Contracts
- Master Terms of Service
- Product Specific Terms
- Payment Terms
- Professional Services Addendum
- Privacy Policy
- California Privacy Notice
- Cookie Notice
- DMCA Notice
- Legacy Terms of Service (prior to January 30, 2023)
- Media Release
- Background Screening Master Terms
- Automatic Check Deposit Solution Pricing Terms
Master Terms of Service
Effective October 9th 2023
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Welcome to Ministry Brands! These Terms of Service (these “Terms”) describe your rights and responsibilities as a customer or user of our products and services, including our hosted services, software and content delivered to you (collectively, our “Services”). These Terms form a legally binding contract between you and Ministry Brands Holdings, LLC (“MBH”) on behalf of itself and its subsidiaries (“Ministry Brands”) so please read them carefully.
- Overview
These Terms apply to your use of the Ministry Brands’ Services for which you have (i) registered online, (ii) registered online for a free trial period, or (iii) entered into an Order Form with Ministry Brands. The Services may include mobile or tablet application versions that are available to be downloaded or accessed by you.
These Terms shall also apply to and govern the use of our Services by your employees or any agents, contractors, affiliated churches and their users, congregants, parishioners, or other persons to whom you provide access to the Services (“Authorized Users”). You shall be liable for any Authorized User’s violation of these Terms.
If you have entered into an Order Form with Ministry Brands for the Services, and there is a conflict between the Order Form and these Terms, the terms of the Order Form shall control. An “Order Form” means an addendum addressing the acquisition of a specific set of services executed by authorized representatives of you and Ministry Brands. References to the Order Form include any attachments to the Order Form.
Additional terms and conditions listed on the Ministry Brands Legal Center page or that are otherwise made available to you may apply to specific Services. If you use those Services, then those additional terms become part of these Terms. If any of the applicable additional terms conflict with these Terms, such additional terms will prevail while you are using the Services to which they apply.
Please carefully review our Privacy Policy before submitting any Personal Data through the Services.
MINISTRY BRANDS MAY UPDATE OR MODIFY THESE TERMS AT ANY TIME BY POSTING THE AMENDED VERSION ON OUR WEBSITE. BY CONTINUING TO USE OUR SERVICES YOU ACCEPT ANY REVISED TERMS. - Your AccountTo use certain Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. Ministry Brands may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from Ministry Brands and its partners at the email address and/or phone number you provide. You agree to provide Ministry Brands with your current, valid contact information and to update your email address and phone number any time this information changes.In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify Ministry Brands if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Ministry Brands will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials.Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Grant of Rights to YouSubject to your compliance with these Terms, Ministry Brands hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Services solely as expressly authorized by Ministry Brands under these Terms and any applicable product specific terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Services and maintain an account may provide access to the Services to Authorized Users.
- Your ResponsibilitiesYou shall obtain all consents, permissions, and authorizations required under applicable law from Authorized Users and other individual end users as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Services, including, without limitation, any personally identifiable information (“Personal Data”). You understand that all online and cloud based services require internet access and you shall be solely responsible for your systems through which the Services are accessed. You agree to notify Ministry Brands in writing immediately if your authorized administrator has been replaced. Such notification shall be in writing on your letterhead and signed by either an authorized officer or your lead pastor or priest, as applicable.
- Service UpdatesFor Services comprised of software or software-as-a-service, which may include our church management and giving solutions, Ministry Brands may from time to time update, upgrade, replace, and/or modify such Services and/or provide a new release(s), or patches or fixes to such Services, as Ministry Brands, in its sole discretion, deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to such Services will be considered part of such Services and subject to these Terms as they may be amended from time to time. Ministry Brands shall have the right to migrate your account to a successor or alternative platform or technology that replaces existing Services from time to time as Ministry Brands evolves its products and technologies and your use of such successor Services shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you).
- Mobile ApplicationsWe may offer mobile application versions of certain Services (each, an “App”) directly or through third-party stores. Subject to your compliance with these Terms, Ministry Brands grants you a limited, non-exclusive, non-transferable, revocable license to download and use the Apps. We may update Apps from time to time to add new features and/or correct bugs. You shall ensure that you are using the most recent version of the App that is compatible with your device. We cannot guarantee that you will be able to use the most recent version of an App on your device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for using the Apps. You agree that you are solely responsible for any applicable charges. Any third-party open source software included in an App is subject to the applicable open source license and may be available directly from the creator under an open source license. These Terms do not apply to your use of software obtained from a third-party source under an open source license.The following additional terms apply to you if you download an App through the Apple Store:
- These Terms are between you and Ministry Brands, but not Apple, Inc. (“Apple”). Ministry Brands, not Apple, offers the App to you, and Apple has no responsibility to you for any use of, or information related to, the App, and these Terms.
- You may only use the App on an Apple device that you own or control and as permitted by the App Store’s terms of service.
- Apple has no obligation to provide maintenance and support services with respect to the App, as used on your iPhone, iPad, or iPod Touch devices. If an App fails to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the App through the Apple Store, if applicable. Apple has no other warranty obligation with respect to the App.
- Should you have any claim, whether you claim directly or whether a third-party claim has been filed against you, relating to your use of the App, Apple shall have no responsibility to you.
- You and Ministry Brands hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce these Terms against you.
The following additional terms apply to you if you download an App through Google Play: - These Terms are applicable between you and Ministry Brands, but not Google, Inc. (“Google”). Ministry Brands, not Google, offers the App to you, and Google has no responsibility to you for any use of, or information related to, the App and these Terms. Google shall not be responsible to you for maintenance of the App.
- Google shall not be responsible to you for any complaints you have regarding the App, as used on your Android device.
- CommunicationsBy enabling push notifications through a Service, you consent and give permission to receive such notifications from Ministry Brands and its partners. You may manage your notification settings by updating your profile on the applicable Service or updating your phone settings. You understand that consent is not a condition of purchase. You understand that Ministry Brands deploys a variety of communication means to notify you of updates, modifications, changes, etc. including without limitation application cues, chat post messaging, and invoice messaging and agree to promptly read such communications.
- Third Party Applications
If Ministry Brands provides any integration or interfaces between a Service and any third party products and/or services with functionality that interoperates with Service or other content or data on the Service (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Ministry Brands to integrate with such Third Party-Applications, and to use and store in the Platform any and all data received from or through such Third Party-Applications. Ministry Brands and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Ministry Brands cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with a Service in a manner acceptable to Ministry Brands. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use a Service. For example, if you turn on our YouTube integration, you are agreeing to the YouTube Terms of Service (www.youtube.com/t/terms). You will indemnify Ministry Brands and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Ministry Brands or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Personal Data). - Third Party MaterialsThe Services may display, include, or make available third-party content or provide links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that Ministry Brands and its affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ministry Brands and its affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience, and you acknowledge and agree that you access and use such Third-Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
- Professional Services
We may provide certain professional services to you as indicated in your Order Form or if you have purchased them online (“Professional Services”). Professional Services are provided on an “as is” basis and are subject to our Professional Services Addendum. - FeesYou must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Our fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. Fees are non-cancellable and non-refundable.Ministry Brands may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription or any variable, transaction or usage fees, or institute new charges or fees. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30 days’ notice. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next monthly term after the 30 days’ notice. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using the applicable Service prior to the commencement of the renewal subscription period for which the price change applies.If you are subscribing to a subscription that automatically renews and you are paying via credit card, or a Service that does not automatically renew but for which you have agreed to keep your credit card on file with us, you authorize Ministry Brands to charge the applicable subscription and other transaction or usage fees at the then applicable rate plus any applicable taxes for the subscription to your credit card on file at the expiration of the term. Your subscription may only be cancelled as set out in Section 20. Ministry Brands may suspend your access to the Services without prior notice if Ministry Brands is unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.If you are not paying via a credit card, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. Invoicing shall occur on a monthly, annual or multi-year basis depending on whether a monthly, annual or multi-year plan is selected when you first contract to receive Services. In addition, without limiting its other rights, if any fees are owed and not paid by you when due, Ministry Brands may suspend your access to the Service(s) without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.
Any payment not received from you by the payment due date will accrue simple interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee. If you cancel your subscription or at the expiration of a free trial period, any text, logos, images, photos, videos and/or other materials that you have entered into or created within the Service or posted or uploaded during your subscription (“Content”) will no longer be available to you. To be very clear, if you cancel any applicable Services, unless required by law, you will not be able to access or retrieve any of the Content and data you added, uploaded, or created during the time you subscribed to those Services.You shall pay or reimburse Ministry Brands for all taxes arising out of these Terms other than Ministry Brands’ income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Ministry Brands by the amount of such taxes so that Ministry Brands receives the full amount of Fees and expenses. If Ministry Brands has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Ministry Brands with a valid tax exemption certificate authorized by the appropriate taxing authority. Ministry Brands’ failure to initially invoice you for any applicable taxes does not relieve you for responsibility for such taxes under these Terms. - Intellectual Property of Ministry BrandsYou recognize that Ministry Brands and its third-party licensors own all rights, title, and interests in and to the Services (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Services), including without limitation, all corrections, updates, modifications and other derivative works to the Services. All Intellectual Property Rights in any work arising from or created, produced or developed by Ministry Brands, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Ministry Brands, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Ministry Brands does not grant you any rights to the Services and reserves all rights in the Services. You do not acquire any ownership interest in the Services under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Ministry Brands or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.If you propose or provide any ideas, suggestions, enhancements, requests, recommendations or other feedback (“Feedback”) to Ministry Brands, then you assign all rights, title, and interests, including all Intellectual Property Rights, in this Feedback to Ministry Brands by providing it to Ministry Brands.
