any other restrictions and/or conditions specified in Schedule A, annexed hereto, which is expressly incorporated herein and constitutes a material part of this Agreement. No other uses shall be allowed without prior, written permission. Additional use of any kind whatsoever, requires an additional licensing fee to be paid in advance of any use.  Client hereby agrees that it shall not use, copy, transfer, exhibit, sell or distribute the Licensed Material or any portion thereof in any other manner or for any other purpose. Additionally: (i) no implied rights are granted by the transmission of an invoice or this Agreement or the Licensed Material; (and (ii) distribution to and/or use by third parties.  Any use of Licensed Material in a manner not expressly authorized by this Agreement or any use in excess of or beyond any term of this Agreement constitutes a violation of this Agreement, including but not limited to, copyright infringement, entitling Charity Boost to exercise all rights and remedies available to it under the law.
    3. Network Access. The Licensed Material operates on a wireless and/or online network. Charity Boost does not provide any wireless services nor guarantee the availability of wireless networks. Client acknowledges that the wireless and online networks may be interrupted by scheduled or unscheduled repairs or causes beyond the reasonable control of Charity Boost or that are not reasonably foreseeable by Charity Boost, including without limitation, the availability of third party websites and technology interruption or failure of telecommunications or digital transmission links and Internet slow-downs or failures. Charity Boost is not liable, in whole or in part, for any interruptions or loss of wireless service.
    4. Charity Boost is not required to provide any on-site services to Client.
    5. Non-profit status. Client has represented to Charity Boost that Client’s named Beneficiary Not for Profit is currently qualified as a 501c3 organization and that the organization is in good standing with IRS and state of origin.
    6. Client obligations for Compliance. Client is responsible for complying with any and all rules and regulations in regards to its organization and internal and external messaging policies. Charity Boost, and third parties delivering the Services are not responsible for initial or ongoing compliance with institutional policies or guidelines.

 

  1. Carrier Approval. Client understands that participation in the Licensed Material is subject to approval by the Carriers. In the event that the Carriers do not approve Client’s participation in the Licensed Material, Client agrees that Charity Boost shall not be responsible or liable for any loss or damage of any sort incurred as the result of Client’s nonparticipation in the Licensed Material.

 

  1. Donor engagement with the Licensed Material. Client understands and acknowledges the following notifications and communications that may be transmitted to Donor or from Donor via text.
  1. Donors can unsubscribe or opt-out from receiving any text messages in the future at any time by sending “STOP” to the relevant short code.
  2. Donors can get help with any campaign at any time by texting “HELP” to the relevant short code.
  3. Donors can get information related to your campaigns by texting “INFO” to the relevant short code.
  4. The text-to-donate platform allows Donors to donate $5.00, $10.00 and $25.00 (on select carriers) one-time donations.
  5. Donors select their intended charity by using a provided key word with their text message, and then confirming their intent.
  6. Donors may be able to send in multiple text message donations for the donation amounts up to a certain amount specified by their wireless operator.
  7. All charges must be authorized by the account holder of the Donor’s wireless device. If the Donor is between the ages of 13 and 18, the Donor may only participate under the supervision of a parent or legal guardian who agrees to be bound by the Terms of Service relating to the Client fundraising campaign.
  8. Donations are tax deductible.
  9. With any donation made through the Text-to-donate Platform, a one-time donation in the amount approved by the Donor will appear on the donor’s wireless bill or be deducted from the Donor’s prepaid balance for each text message donation.Message and Data Rates May Apply.
  10. The donation will appear on the Donor’s wireless bill. Once the Donor pays their wireless bill, the corresponding wireless operator will remit 100% of the donation, net of any applicable carrier charges, through the platform to Charity Boost Inc. (Third Party Services)
  11. CBI will pay all applicable expenses related to providing the “services”, and remit the net balance to Charity Boost as provided herein.
  12. Donations made through the “platform” are immediate, non-cancellable and irrevocable. (Donors should consult their wireless operator to learn more about wireless operator-provided refund policies.)
  13. When making a donation through the Text-to-donate Platform, personal information will be collected. IE. Name, Phone number, Carrier, Donation Amount.
  14. Charity Boost and Client may send additional messages to Donors.
  15. Opting Out: If at any time an individual wishes to discontinue such messages, they may opt-out in accordance with Charity Boost’s Text-to-donate Platform terms.
  16. An individual Donor’s participation in any promotional event is subject to the terms and conditions associated with that event.
  17. Correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between licensee and such third-party.
  18. Client agrees that Charity Boost shall not be responsible or liable for any loss or damage of any sort incurred as the result of Client’s participation in the Licensed Material.
  19. Grant. Client grantsto Charity Boostthe rightto use itsname,image,and likeness,includingbutnotlimited to text,trademarks, copyrights,audio,photographs, video, graphics,and othermaterialcontained inthe images(collectively, “Image”)inconnectionwith the submitted materialsand otherinformationaswell asinconnectionwithall advertising, marketing, award submissions and promotionalmaterialrelated thereto.IfanImage isa registered markorcopyrightmark,Charity Boostshallinclude the appropriate corresponding protectionsymbol(i.e., “R”or“tm”)withitsuse ofsuchimage inany marketing display.