- Restrictions on UseWith respect to any Services that constitute software or software-as-a-service, you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to such Services in whole or in part, to any third party, or include such Services in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit such Services, including any part, feature, function, or user interface thereof except as expressly permitted by Ministry Brands under these Terms;
- interfere with or disrupt the integrity or performance of such Services or third-party data contained therein;
- attempt to gain unauthorized access to such Services or their related systems or networks;
- access such Services in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode such Services, in whole or in part, nor use any methods to gain access to the source code or infrastructure of such Services, in whole or in part;
- access or use such Services in order to benchmark or compare the performance of such Services, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from such Services, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such Services
- violate any applicable law or regulation in your use of such Services; or
- use such Services in any manner not permitted by these Terms.
- ConfidentialityThe Services contain proprietary and confidential information of Ministry Brands. “Confidential Information” means all information disclosed by Ministry Brands and its affiliates to you, which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information will not include information that as shown by your records: (i) is, or through no fault of yours has become, generally available to the public; (ii) was disclosed to you by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) was independently developed by you without use of Ministry Brands’ Confidential Information. You shall use no less than a reasonable standard of care to safeguard the Confidential Information you receive. You will only use the Confidential Information to exercise your rights and perform your obligations under these Terms or as otherwise required by law.You agree that any breach of Sections 14 and 15 would cause irreparable harm to Ministry Brands, for which remedies at law would be inadequate to compensate Ministry Brands for such harm and damage. Therefore, Ministry Brands shall be entitled to injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it. The foregoing shall be in addition to and shall not limit any other rights or remedies to which Ministry Brands may be entitled, at law or in equity.
- Data ProtectionWith respect to any Personal Data you may input, submit or otherwise provide to Ministry Brands in the course of using the Services, you represent and warrant that (i) all such Personal Data is true, accurate and complete, and does not falsely represent an affiliation with any person or entity, (ii) you have the consent and authorization of the individual to whom the Personal Data relates to provide their Personal Data to Ministry Brands, and (iii) your provision of such Personal Data to Ministry Brands complies with all applicable data protection laws pertaining in any way to the privacy, confidentiality, security, management, disclosure or other processing of Personal Data (including requirements to provide notice(s) regarding the collection and disclosure of the Personal Data and/or to obtain consent to such collection and disclosure).In providing the Services, Ministry Brands will (i) store, process and access Personal Data only to the extent reasonably necessary to provide you the Services and to improve the Services; (ii) implement and maintain commercially reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of Personal Data processed in the course of providing the Services; and (iii) not further use, retain, disclose, sell or share such Personal Data other than as necessary to provide the Services or as permitted by applicable law and set forth in these Terms.You are the sole and exclusive owner of your data. You hereby grant to Ministry Brands a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use your data (including Personal Data) to provide the Services and to create and use Aggregated Data for any purpose, to the extent permitted by applicable law, including for internal purposes, identifying trends within the Ministry Brands’ customer base and developing, providing, maintaining, supporting or improving Ministry Brands’ current and future products and services. For purposes of the foregoing, “Aggregated Data” means data which is based on or derived from your data but that has been aggregated, de-identified and/or anonymized (as may be required by applicable law) such that the Aggregated Data does not designate or identify any specific entity or individual person.
- DisclaimersTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE SERVICES WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE SERVICES (OR ANY SERVER(S) THAT MAKE THE SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS OF THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ComplianceYou represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- Your Indemnification
You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold MBH and its subsidiaries and affiliates, and any of its and their respective directors, officers, employees, agents and volunteers, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates and arising out of or in connection with: (i) you or your Authorized Users’ use of the Services; (ii) your data; (iii) your breach of these Terms; or (iv) any negligence or willful misconduct by or on behalf of you or your Authorized Users.You shall promptly notify Ministry Brands in writing upon discovery of any unauthorized use or infringement of the Services, or Ministry Brands’ Intellectual Property Rights with respect thereto. Ministry Brands shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Ministry Brands brings such an action or proceeding, you shall cooperate and provide full information and reasonable assistance to Ministry Brands and its counsel in connection with any such action or proceeding. - Limitation on LiabilityMINISTRY BRANDS’ AGGREGATE LIABILITY ARISING OUT OF THESE TERMS SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000.00 USD). IN NO EVENT SHALL MBH AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SUPPLIERS, AND ANY OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS BE LIABLE TO YOU FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MINISTRY BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
- Term and TerminationThese Terms will continue in full force and effect until these Terms are terminated as provided herein.Unless otherwise set forth in an Order Form, to the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless canceled beforehand by providing no less than thirty (30) days’ prior written notice with respect to monthly plans and no less than sixty (60) days’ prior written notice with respect to annual or multi-year plans. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. Multi-year plans renew for the same period as the initial multi-year term set forth in an Order Form. You must pay the annual, multi-year or monthly fee (plus any applicable taxes) when each renewal period starts. You may cancel your subscription by e-mailing Ministry Brands at client.relationships@ministrybrands.com indicating your desire to cancel, please include your name, organization and account number if known. A reply will be sent detailing, if applicable, any additional steps needed for full cancellation. If you are a subscriber to Sharefaith, in lieu of emailing, you may cancel your subscription in your account.Ministry Brands may terminate any Services at any time with or without notice. In addition, Ministry Brands shall have the right to discontinue any Service or any successor thereto, or any feature or function thereof with or without notice.These Terms and your access to any Service will terminate immediately and automatically without any notice and without liability if you violate any of these Terms or if Ministry Brands reasonably believes that your or an Authorized User’s access and use of any Service could subject Ministry Brands, its affiliates or any third party to liability.Ministry Brands may immediately suspend your or an Authorized User’s access and use of a Service or one or more portions of a Service if: (i) Ministry Brands believes there is a threat to the functionality, security, integrity, or availability of a Service to you or other customers; (ii) you breach Sections 3, 11,12,13 or 35; (iii) you or any Authorized User is accessing or using the Services to commit an illegal act; or (iv) requested by law enforcement or other government agencies. When reasonably practicable and lawfully permitted, Ministry Brands will provide you with advance notice of such suspension. Ministry Brands will use reasonable efforts to re-establish the affected Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse your payment obligations under these Terms.Upon termination of these Terms with respect to any or all Services: (a) you shall pay to Ministry Brands all fees due through the termination date; and (b) all rights granted with respect to the applicable Services will immediately terminate.Sections of these Terms concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.
- Force MajeureMinistry Brands shall not be deemed in breach of these Terms to the extent that performance of its obligations are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include, without limitation, acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party. If a Force Majeure event occurs, the time for performance shall be extended for a period equal to the duration of the Force Majeure.
- Arbitration, Class Action Waiver, and Jury WaiverPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND MINISTRY BRANDS AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.YOU AND MINISTRY BRANDS AGREE THAT ALL CLAIMS OR DISPUTES (WHETHER CONTRACT, TORT OR OTHERWISE), INCLUDING ALL STATUTORY CLAIMS AND DISPUTES, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other emergent relief. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of this Section 22 shall be decided by the arbitrator, except as expressly provided below with respect to the waivers contained in this Section.The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section 22. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For all claims: (i) any arbitration will proceed in the State of Tennessee; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, you shall not be responsible to pay any case initiation or similar fee unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in these Terms, nor will he, she, or they have authority to award sanctions of any type. Any decisions rendered in such arbitration proceedings shall be binding of each of the parties to the arbitration and judgement may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 22 is found invalid or unenforceable, the other parts of this Section 22 shall still apply.YOU AND MINISTRY BRANDS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ministry Brands are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ministry Brands over whether to vacate or enforce an arbitration award, YOU AND MINISTRY BRANDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. PRIVATE ATTORNEY GENERAL ACTIONS ARE PROHIBITED (UNLESS RESTRICTED BY APPLICABLE LAW). Notwithstanding any other provision of these Terms, disputes regarding the interpretation, applicability or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ministry Brands is entitled to arbitration; instead all claims and disputes will be resolved in a court as set out in Section 22.Any rights and limitations set forth in this Section 22 may be waived by the party against whom the claim is asserted. Such waiver will not waive or effect any other portion of this Section 22.This Section 22 will survive the termination of these Terms or your account.
- U.S. Service OnlyYou acknowledge, understand and agree that the Services are for use by users in the United States of America, its territories and possessions (the “United States”). You are prohibited from exporting, transferring, permitting or otherwise allowing the use of the Services to any person located outside of the United States or any country other than a country in which Ministry Brands has authorized your use of the Services, including, without limitation, using the Services to receive donations, contributions, or other payments into bank accounts located outside the United States. Ministry Brands does make any representations or warranties with respect to use of the Services outside the United States, including whether the Services will comply with foreign laws, rules and regulations, including any privacy or data protection laws.
- No Professional AdviceUnless specifically included with the Services, Ministry Brands is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice, including without limitation, in connection with any securities or cryptocurrency donations or processing. Consult the services of a competent professional when you need this type of assistance.
- Equitable RemediesNothing herein shall prohibit Ministry Brands from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Ministry Brands from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Ministry Brands’ Intellectual Property Rights.
- WaiverNo failure or delay by Ministry Brands in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Contact UsYou may contact Ministry Brands by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SeverabilityIf a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- No Third-Party BeneficiariesExcept as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- Section TitlesSection titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- Governing Law and VenueThese Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- AssignmentYou shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Ministry Brands. Any attempted assignment in violation hereof shall be void and of no force or effect. Ministry Brands may assign its rights and delegate its duties hereunder at any time without your consent.
- Entire Agreement; ModificationThese Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Ministry Brands reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
- HardwareIf you elect to purchase any hardware, such as check scanners or card scanners, such hardware shall be purchased at the price indicated on the Order Form. All hardware will be shipped F.O.B origin. You will be responsible for all delivery costs, which shall be reflected on your invoice. Your payment of delivery costs shall be due and payable within thirty (30) days of your receipt of an invoice.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL HARDWARE IS PROVIDED “AS-IS,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.
- Sanctions and Export ComplianceYou are solely responsible for ensuring that your use of the Services is in compliance with all applicable sanctions and export control laws and that your Authorized Users understand and acknowledge their responsibility to use the Services in compliance with all applicable sanctions and export control laws. You certify that you and your Authorized Users, or any party that owns or controls you or your Authorized Users are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to comprehensive economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity listed on or covered by the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other applicable sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) the target or subject of any trade or economic sanctions or export control restrictions by European Union, the United Kingdom or the United States. You also certify that you and your Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available the Services, to any person described in (i) through (iii) or in violation of, or for any purpose prohibited by, any applicable sanctions and export control laws, including for proliferation-related end uses. You agree that Ministry Brands has no obligation to provide the Services where Ministry Brands believes the provision of the Services could violate any sanctions and export control laws.
Effective May 11th 2023 to October 9th 2023
DownloadTable of Contents
Welcome to Ministry Brands! These Terms of Service (these “Terms”) describe your rights and responsibilities as a customer or user of our products and services, including our hosted services, software and content delivered to you (collectively, our “Services”). These Terms form a legally binding contract between you and Ministry Brands Holdings, LLC (“MBH”) on behalf of itself and its subsidiaries (“Ministry Brands”) so please read them carefully.
- Overview
These Terms apply to your use of the Ministry Brands’ Services for which you have (i) registered online, (ii) registered online for a free trial period, or (iii) entered into an Order Form with Ministry Brands. The Services may include mobile or tablet application versions that are available to be downloaded or accessed by you.
These Terms shall also apply to and govern the use of our Services by your employees or any agents, contractors, affiliated churches and their users, congregants, parishioners, or other persons to whom you provide access to the Services (“Authorized Users”). You shall be liable for any Authorized User’s violation of these Terms.
If you have entered into an Order Form with Ministry Brands for the Services, and there is a conflict between the Order Form and these Terms, the terms of the Order Form shall control. An “Order Form” means an addendum addressing the acquisition of a specific set of services executed by authorized representatives of you and Ministry Brands. References to the Order Form include any attachments to the Order Form.
Additional terms and conditions listed on the Ministry Brands Legal Center page or that are otherwise made available to you may apply to specific Services. If you use those Services, then those additional terms become part of these Terms. If any of the applicable additional terms conflict with these Terms, such additional terms will prevail while you are using the Services to which they apply.
Please carefully review our Privacy Policy before submitting any Personal Data through the Services.
MINISTRY BRANDS MAY UPDATE OR MODIFY THESE TERMS AT ANY TIME BY POSTING THE AMENDED VERSION ON OUR WEBSITE. BY CONTINUING TO USE OUR SERVICES YOU ACCEPT ANY REVISED TERMS. - Your AccountTo use certain Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. Ministry Brands may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from Ministry Brands and its partners at the email address and/or phone number you provide. You agree to provide Ministry Brands with your current, valid contact information and to update your email address and phone number any time this information changes.In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify Ministry Brands if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Ministry Brands will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials.Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Grant of Rights to YouSubject to your compliance with these Terms, Ministry Brands hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Services solely as expressly authorized by Ministry Brands under these Terms and any applicable product specific terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Services and maintain an account may provide access to the Services to Authorized Users.
- Your ResponsibilitiesYou shall obtain all consents, permissions, and authorizations required under applicable law from Authorized Users and other individual end users as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Services, including, without limitation, any personally identifiable information (“Personal Data”). You understand that all online and cloud based services require internet access and you shall be solely responsible for your systems through which the Services are accessed. You agree to notify Ministry Brands in writing immediately if your authorized administrator has been replaced. Such notification shall be in writing on your letterhead and signed by either an authorized officer or your lead pastor or priest, as applicable.
- Service UpdatesFor Services comprised of software or software-as-a-service, which may include our church management and giving solutions, Ministry Brands may from time to time update, upgrade, replace, and/or modify such Services and/or provide a new release(s), or patches or fixes to such Services, as Ministry Brands, in its sole discretion, deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to such Services will be considered part of such Services and subject to these Terms as they may be amended from time to time. Ministry Brands shall have the right to migrate your account to a successor or alternative platform or technology that replaces existing Services from time to time as Ministry Brands evolves its products and technologies and your use of such successor Services shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you).
- Mobile ApplicationsWe may offer mobile application versions of certain Services (each, an “App”) directly or through third-party stores. Subject to your compliance with these Terms, Ministry Brands grants you a limited, non-exclusive, non-transferable, revocable license to download and use the Apps. We may update Apps from time to time to add new features and/or correct bugs. You shall ensure that you are using the most recent version of the App that is compatible with your device. We cannot guarantee that you will be able to use the most recent version of an App on your device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for using the Apps. You agree that you are solely responsible for any applicable charges. Any third-party open source software included in an App is subject to the applicable open source license and may be available directly from the creator under an open source license. These Terms do not apply to your use of software obtained from a third-party source under an open source license.The following additional terms apply to you if you download an App through the Apple Store:
- These Terms are between you and Ministry Brands, but not Apple, Inc. (“Apple”). Ministry Brands, not Apple, offers the App to you, and Apple has no responsibility to you for any use of, or information related to, the App, and these Terms.
- You may only use the App on an Apple device that you own or control and as permitted by the App Store’s terms of service.
- Apple has no obligation to provide maintenance and support services with respect to the App, as used on your iPhone, iPad, or iPod Touch devices. If an App fails to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the App through the Apple Store, if applicable. Apple has no other warranty obligation with respect to the App.
- Should you have any claim, whether you claim directly or whether a third-party claim has been filed against you, relating to your use of the App, Apple shall have no responsibility to you.
- You and Ministry Brands hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce these Terms against you.
The following additional terms apply to you if you download an App through Google Play: - These Terms are applicable between you and Ministry Brands, but not Google, Inc. (“Google”). Ministry Brands, not Google, offers the App to you, and Google has no responsibility to you for any use of, or information related to, the App and these Terms. Google shall not be responsible to you for maintenance of the App.
- Google shall not be responsible to you for any complaints you have regarding the App, as used on your Android device.
- CommunicationsBy enabling push notifications through a Service, you consent and give permission to receive such notifications from Ministry Brands and its partners. You may manage your notification settings by updating your profile on the applicable Service or updating your phone settings. You understand that consent is not a condition of purchase. You understand that Ministry Brands deploys a variety of communication means to notify you of updates, modifications, changes, etc. including without limitation application cues, chat post messaging, and invoice messaging and agree to promptly read such communications.
- Third Party Applications
If Ministry Brands provides any integration or interfaces between a Service and any third party products and/or services with functionality that interoperates with Service or other content or data on the Service (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Ministry Brands to integrate with such Third Party-Applications, and to use and store in the Platform any and all data received from or through such Third Party-Applications. Ministry Brands and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Ministry Brands cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with a Service in a manner acceptable to Ministry Brands. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use a Service. For example, if you turn on our YouTube integration, you are agreeing to the YouTube Terms of Service (www.youtube.com/t/terms). You will indemnify Ministry Brands and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Ministry Brands or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Personal Data). - Third Party MaterialsThe Services may display, include, or make available third-party content or provide links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that Ministry Brands and its affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ministry Brands and its affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience, and you acknowledge and agree that you access and use such Third-Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
- Professional Services
We may provide certain professional services to you as indicated in your Order Form or if you have purchased them online (“Professional Services”). Professional Services are provided on an “as is” basis and are subject to our Professional Services Addendum. - FeesYou must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Our fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. Fees are non-cancellable and non-refundable.Ministry Brands may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription or any variable, transaction or usage fees, or institute new charges or fees. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30 days’ notice. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next monthly term after the 30 days’ notice. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using the applicable Service prior to the commencement of the renewal subscription period for which the price change applies.If you are subscribing to a subscription that automatically renews and you are paying via credit card, or a Service that does not automatically renew but for which you have agreed to keep your credit card on file with us, you authorize Ministry Brands to charge the applicable subscription and other transaction or usage fees at the then applicable rate plus any applicable taxes for the subscription to your credit card on file at the expiration of the term. Your subscription may only be cancelled as set out in Section 20. Ministry Brands may suspend your access to the Services without prior notice if Ministry Brands is unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.If you are not paying via a credit card, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. Invoicing shall occur on a monthly, annual or multi-year basis depending on whether a monthly, annual or multi-year plan is selected when you first contract to receive Services. In addition, without limiting its other rights, if any fees are owed and not paid by you when due, Ministry Brands may suspend your access to the Service(s) without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.