 

  1. PRICING, INVOICING AND PAYMENT see appendix B

 

INVOICE & TERMS OF PAYMENT:                                                                

Consideration: There are multiple types of consideration, paying fees, and or services/ contribution, which are the responsibility of the Client to acquire the rights to the Licensed Material, the Services, and procure compliance with local or state authorities.

 

1. Licensed Material and the Services Fee:

  1. Charity Boost, and the parties retained by Charity Boost to render the Services agree to a fee in the aggregate, equal to a total of thirty percent (30%) of the gross donations that are transacted through the Licensed Material.
  2. CBI will retain an amount equal to 10% of the Gross Donations to pay Carrier/Service Provider fees, CBI post receipt of the adjusted campaign donations for the licensee, will pay over to Charity Boost an amount equal to 20% of the Gross Campaign Donation and forward the net (70% ) of the campaign donations to the licensee.
  3. The Appointed Non-Profit Organization, CBI is responsible for compliance of the campaign, coordinating entities to support the campaign, and creating the post campaign audit report. CBI will have the responsibility to collect all donations from the Carriers, net of the Carrier’s processing fees.
  4. CBI will pay its own operational expenses, and all expenses associated with the Licensed Material operations necessary to support the campaign, The Services, and remit the remainder, which shall not be less than seventy (70) percent of the gross donations collected during the campaign by the Carriers within thirty days of the receipt of the payment for donations from the Carriers. As the Carriers have varying processing and remittance policy and timetables, CBI will pay to the Client the aforementioned allocation of the remittance by the fifteenth of the month following the collection of the remittances.

 

  1. Prizes and Awards:Client is responsible for procuring and providing all prizes in association with the Program in a timely manner to allow campaign pre-launch promotional activities and the collateral content to be featured in the Licensed Material.
  2. Promotion, Marketing, Advertising: Client is responsible for creating marketing collateral, and procuring all event promotional marketing, including but not limited to digital advertising,  all announcements/messaging in-game, marketing of the Program, television, radio, etc.
  3. Sweepstakes Registration: Charity Boost shall determine with the assistance of the designated third parties under “the Services” all necessary filings that must be completed (if any) for each campaign of the Client. Client is retaining Charity Boost or its appointees to make such filings, but the Client is responsible for timely paying all filing fees necessary to register and operate a sweepstakes or a charity lottery, as well as all post filing fees (if any) necessary and required by the regulatory body of the state in which the Sweepstakes are registered and promoted. These fees can vary, depending on the State(s) in which the offers are made, as well as the value of the prizes the Client is offering through their programs.  Once the Client has determined the nature of the offerings, the state(s) residents the offerings will be promoted to, and the cash value of the prizes, Charity Boost will provide the estimated fees(if any) which will be required to be paid.  Notwithstanding any other provision in this agreement Charity Boost shall not be held responsible for losses incurred by Client in the event of Carrier non-approval of the sweepstakes registration or for any other reasons beyond its control.
  4. A monthly report including a CSV file will be supplied to Client with all phone numbers collected along with accounting of all Donations received. The report will be issued by the 20th Day of the month following the reporting period, and sent as an attachment to an email to the contact person designated by the Client.