Any payment not received from you by the payment due date will accrue simple interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee. If you cancel your subscription or at the expiration of a free trial period, any text, logos, images, photos, videos and/or other materials that you have entered into or created within the Service or posted or uploaded during your subscription (“Content”) will no longer be available to you. To be very clear, if you cancel any applicable Services, unless required by law, you will not be able to access or retrieve any of the Content and data you added, uploaded, or created during the time you subscribed to those Services.You shall pay or reimburse Ministry Brands for all taxes arising out of these Terms other than Ministry Brands’ income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Ministry Brands by the amount of such taxes so that Ministry Brands receives the full amount of Fees and expenses. If Ministry Brands has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Ministry Brands with a valid tax exemption certificate authorized by the appropriate taxing authority. Ministry Brands’ failure to initially invoice you for any applicable taxes does not relieve you for responsibility for such taxes under these Terms. - Intellectual Property of Ministry BrandsYou recognize that Ministry Brands and its third-party licensors own all rights, title, and interests in and to the Services (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Services), including without limitation, all corrections, updates, modifications and other derivative works to the Services. All Intellectual Property Rights in any work arising from or created, produced or developed by Ministry Brands, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Ministry Brands, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Ministry Brands does not grant you any rights to the Services and reserves all rights in the Services. You do not acquire any ownership interest in the Services under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Ministry Brands or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.If you propose or provide any ideas, suggestions, enhancements, requests, recommendations or other feedback (“Feedback”) to Ministry Brands, then you assign all rights, title, and interests, including all Intellectual Property Rights, in this Feedback to Ministry Brands by providing it to Ministry Brands.
- Restrictions on UseWith respect to any Services that constitute software or software-as-a-service, you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to such Services in whole or in part, to any third party, or include such Services in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit such Services, including any part, feature, function, or user interface thereof except as expressly permitted by Ministry Brands under these Terms;
- interfere with or disrupt the integrity or performance of such Services or third-party data contained therein;
- attempt to gain unauthorized access to such Services or their related systems or networks;
- access such Services in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode such Services, in whole or in part, nor use any methods to gain access to the source code or infrastructure of such Services, in whole or in part;
- access or use such Services in order to benchmark or compare the performance of such Services, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from such Services, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such Services
- violate any applicable law or regulation in your use of such Services; or
- use such Services in any manner not permitted by these Terms.
- ConfidentialityThe Services contain proprietary and confidential information of Ministry Brands. “Confidential Information” means all information disclosed by Ministry Brands and its affiliates to you, which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information will not include information that as shown by your records: (i) is, or through no fault of yours has become, generally available to the public; (ii) was disclosed to you by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) was independently developed by you without use of Ministry Brands’ Confidential Information. You shall use no less than a reasonable standard of care to safeguard the Confidential Information you receive. You will only use the Confidential Information to exercise your rights and perform your obligations under these Terms or as otherwise required by law.You agree that any breach of Sections 14 and 15 would cause irreparable harm to Ministry Brands, for which remedies at law would be inadequate to compensate Ministry Brands for such harm and damage. Therefore, Ministry Brands shall be entitled to injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it. The foregoing shall be in addition to and shall not limit any other rights or remedies to which Ministry Brands may be entitled, at law or in equity.
- Data ProtectionWith respect to any Personal Data you may input, submit or otherwise provide to Ministry Brands in the course of using the Services, you represent and warrant that (i) all such Personal Data is true, accurate and complete, and does not falsely represent an affiliation with any person or entity, (ii) you have the consent and authorization of the individual to whom the Personal Data relates to provide their Personal Data to Ministry Brands, and (iii) your provision of such Personal Data to Ministry Brands complies with all applicable data protection laws pertaining in any way to the privacy, confidentiality, security, management, disclosure or other processing of Personal Data (including requirements to provide notice(s) regarding the collection and disclosure of the Personal Data and/or to obtain consent to such collection and disclosure).In providing the Services, Ministry Brands will (i) store, process and access Personal Data only to the extent reasonably necessary to provide you the Services and to improve the Services; (ii) implement and maintain commercially reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of Personal Data processed in the course of providing the Services; and (iii) not further use, retain, disclose, sell or share such Personal Data other than as necessary to provide the Services or as permitted by applicable law and set forth in these Terms.You are the sole and exclusive owner of your data. You hereby grant to Ministry Brands a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use your data (including Personal Data) to provide the Services and to create and use Aggregated Data for any purpose, to the extent permitted by applicable law, including for internal purposes, identifying trends within the Ministry Brands’ customer base and developing, providing, maintaining, supporting or improving Ministry Brands’ current and future products and services. For purposes of the foregoing, “Aggregated Data” means data which is based on or derived from your data but that has been aggregated, de-identified and/or anonymized (as may be required by applicable law) such that the Aggregated Data does not designate or identify any specific entity or individual person.
- DisclaimersTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE SERVICES WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE SERVICES (OR ANY SERVER(S) THAT MAKE THE SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS OF THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ComplianceYou represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- Your Indemnification
You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold MBH and its subsidiaries and affiliates, and any of its and their respective directors, officers, employees, agents and volunteers, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates and arising out of or in connection with: (i) you or your Authorized Users’ use of the Services; (ii) your data; (iii) your breach of these Terms; or (iv) any negligence or willful misconduct by or on behalf of you or your Authorized Users.You shall promptly notify Ministry Brands in writing upon discovery of any unauthorized use or infringement of the Services, or Ministry Brands’ Intellectual Property Rights with respect thereto. Ministry Brands shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Ministry Brands brings such an action or proceeding, you shall cooperate and provide full information and reasonable assistance to Ministry Brands and its counsel in connection with any such action or proceeding. - Limitation on LiabilityMINISTRY BRANDS’ AGGREGATE LIABILITY ARISING OUT OF THESE TERMS SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000.00 USD). IN NO EVENT SHALL MBH AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SUPPLIERS, AND ANY OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS BE LIABLE TO YOU FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MINISTRY BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
- Term and TerminationThese Terms will continue in full force and effect until these Terms are terminated as provided herein.Unless otherwise set forth in an Order Form, to the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless canceled beforehand by providing no less than thirty (30) days’ prior written notice with respect to monthly plans and no less than sixty (60) days’ prior written notice with respect to annual or multi-year plans. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. Multi-year plans renew for the same period as the initial multi-year term set forth in an Order Form. You must pay the annual, multi-year or monthly fee (plus any applicable taxes) when each renewal period starts. You may cancel your subscription by e-mailing Ministry Brands at client.relationships@ministrybrands.com indicating your desire to cancel, please include your name, organization and account number if known. A reply will be sent detailing, if applicable, any additional steps needed for full cancellation. If you are a subscriber to Sharefaith, in lieu of emailing, you may cancel your subscription in your account.Ministry Brands may terminate any Services at any time with or without notice. In addition, Ministry Brands shall have the right to discontinue any Service or any successor thereto, or any feature or function thereof with or without notice.These Terms and your access to any Service will terminate immediately and automatically without any notice and without liability if you violate any of these Terms or if Ministry Brands reasonably believes that your or an Authorized User’s access and use of any Service could subject Ministry Brands, its affiliates or any third party to liability.Ministry Brands may immediately suspend your or an Authorized User’s access and use of a Service or one or more portions of a Service if: (i) Ministry Brands believes there is a threat to the functionality, security, integrity, or availability of a Service to you or other customers; (ii) you breach Sections 3, 11,12,13 or 35; (iii) you or any Authorized User is accessing or using the Services to commit an illegal act; or (iv) requested by law enforcement or other government agencies. When reasonably practicable and lawfully permitted, Ministry Brands will provide you with advance notice of such suspension. Ministry Brands will use reasonable efforts to re-establish the affected Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse your payment obligations under these Terms.Upon termination of these Terms with respect to any or all Services: (a) you shall pay to Ministry Brands all fees due through the termination date; and (b) all rights granted with respect to the applicable Services will immediately terminate.Sections of these Terms concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.
- Force MajeureMinistry Brands shall not be deemed in breach of these Terms to the extent that performance of its obligations are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include, without limitation, acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party. If a Force Majeure event occurs, the time for performance shall be extended for a period equal to the duration of the Force Majeure.
- Arbitration, Class Action Waiver, and Jury WaiverPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND MINISTRY BRANDS AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.YOU AND MINISTRY BRANDS AGREE THAT ALL CLAIMS OR DISPUTES (WHETHER CONTRACT, TORT OR OTHERWISE), INCLUDING ALL STATUTORY CLAIMS AND DISPUTES, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other emergent relief. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of this Section 22 shall be decided by the arbitrator, except as expressly provided below with respect to the waivers contained in this Section.The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section 22. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For all claims: (i) any arbitration will proceed in the State of Tennessee; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, you shall not be responsible to pay any case initiation or similar fee unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in these Terms, nor will he, she, or they have authority to award sanctions of any type. Any decisions rendered in such arbitration proceedings shall be binding of each of the parties to the arbitration and judgement may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 22 is found invalid or unenforceable, the other parts of this Section 22 shall still apply.YOU AND MINISTRY BRANDS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ministry Brands are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ministry Brands over whether to vacate or enforce an arbitration award, YOU AND MINISTRY BRANDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. PRIVATE ATTORNEY GENERAL ACTIONS ARE PROHIBITED (UNLESS RESTRICTED BY APPLICABLE LAW). Notwithstanding any other provision of these Terms, disputes regarding the interpretation, applicability or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ministry Brands is entitled to arbitration; instead all claims and disputes will be resolved in a court as set out in Section 22.Any rights and limitations set forth in this Section 22 may be waived by the party against whom the claim is asserted. Such waiver will not waive or effect any other portion of this Section 22.This Section 22 will survive the termination of these Terms or your account.
- U.S. Service OnlyYou acknowledge, understand and agree that the Services are for use by users in the United States of America, its territories and possessions (the “United States”). You are prohibited from exporting, transferring, permitting or otherwise allowing the use of the Services to any person located outside of the United States or any country other than a country in which Ministry Brands has authorized your use of the Services. Ministry Brands does make any representations or warranties with respect to use of the Services outside the United States, including whether the Services will comply with foreign laws, rules and regulations, including any privacy or data protection laws.
- No Professional AdviceUnless specifically included with the Services, Ministry Brands is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
- Equitable RemediesNothing herein shall prohibit Ministry Brands from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Ministry Brands from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Ministry Brands’ Intellectual Property Rights.
- WaiverNo failure or delay by Ministry Brands in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Contact UsYou may contact Ministry Brands by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SeverabilityIf a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- No Third-Party BeneficiariesExcept as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- Section TitlesSection titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- Governing Law and VenueThese Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- AssignmentYou shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Ministry Brands. Any attempted assignment in violation hereof shall be void and of no force or effect. Ministry Brands may assign its rights and delegate its duties hereunder at any time without your consent.
- Entire Agreement; ModificationThese Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Ministry Brands reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
- HardwareIf you elect to purchase any hardware, such as check scanners or card scanners, such hardware shall be purchased at the price indicated on the Order Form. All hardware will be shipped F.O.B origin. You will be responsible for all delivery costs, which shall be reflected on your invoice. Your payment of delivery costs shall be due and payable within thirty (30) days of your receipt of an invoice.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL HARDWARE IS PROVIDED “AS-IS,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.
- Sanctions and Export ComplianceYou are solely responsible for ensuring that your use of the Services is in compliance with all applicable sanctions and export control laws and that your Authorized Users understand and acknowledge their responsibility to use the Services in compliance with all applicable sanctions and export control laws. You certify that you and your Authorized Users, or any party that owns or controls you or your Authorized Users are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to comprehensive economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity listed on or covered by the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other applicable sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) the target or subject of any trade or economic sanctions or export control restrictions by European Union, the United Kingdom or the United States. You also certify that you and your Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available the Services, to any person described in (i) through (iii) or in violation of, or for any purpose prohibited by, any applicable sanctions and export control laws, including for proliferation-related end uses. You agree that Ministry Brands has no obligation to provide the Services where Ministry Brands believes the provision of the Services could violate any sanctions and export control laws.
Effective March 24th 2023 to May 11th 2023
DownloadTable of Contents
Welcome to Ministry Brands! These Terms of Service (these “Terms”) describe your rights and responsibilities as a customer or user of our products and services, including our hosted services, software and content delivered to you (collectively, our “Services”). These Terms form a legally binding contract between you and Ministry Brands Holdings, LLC (“MBH”) on behalf of itself and its subsidiaries (“Ministry Brands”) so please read them carefully.
- Overview
These Terms apply to your use of the Ministry Brands’ Services for which you have (i) registered online, (ii) registered online for a free trial period, or (iii) entered into an Order Form with Ministry Brands. The Services may include mobile or tablet application versions that are available to be downloaded or accessed by you.
These Terms shall also apply to and govern the use of our Services by your employees or any agents, contractors, affiliated churches and their users, congregants, parishioners, or other persons to whom you provide access to the Services (“Authorized Users”). You shall be liable for any Authorized User’s violation of these Terms.
If you have entered into an Order Form with Ministry Brands for the Services, and there is a conflict between the Order Form and these Terms, the terms of the Order Form shall control. An “Order Form” means an addendum addressing the acquisition of a specific set of services executed by authorized representatives of you and Ministry Brands. References to the Order Form include any attachments to the Order Form.
Additional terms and conditions listed on the Ministry Brands Legal Center page or that are otherwise made available to you may apply to specific Services. If you use those Services, then those additional terms become part of these Terms. If any of the applicable additional terms conflict with these Terms, such additional terms will prevail while you are using the Services to which they apply.
Please carefully review our Privacy Policy before submitting any Personal Data through the Services.
MINISTRY BRANDS MAY UPDATE OR MODIFY THESE TERMS AT ANY TIME BY POSTING THE AMENDED VERSION ON OUR WEBSITE. BY CONTINUING TO USE OUR SERVICES YOU ACCEPT ANY REVISED TERMS. - Your AccountTo use certain Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. Ministry Brands may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from Ministry Brands and its partners at the email address and/or phone number you provide. You agree to provide Ministry Brands with your current, valid contact information and to update your email address and phone number any time this information changes.In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify Ministry Brands if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Ministry Brands will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials.Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Grant of Rights to YouSubject to your compliance with these Terms, Ministry Brands hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Services solely as expressly authorized by Ministry Brands under these Terms and any applicable product specific terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Services and maintain an account may provide access to the Services to Authorized Users.
- Your ResponsibilitiesYou shall obtain all consents, permissions, and authorizations required under applicable law from Authorized Users and other individual end users as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Services, including, without limitation, any personally identifiable information (“Personal Data”). You understand that all online and cloud based services require internet access and you shall be solely responsible for your systems through which the Services are accessed. You agree to notify Ministry Brands in writing immediately if your authorized administrator has been replaced. Such notification shall be in writing on your letterhead and signed by either an authorized officer or your lead pastor or priest, as applicable.
- Service UpdatesFor Services comprised of software or software-as-a-service, which may include our church management and giving solutions, Ministry Brands may from time to time update, upgrade, replace, and/or modify such Services and/or provide a new release(s), or patches or fixes to such Services, as Ministry Brands, in its sole discretion, deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to such Services will be considered part of such Services and subject to these Terms as they may be amended from time to time. Ministry Brands shall have the right to migrate your account to a successor or alternative platform or technology that replaces existing Services from time to time as Ministry Brands evolves its products and technologies and your use of such successor Services shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you).
- Mobile ApplicationsWe may offer mobile application versions of certain Services (each, an “App”) directly or through third-party stores. Subject to your compliance with these Terms, Ministry Brands grants you a limited, non-exclusive, non-transferable, revocable license to download and use the Apps. We may update Apps from time to time to add new features and/or correct bugs. You shall ensure that you are using the most recent version of the App that is compatible with your device. We cannot guarantee that you will be able to use the most recent version of an App on your device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for using the Apps. You agree that you are solely responsible for any applicable charges. Any third-party open source software included in an App is subject to the applicable open source license and may be available directly from the creator under an open source license. These Terms do not apply to your use of software obtained from a third-party source under an open source license.The following additional terms apply to you if you download an App through the Apple Store:
- These Terms are between you and Ministry Brands, but not Apple, Inc. (“Apple”). Ministry Brands, not Apple, offers the App to you, and Apple has no responsibility to you for any use of, or information related to, the App, and these Terms.
- You may only use the App on an Apple device that you own or control and as permitted by the App Store’s terms of service.
- Apple has no obligation to provide maintenance and support services with respect to the App, as used on your iPhone, iPad, or iPod Touch devices. If an App fails to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the App through the Apple Store, if applicable. Apple has no other warranty obligation with respect to the App.
- Should you have any claim, whether you claim directly or whether a third-party claim has been filed against you, relating to your use of the App, Apple shall have no responsibility to you.
- You and Ministry Brands hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce these Terms against you.
The following additional terms apply to you if you download an App through Google Play: - These Terms are applicable between you and Ministry Brands, but not Google, Inc. (“Google”). Ministry Brands, not Google, offers the App to you, and Google has no responsibility to you for any use of, or information related to, the App and these Terms. Google shall not be responsible to you for maintenance of the App.
- Google shall not be responsible to you for any complaints you have regarding the App, as used on your Android device.
- CommunicationsBy enabling push notifications through a Service, you consent and give permission to receive such notifications from Ministry Brands and its partners. You may manage your notification settings by updating your profile on the applicable Service or updating your phone settings. You understand that consent is not a condition of purchase. You understand that Ministry Brands deploys a variety of communication means to notify you of updates, modifications, changes, etc. including without limitation application cues, chat post messaging, and invoice messaging and agree to promptly read such communications.
- Third Party Applications
If Ministry Brands provides any integration or interfaces between a Service and any third party products and/or services with functionality that interoperates with Service or other content or data on the Service (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Ministry Brands to integrate with such Third Party-Applications, and to use and store in the Platform any and all data received from or through such Third Party-Applications. Ministry Brands and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Ministry Brands cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with a Service in a manner acceptable to Ministry Brands. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use a Service. For example, if you turn on our YouTube integration, you are agreeing to the YouTube Terms of Service (www.youtube.com/t/terms). You will indemnify Ministry Brands and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Ministry Brands or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Personal Data). - Third Party MaterialsThe Services may display, include, or make available third-party content or provide links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that Ministry Brands and its affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ministry Brands and its affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience, and you acknowledge and agree that you access and use such Third-Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
- Professional Services
We may provide certain professional services to you as indicated in your Order Form or if you have purchased them online (“Professional Services”). Professional Services are provided on an “as is” basis and are subject to our Professional Services Addendum. - FeesYou must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Our fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. Fees are non-cancellable and non-refundable.Ministry Brands may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription or any variable, transaction or usage fees, or institute new charges or fees. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30 days’ notice. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next monthly term after the 30 days’ notice. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using the applicable Service prior to the commencement of the renewal subscription period for which the price change applies.If you are subscribing to a subscription that automatically renews and you are paying via credit card, or a Service that does not automatically renew but for which you have agreed to keep your credit card on file with us, you authorize Ministry Brands to charge the applicable subscription and other transaction or usage fees at the then applicable rate plus any applicable taxes for the subscription to your credit card on file at the expiration of the term. Your subscription may only be cancelled as set out in Section 20. Ministry Brands may suspend your access to the Services without prior notice if Ministry Brands is unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.If you are not paying via a credit card, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. Invoicing shall occur on a monthly, annual or multi-year basis depending on whether a monthly, annual or multi-year plan is selected when you first contract to receive Services. In addition, without limiting its other rights, if any fees are owed and not paid by you when due, Ministry Brands may suspend your access to the Service(s) without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.