 

 

  1. WARRANTY AND REPRESENTATION
  2. CHARITY BOOST WARRANTS TO CLIENT THAT ALL LICENSE SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE PERFORMED IN A WORKMANLIKE MANNER AND (WHERE APPLICABLE) WILL MATERIALLY COMPLY WITH THE RELEVANT SERVICE DESCRIPTION.
  3. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE, AT CHARITY BOOST’S OPTION:
  4. RE-PERFORMANCE OF THE LICENSE SERVICES; OR

ii.TERMINATION OF THIS AGREEMENT OR THE APPLICABLE LICENSE SERVICES AND THE REIMBURSEMENT BY Charity Boost TO CLIENT OF THE PORTION OF THE SERVICE FEES PAID TO Charity Boost BY CLIENT FOR SUCH NON-CONFORMING SERVICES.

IN ORDER TO RECEIVE THIS REMEDY CLIENT MUST PROMPTLY NOTIFY Charity Boost OF A BREACH OF THIS WARRANTY.

 

  1. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED BY (I) STATUTE, (II) COMMON LAW OR (III) OTHERWISE, IN RELATION TO THE SERVICES ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE OR INFORMATION OBTAINED BY LICENSEE FROM Charity Boost SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  2. INDEMNIFICATION AND LIMITATION OF LIABILITY

Client hereby agrees to indemnify and hold harmless Charity Boost and its respective officers, directors, agents and employees against any and all actions, claims, costs (including reasonable outside attorneys’ fees), damages, demands and expenses brought against, suffered or incurred by Charity Boost as a result of any breach or non-observance by Client of any of Client’s acceptances, agreements, obligations, representations, undertakings or warranties as set forth in this Agreement; and for any changes, edits or additions to the Licensed Material made by the Client in the exercise of its rights hereunder.

 

Charity Boost’s liability under this Agreement shall in no event exceed the License Fee actually paid hereunder.  In no event shall Charity Boost be liable for any actual or alleged loss of profit or any special, incidental, indirect punitive or consequential damages incurred by Client or any other party.

 

  1. TERM AND TERMINATION

Term:  term of this Agreement shall commence on the Effective Date and shall continue for a period of five years. Such term will be renewed automatically for successive five-year terms unless either party gives written notice to terminate at least 60 days before the end of the then-current term.

Termination:  This Agreement may only be terminated during the Term for a Cause that is not cured within the terms of the Agreement;Termination of Client’s rights to the Licensed Material and or The Services For Cause.  In the event of the termination of this Agreement by Charity Boost with Cause, then notwithstanding any other provision of this Agreement to the contrary, Client shall only be entitled to any payments accrued as of the Termination Date and shall receive no further payments or benefits under this Agreement. For purposes of this Agreement, “Cause” shall mean: (a) Client’s violation or breach of this Agreement or any material inaccuracy of any representation or warranty of Client contained herein, unless, if it is capable of being cured, Client cures such violation, breach, or inaccuracy within fifteen (15) days of Charity Boost providing written notice to Client of such violation, breach or inaccuracy; (b) the appropriation (or attempted appropriation) of a material business opportunity of Charity Boost by Client, which would result in securing a personal profit in connection with any transaction entered into on behalf of Charity Boost; (c) the theft, fraud, or embezzlement by Client of any of the personal property, tangible or intangible, of Charity Boost  or any of its affiliates; (d) Client commission of an act of fraud upon, or bad faith or willful misconduct toward, Charity Boost or any of its Affiliates; (e) conduct constituting gross negligence or recklessness, as determined by Charity Boost in its sole discretion, that is or could have been materially injurious to Charity Boost , a customer of Charity Boost, or any of Charity Boost’s Affiliates; or (j) the conviction of, indictment for, or the entering of a guilty plea or plea of no contest by, Client with respect to a felony involving dishonesty, theft, or fraud.

 

  1. ASSIGNMENT AND SUBCONTRACTING

 

By Client: This Agreement may not be assigned, in whole or in part, without the prior written consent of Charity Boost. By Charity Boost:  This Agreement may be assigned to a successor in interest at the sole and absolute discretion of Charity Boost, such assignment subject to all terms of this agreement being binding on the Successor in Interest.

 

  1. NOTICES
  2. All notices required or permitted under this Agreement shall be in writing. Notices will be deemed to have been given:

 

  1. one day after deposit with a commercial express courier specifying next day delivery; or
  2. two days for international courier packages specifying two-day delivery subject to written verification of receipt.