Any payment not received from you by the payment due date will accrue simple interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee. If you cancel your subscription or at the expiration of a free trial period, any text, logos, images, photos, videos and/or other materials that you have entered into or created within the Service or posted or uploaded during your subscription (“Content”) will no longer be available to you. To be very clear, if you cancel any applicable Services, unless required by law, you will not be able to access or retrieve any of the Content and data you added, uploaded, or created during the time you subscribed to those Services.You shall pay or reimburse Ministry Brands for all taxes arising out of these Terms other than Ministry Brands’ income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Ministry Brands by the amount of such taxes so that Ministry Brands receives the full amount of Fees and expenses. If Ministry Brands has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Ministry Brands with a valid tax exemption certificate authorized by the appropriate taxing authority. Ministry Brands’ failure to initially invoice you for any applicable taxes does not relieve you for responsibility for such taxes under these Terms. - Intellectual Property of Ministry BrandsYou recognize that Ministry Brands and its third-party licensors own all rights, title, and interests in and to the Services (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Services), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Ministry Brands, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Ministry Brands, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Ministry Brands does not grant you any rights to the Services and reserves all rights in the Services. You do not acquire any ownership interest in the Services under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Ministry Brands or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.If you propose or provide any ideas, suggestions, enhancements, requests, recommendations or other feedback (“Feedback”) to Ministry Brands, then you assign all rights, title, and interests, including all Intellectual Property Rights, in this Feedback to Ministry Brands by providing it to Ministry Brands.
- Restrictions on UseWith respect to any Services that constitute software or software-as-a-service, you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to such Services in whole or in part, to any third party, or include such Services in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit such Services, including any part, feature, function, or user interface thereof except as expressly permitted by Ministry Brands under these Terms;
- interfere with or disrupt the integrity or performance of such Services or third-party data contained therein;
- attempt to gain unauthorized access to such Services or their related systems or networks;
- access such Services in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode such Services, in whole or in part, nor use any methods to gain access to the source code or infrastructure of such Services, in whole or in part;
- access or use such Services in order to benchmark or compare the performance of such Services, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from such Services, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such Services
- violate any applicable law or regulation in your use of such Services; or
- use such Services in any manner not permitted by these Terms.
- ConfidentialityThe Services contain proprietary and confidential information of Ministry Brands. “Confidential Information” means all information disclosed by Ministry Brands and its affiliates to you, which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information will not include information that as shown by your records: (i) is, or through no fault of yours has become, generally available to the public; (ii) was disclosed to you by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) was independently developed by you without use of Ministry Brands’ Confidential Information. You shall use no less than a reasonable standard of care to safeguard the Confidential Information you receive. You will only use the Confidential Information to exercise your rights and perform your obligations under these Terms or as otherwise required by law.You agree that any breach of Sections 14 and 15 would cause irreparable harm to Ministry Brands, for which remedies at law would be inadequate to compensate Ministry Brands for such harm and damage. Therefore, Ministry Brands shall be entitled to injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it. The foregoing shall be in addition to and shall not limit any other rights or remedies to which Ministry Brands may be entitled, at law or in equity.
- Data ProtectionWith respect to any Personal Data you may input, submit or otherwise provide to Ministry Brands in the course of using the Services, you represent and warrant that (i) all such Personal Data is true, accurate and complete, and does not falsely represent an affiliation with any person or entity, (ii) you have the consent and authorization of the individual to whom the Personal Data relates to provide their Personal Data to Ministry Brands, and (iii) your provision of such Personal Data to Ministry Brands complies with all applicable data protection laws pertaining in any way to the privacy, confidentiality, security, management, disclosure or other processing of Personal Data (including requirements to provide notice(s) regarding the collection and disclosure of the Personal Data and/or to obtain consent to such collection and disclosure).In providing the Services, Ministry Brands will (i) store, process and access Personal Data only to the extent reasonably necessary to provide you the Services and to improve the Services; (ii) implement and maintain commercially reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of Personal Data processed in the course of providing the Services; and (iii) not further use, retain, disclose, sell or share such Personal Data other than as necessary to provide the Services or as permitted by applicable law and set forth in these Terms.You are the sole and exclusive owner of your data. You hereby grant to Ministry Brands a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use your data (including Personal Data) to provide the Services and to create and use Aggregated Data for any purpose, to the extent permitted by applicable law, including for internal purposes, identifying trends within the Ministry Brands’ customer base and developing, providing, maintaining, supporting or improving Ministry Brands’ current and future products and services. For purposes of the foregoing, “Aggregated Data” means data which is based on or derived from your data but that has been aggregated, de-identified and/or anonymized (as may be required by applicable law) such that the Aggregated Data does not designate or identify any specific entity or individual person.
- DisclaimersTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE SERVICES WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE SERVICES (OR ANY SERVER(S) THAT MAKE THE PLATFORM AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE PLATFORM, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS OF THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ComplianceYou represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- Your Indemnification
You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold MBH and its subsidiaries and affiliates, and any of its and their respective directors, officers, employees, agents and volunteers, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates and arising out of or in connection with: (i) you or your Authorized Users’ use of the Services; (ii) your data; (iii) your breach of these Terms; or (iv) any negligence or willful misconduct by or on behalf of you or your Authorized Users.You shall promptly notify Ministry Brands in writing upon discovery of any unauthorized use or infringement of the Services, or Ministry Brands’ Intellectual Property Rights with respect thereto. Ministry Brands shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Ministry Brands brings such an action or proceeding, you shall cooperate and provide full information and reasonable assistance to Ministry Brands and its counsel in connection with any such action or proceeding. - Limitation on LiabilityMINISTRY BRANDS’ AGGREGATE LIABILITY ARISING OUT OF THESE TERMS SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000.00 USD). IN NO EVENT SHALL MBH AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SUPPLIERS, AND ANY OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS BE LIABLE TO YOU FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MINISTRY BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
- Term and TerminationThese Terms will continue in full force and effect until these Terms are terminated as provided herein.Unless otherwise set forth in an Order Form, to the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless canceled beforehand by providing no less than thirty (30) days’ prior written notice with respect to monthly plans and no less than sixty (60) days’ prior written notice with respect to annual or multi-year plans. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. Multi-year plans renew for the same period as the initial multi-year term set forth in an Order Form. You must pay the annual, multi-year or monthly fee (plus any applicable taxes) when each renewal period starts. You may cancel your subscription by e-mailing Ministry Brands at client.relationships@ministrybrands.com indicating your desire to cancel, please include your name, organization and account number if known. A reply will be sent detailing, if applicable, any additional steps needed for full cancellation. If you are a subscriber to Sharefaith, in lieu of emailing, you may cancel your subscription in your account.Ministry Brands may terminate any Services at any time with or without notice. In addition, Ministry Brands shall have the right to discontinue any Service or any successor thereto, or any feature or function thereof with or without notice.These Terms and your access to any Service will terminate immediately and automatically without any notice and without liability if you violate any of these Terms or if Ministry Brands reasonably believes that your or an Authorized User’s access and use of any Service could subject Ministry Brands, its affiliates or any third party to liability.Ministry Brands may immediately suspend your or an Authorized User’s access and use of a Service or one or more portions of a Service if: (i) Ministry Brands believes there is a threat to the functionality, security, integrity, or availability of a Service to you or other customers; (ii) you breach Sections 3, 11,12,13 or 35; (iii) you or any Authorized User is accessing or using the Services to commit an illegal act; or (iv) requested by law enforcement or other government agencies. When reasonably practicable and lawfully permitted, Ministry Brands will provide you with advance notice of such suspension. Ministry Brands will use reasonable efforts to re-establish the affected Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse your payment obligations under these Terms.Upon termination of these Terms with respect to any or all Services: (a) you shall pay to Ministry Brands all fees due through the termination date; and (b) all rights granted with respect to the applicable Services will immediately terminate.Sections of these Terms concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.
- Force MajeureMinistry Brands shall not be deemed in breach of these Terms to the extent that performance of its obligations are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include, without limitation, acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party. If a Force Majeure event occurs, the time for performance shall be extended for a period equal to the duration of the Force Majeure.
- Arbitration, Class Action Waiver, and Jury WaiverPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND MINISTRY BRANDS AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.YOU AND MINISTRY BRANDS AGREE THAT ALL CLAIMS OR DISPUTES (WHETHER CONTRACT, TORT OR OTHERWISE), INCLUDING ALL STATUTORY CLAIMS AND DISPUTES, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other emergent relief. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of this Section 22 shall be decided by the arbitrator, except as expressly provided below with respect to the waivers contained in this Section.The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section 22. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For all claims: (i) any arbitration will proceed in the State of Tennessee; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, you shall not be responsible to pay any case initiation or similar fee unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in these Terms, nor will he, she, or they have authority to award sanctions of any type. Any decisions rendered in such arbitration proceedings shall be binding of each of the parties to the arbitration and judgement may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 22 is found invalid or unenforceable, the other parts of this Section 22 shall still apply.YOU AND MINISTRY BRANDS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ministry Brands are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ministry Brands over whether to vacate or enforce an arbitration award, YOU AND MINISTRY BRANDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. PRIVATE ATTORNEY GENERAL ACTIONS ARE PROHIBITED (UNLESS RESTRICTED BY APPLICABLE LAW). Notwithstanding any other provision of these Terms, disputes regarding the interpretation, applicability or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ministry Brands is entitled to arbitration; instead all claims and disputes will be resolved in a court as set out in Section 22.Any rights and limitations set forth in this Section 22 may be waived by the party against whom the claim is asserted. Such waiver will not waive or effect any other portion of this Section 22.This Section 22 will survive the termination of these Terms or your account.
- U.S. Service OnlyYou acknowledge, understand and agree that the Services are for use by users in the United States of America, its territories and possessions (the “United States”). You are prohibited from exporting, transferring, permitting or otherwise allowing the use of the Services to any person located outside of the United States or any country other than a country in which Ministry Brands has authorized your use of the Services. Ministry Brands does make any representations or warranties with respect to use of the Services outside the United States, including whether the Services will comply with foreign laws, rules and regulations, including any privacy or data protection laws.
- No Professional AdviceUnless specifically included with the Services, Ministry Brands is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
- Equitable RemediesNothing herein shall prohibit Ministry Brands from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Ministry Brands from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Ministry Brands’ Intellectual Property Rights.
- WaiverNo failure or delay by Ministry Brands in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Contact UsYou may contact Ministry Brands by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SeverabilityIf a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- No Third-Party BeneficiariesExcept as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- Section TitlesSection titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- Governing Law and VenueThese Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- AssignmentYou shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Ministry Brands. Any attempted assignment in violation hereof shall be void and of no force or effect. Ministry Brands may assign its rights and delegate its duties hereunder at any time without your consent.
- Entire Agreement; ModificationThese Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Ministry Brands reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
- HardwareIf you elect to purchase any hardware, such as check scanners or card scanners, such hardware shall be purchased at the price indicated on the Order Form. All hardware will be shipped F.O.B origin. You will be responsible for all delivery costs, which shall be reflected on your invoice. Your payment of delivery costs shall be due and payable within thirty (30) days of your receipt of an invoice.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL HARDWARE IS PROVIDED “AS-IS,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.
- Sanctions and Export ComplianceYou are solely responsible for ensuring that your use of the Services is in compliance with all applicable sanctions and export control laws and that your Authorized Users understand and acknowledge their responsibility to use the Services in compliance with all applicable sanctions and export control laws. You certify that you and your Authorized Users, or any party that owns or controls you or your Authorized Users are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to comprehensive economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity listed on or covered by the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other applicable sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) the target or subject of any trade or economic sanctions or export control restrictions by European Union, the United Kingdom or the United States. You also certify that you and your Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available the Services, to any person described in (i) through (iii) or in violation of, or for any purpose prohibited by, any applicable sanctions and export control laws, including for proliferation-related end uses. You agree that Ministry Brands has no obligation to provide the Services where Ministry Brands believes the provision of the Services could violate any sanctions and export control laws.
Effective February 28th 2023 to March 24th 2023
DownloadTable of Contents
Welcome to Ministry Brands! These Terms of Service (these “Terms”) describe your rights and responsibilities as a customer or user of our products and services, including our hosted services, software and content delivered to you (collectively, our “Services”). These Terms form a legally binding contract between you and Ministry Brands Holdings, LLC (“MBH”) on behalf of itself and its subsidiaries (“Ministry Brands”) so please read them carefully.
- Overview
These Terms apply to your use of the Ministry Brands’ Services for which you have (i) registered online, (ii) registered online for a free trial period, or (iii) entered into an Order Form with Ministry Brands. The Services may include mobile or tablet application versions that are available to be downloaded or accessed by you.
These Terms shall also apply to and govern the use of our Services by your employees or any agents, contractors, affiliated churches and their users, congregants, parishioners, or other persons to whom you provide access to the Services (“Authorized Users”). You shall be liable for any Authorized User’s violation of these Terms.
If you have entered into an Order Form with Ministry Brands for the Services, and there is a conflict between the Order Form and these Terms, the terms of the Order Form shall control. An “Order Form” means an addendum addressing the acquisition of a specific set of services executed by authorized representatives of you and Ministry Brands. References to the Order Form include any attachments to the Order Form.
Additional terms and conditions listed on the Ministry Brands Legal Center page or that are otherwise made available to you may apply to specific Services. If you use those Services, then those additional terms become part of these Terms. If any of the applicable additional terms conflict with these Terms, such additional terms will prevail while you are using the Services to which they apply.
Please carefully review our Privacy Policy before submitting any Personal Data through the Services.
MINISTRY BRANDS MAY UPDATE OR MODIFY THESE TERMS AT ANY TIME BY POSTING THE AMENDED VERSION ON OUR WEBSITE. BY CONTINUING TO USE OUR SERVICES YOU ACCEPT ANY REVISED TERMS. - Your AccountTo use certain Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. Ministry Brands may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from Ministry Brands and its partners at the email address and/or phone number you provide. You agree to provide Ministry Brands with your current, valid contact information and to update your email address and phone number any time this information changes.In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify Ministry Brands if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Ministry Brands will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials.Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Grant of Rights to YouSubject to your compliance with these Terms, Ministry Brands hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Services solely as expressly authorized by Ministry Brands under these Terms and any applicable product specific terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Services and maintain an account may provide access to the Services to Authorized Users.
- Your ResponsibilitiesYou shall obtain all consents, permissions, and authorizations required under applicable law from Authorized Users and other individual end users as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Services, including, without limitation, any personally identifiable information (“Personal Data”). You understand that all online and cloud based services require internet access and you shall be solely responsible for your systems through which the Services are accessed. You agree to notify Ministry Brands in writing immediately if your authorized administrator has been replaced. Such notification shall be in writing on your letterhead and signed by either an authorized officer or your lead pastor or priest, as applicable.
- Service UpdatesFor Services comprised of software or software-as-a-service, which may include our church management and giving solutions, Ministry Brands may from time to time update, upgrade, replace, and/or modify such Services and/or provide a new release(s), or patches or fixes to such Services, as Ministry Brands, in its sole discretion, deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to such Services will be considered part of such Services and subject to these Terms as they may be amended from time to time. Ministry Brands shall have the right to migrate your account to a successor or alternative platform or technology that replaces existing Services from time to time as Ministry Brands evolves its products and technologies and your use of such successor Services shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you).
- Mobile ApplicationsWe may offer mobile application versions of certain Services (each, an “App”) directly or through third-party stores. Subject to your compliance with these Terms, Ministry Brands grants you a limited, non-exclusive, non-transferable, revocable license to download and use the Apps. We may update Apps from time to time to add new features and/or correct bugs. You shall ensure that you are using the most recent version of the App that is compatible with your device. We cannot guarantee that you will be able to use the most recent version of an App on your device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for using the Apps. You agree that you are solely responsible for any applicable charges. Any third-party open source software included in an App is subject to the applicable open source license and may be available directly from the creator under an open source license. These Terms do not apply to your use of software obtained from a third-party source under an open source license.The following additional terms apply to you if you download an App through the Apple Store:
- These Terms are between you and Ministry Brands, but not Apple, Inc. (“Apple”). Ministry Brands, not Apple, offers the App to you, and Apple has no responsibility to you for any use of, or information related to, the App, and these Terms.
- You may only use the App on an Apple device that you own or control and as permitted by the App Store’s terms of service.
- Apple has no obligation to provide maintenance and support services with respect to the App, as used on your iPhone, iPad, or iPod Touch devices. If an App fails to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the App through the Apple Store, if applicable. Apple has no other warranty obligation with respect to the App.
- Should you have any claim, whether you claim directly or whether a third-party claim has been filed against you, relating to your use of the App, Apple shall have no responsibility to you.
- You and Ministry Brands hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce these Terms against you.
The following additional terms apply to you if you download an App through Google Play: - These Terms are applicable between you and Ministry Brands, but not Google, Inc. (“Google”). Ministry Brands, not Google, offers the App to you, and Google has no responsibility to you for any use of, or information related to, the App and these Terms. Google shall not be responsible to you for maintenance of the App.
- Google shall not be responsible to you for any complaints you have regarding the App, as used on your Android device.
- CommunicationsBy enabling push notifications through a Service, you consent and give permission to receive such notifications from Ministry Brands and its partners. You may manage your notification settings by updating your profile on the applicable Service or updating your phone settings. You understand that consent is not a condition of purchase. You understand that Ministry Brands deploys a variety of communication means to notify you of updates, modifications, changes, etc. including without limitation application cues, chat post messaging, and invoice messaging and agree to promptly read such communications.