 

  1. All communications shall be sent to the parties’ respective addresses shown on the first page of this Agreement, or to such other address as may be designated from time to time by a party by giving at least 14 days’ written notice to the other party.
  2. Notwithstanding the above, notices from Charity Boost regarding general changes in pricing, License Services, policies or programs may also be by posting on Charity Boost.com or by e-mail or fax.

 

10 . ALL RIGHTS RESERVED

All rights not specifically granted herein are reserved to Charity Boost without any limitations whatsoever. No ownership or copyright in the Licensed Material shall pass to Client by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Charity Boost grants Client no other right or license, express or implied to the Licensed Material. The failure of either party to require performance of any provision hereof shall not be deemed a waiver of such breach or of any other provision hereof.

  1. TAXES AND FEES

Client shall be responsible for payment of any and all sales taxes, use taxes, value added taxes and duties impose by any jurisdiction as a result of the limited license granted by Charity Boost in favor of Client, or of Client’s use of the Licensed Material under this Agreement. The Parties hereby acknowledge that the foregoing fees and taxes, if applicable, are not included in the Licensing Fee.

  1. RELATIONSHIP OF THE PARTIES

This Agreement is not creating a partnership, joint venture, or employee relationship.  The Parties acknowledge that by entering into this agreement:

  1. Parties agree that in performing the respective duties hereunder, they are each conducting business as an independent entity. No provision of this Agreement is intended, nor will it be construed, to create an employment, partnership, joint venture, agency, or like relationship between the parties except as is specifically defined and required to implement the Licensed Material and the Services Agreement.
  2. Parties expressly agree and acknowledges that neither has, by reason of this Agreement obtained or will obtain during the Term, any express or implied right or authority to create any obligations on behalf of or in the name of the other Party in connection with any contract, agreement, or undertaking with any third party, except as is specifically necessary to fulfill the terms of this Agreement.
  3. Parties expressly agree that neither party will have a claim or any right to participate in the other Party’s employee benefit program.
  4. Each Party is responsible for all federal and state income taxes, including appropriate withholdings or estimated payments, due on payments made to their respective employees.

 

  1. GOVERNING LAW AND ATTORNEYS’ FEES

This Agreement is effective under and shall be governed in all respects by the laws of the State of Florida, U.S.A., without reference to its laws relating to conflicts of law. The Parties hereby agree to the jurisdiction of the State of Florida. Charity Boost shall have the right to commence and prosecute any legal or equitable action or proceeding to obtain injunctive or other relief against Client.  Copyright claims shall be brought in the Federal court having jurisdiction.  If Charity Boost is caused to present claims or suit as a result of any breach of the terms set forth in this Agreement, Client shall be wholly responsible for all costs, expenses, and legal fees incurred by Charity Boost in enforcing any aspect of this Agreement or pursuing any claims under this Agreement or pursuing any claims pertaining to Client’s use of the Licensed Material in a manner not authorized under this Agreement.

 

  1. MISCELLANEOUS
  2. Charity Boost may modify or discontinue Services features to comply with applicable laws and regulations. Charity Boost will comply with all applicable laws in the provision of the Services to Client.
  3. Charity Boost Products, technology and License Services are subject to U.S. and local export control laws and regulations. The parties shall comply with such laws and regulations governing use, export, re-export, and transfer of Products and technology and shall obtain all required U.S. and local authorizations, permits or licenses.
  4. Neither party shall be liable for any delay or failure in non-monetary performance obligations due to a Force Majeure Event. The time for performance of the obligations and rights of the defaulting party shall be extended for a period equal to the duration of the Force Majeure Event.
  5. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor.
  6. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
  7. In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive expiration or termination and shall not be merged into any such judgment.

 

  1. Except where expressly stated otherwise, each party shall bear all costs and expenses incurred by it under or in connection with this Agreement.
  2. The waiver by either party of any right under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
  3. If one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. However, if this paragraph is invoked and as a result the value of this Agreement is materially impaired for either party, then the affected party may terminate this Agreement by written notice with immediate effect.
  4. This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties, except as agreed in writing between the parties. There are no other conditions, understandings, agreements, representations, or warranties expressed or implied. This Agreement may only be modified by a written document executed by both parties.