- Third Party Applications
If Ministry Brands provides any integration or interfaces between a Service and any third party products and/or services with functionality that interoperates with Service or other content or data on the Service (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Ministry Brands to integrate with such Third Party-Applications, and to use and store in the Platform any and all data received from or through such Third Party-Applications. Ministry Brands and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Ministry Brands cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with a Service in a manner acceptable to Ministry Brands. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use a Service. For example, if you turn on our YouTube integration, you are agreeing to the YouTube Terms of Service (www.youtube.com/t/terms). You will indemnify Ministry Brands and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Ministry Brands or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Personal Data). - Third Party MaterialsThe Services may display, include, or make available third-party content or provide links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that Ministry Brands and its affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ministry Brands and its affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience, and you acknowledge and agree that you access and use such Third-Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
- Professional Services
We may provide certain professional services to you as indicated in your Order Form or if you have purchased them online (“Professional Services”). Professional Services are provided on an “as is” basis and are subject to our Professional Services Addendum. - FeesYou must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Our fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. Fees are non-cancellable and non-refundable.Ministry Brands may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription or any variable, transaction or usage fees, or institute new charges or fees. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30 days’ notice. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next monthly term after the 30 days’ notice. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using the applicable Service prior to the commencement of the renewal subscription period for which the price change applies.If you are subscribing to a subscription that automatically renews and you are paying via credit card, or a Service that does not automatically renew but for which you have agreed to keep your credit card on file with us, you authorize Ministry Brands to charge the applicable subscription and other transaction or usage fees at the then applicable rate plus any applicable taxes for the subscription to your credit card on file at the expiration of the term. Your subscription may only be cancelled as set out in Section 20. Ministry Brands may suspend your access to the Services without prior notice if Ministry Brands is unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.If you are not paying via a credit card, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. Invoicing shall occur on a monthly, annual or multi-year basis depending on whether a monthly, annual or multi-year plan is selected when you first contract to receive Services. In addition, without limiting its other rights, if any fees are owed and not paid by you when due, Ministry Brands may suspend your access to the Service(s) without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.
Any payment not received from you by the payment due date will accrue simple interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee. If you cancel your subscription or at the expiration of a free trial period, any text, logos, images, photos, videos and/or other materials that you have entered into or created within the Service or posted or uploaded during your subscription (“Content”) will no longer be available to you. To be very clear, if you cancel any applicable Services, unless required by law, you will not be able to access or retrieve any of the Content and data you added, uploaded, or created during the time you subscribed to those Services.You shall pay or reimburse Ministry Brands for all taxes arising out of these Terms other than Ministry Brands’ income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Ministry Brands by the amount of such taxes so that Ministry Brands receives the full amount of Fees and expenses. If Ministry Brands has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Ministry Brands with a valid tax exemption certificate authorized by the appropriate taxing authority. Ministry Brands’ failure to initially invoice you for any applicable taxes does not relieve you for responsibility for such taxes under these Terms. - Intellectual Property of Ministry BrandsYou recognize that Ministry Brands and its third-party licensors own all rights, title, and interests in and to the Services (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Services), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Ministry Brands, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Ministry Brands, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Ministry Brands does not grant you any rights to the Services and reserves all rights in the Services. You do not acquire any ownership interest in the Services under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Ministry Brands or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.If you propose or provide any ideas, suggestions, enhancements, requests, recommendations or other feedback (“Feedback”) to Ministry Brands, then you assign all rights, title, and interests, including all Intellectual Property Rights, in this Feedback to Ministry Brands by providing it to Ministry Brands.
- Restrictions on UseWith respect to any Services that constitute software or software-as-a-service, you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to such Services in whole or in part, to any third party, or include such Services in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit such Services, including any part, feature, function, or user interface thereof except as expressly permitted by Ministry Brands under these Terms;
- interfere with or disrupt the integrity or performance of such Services or third-party data contained therein;
- attempt to gain unauthorized access to such Services or their related systems or networks;
- access such Services in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode such Services, in whole or in part, nor use any methods to gain access to the source code or infrastructure of such Services, in whole or in part;
- access or use such Services in order to benchmark or compare the performance of such Services, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from such Services, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such Services
- violate any applicable law or regulation in your use of such Services; or
- use such Services in any manner not permitted by these Terms.
- ConfidentialityThe Services contain proprietary and confidential information of Ministry Brands. “Confidential Information” means all information disclosed by Ministry Brands and its affiliates to you, which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information will not include information that as shown by your records: (i) is, or through no fault of yours has become, generally available to the public; (ii) was disclosed to you by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) was independently developed by you without use of Ministry Brands’ Confidential Information. You shall use no less than a reasonable standard of care to safeguard the Confidential Information you receive. You will only use the Confidential Information to exercise your rights and perform your obligations under these Terms or as otherwise required by law.You agree that any breach of Sections 14 and 15 would cause irreparable harm to Ministry Brands, for which remedies at law would be inadequate to compensate Ministry Brands for such harm and damage. Therefore, Ministry Brands shall be entitled to injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it. The foregoing shall be in addition to and shall not limit any other rights or remedies to which Ministry Brands may be entitled, at law or in equity.
- Data ProtectionWith respect to any Personal Data you may input, submit or otherwise provide to Ministry Brands in the course of using the Services, you represent and warrant that (i) all such Personal Data is true, accurate and complete, and does not falsely represent an affiliation with any person or entity, (ii) you have the consent and authorization of the individual to whom the Personal Data relates to provide their Personal Data to Ministry Brands, and (iii) your provision of such Personal Data to Ministry Brands complies with all applicable data protection laws pertaining in any way to the privacy, confidentiality, security, management, disclosure or other processing of Personal Data (including requirements to provide notice(s) regarding the collection and disclosure of the Personal Data and/or to obtain consent to such collection and disclosure).In providing the Services, Ministry Brands will (i) store, process and access Personal Data only to the extent reasonably necessary to provide you the Services and to improve the Services; (ii) implement and maintain commercially reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of Personal Data processed in the course of providing the Services; and (iii) not further use, retain, disclose, sell or share such Personal Data other than as necessary to provide the Services or as permitted by applicable law and set forth in these Terms.You are the sole and exclusive owner of your data. You hereby grant to Ministry Brands a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use your data (including Personal Data) to provide the Services and to create and use Aggregated Data for any purpose, to the extent permitted by applicable law, including for internal purposes, identifying trends within the Ministry Brands’ customer base and developing, providing, maintaining, supporting or improving Ministry Brands’ current and future products and services. For purposes of the foregoing, “Aggregated Data” means data which is based on or derived from your data but that has been aggregated, de-identified and/or anonymized (as may be required by applicable law) such that the Aggregated Data does not designate or identify any specific entity or individual person.
- DisclaimersTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE SERVICES WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE SERVICES (OR ANY SERVER(S) THAT MAKE THE PLATFORM AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE PLATFORM, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS OF THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ComplianceYou represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- Your Indemnification
You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold MBH and its subsidiaries and affiliates, and any of its and their respective directors, officers, employees, agents and volunteers, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates and arising out of or in connection with: (i) you or your Authorized Users’ use of the Services; (ii) your data; (iii) your breach of these Terms; or (iv) any negligence or willful misconduct by or on behalf of you or your Authorized Users.You shall promptly notify Ministry Brands in writing upon discovery of any unauthorized use or infringement of the Services, or Ministry Brands’ Intellectual Property Rights with respect thereto. Ministry Brands shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Ministry Brands brings such an action or proceeding, you shall cooperate and provide full information and reasonable assistance to Ministry Brands and its counsel in connection with any such action or proceeding. - Limitation on LiabilityMINISTRY BRANDS’ AGGREGATE LIABILITY ARISING OUT OF THESE TERMS SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000.00 USD). IN NO EVENT SHALL MBH AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SUPPLIERS, AND ANY OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS BE LIABLE TO YOU FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MINISTRY BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
- Term and TerminationThese Terms will continue in full force and effect until these Terms are terminated as provided herein.Unless otherwise set forth in an Order Form, to the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless canceled beforehand by providing no less than thirty (30) days’ prior written notice with respect to monthly plans and no less than sixty (60) days’ prior written notice with respect to annual or multi-year plans. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. Multi-year plans renew for the same period as the initial multi-year term set forth in an Order Form. You must pay the annual, multi-year or monthly fee (plus any applicable taxes) when each renewal period starts. You may cancel your subscription by e-mailing Ministry Brands at client.relationships@ministrybrands.com indicating your desire to cancel.Ministry Brands may terminate any Services at any time with or without notice. In addition, Ministry Brands shall have the right to discontinue any Service or any successor thereto, or any feature or function thereof with or without notice.These Terms and your access to any Service will terminate immediately and automatically without any notice and without liability if you violate any of these Terms or if Ministry Brands reasonably believes that your or an Authorized User’s access and use of any Service could subject Ministry Brands, its affiliates or any third party to liability.Ministry Brands may immediately suspend your or an Authorized User’s access and use of a Service or one or more portions of a Service if: (i) Ministry Brands believes there is a threat to the functionality, security, integrity, or availability of a Service to you or other customers; (ii) you breach Sections 3, 11,12,13 or 35; (iii) you or any Authorized User is accessing or using the Services to commit an illegal act; or (iv) requested by law enforcement or other government agencies. When reasonably practicable and lawfully permitted, Ministry Brands will provide you with advance notice of such suspension. Ministry Brands will use reasonable efforts to re-establish the affected Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse your payment obligations under these Terms.Upon termination of these Terms with respect to any or all Services: (a) you shall pay to Ministry Brands all fees due through the termination date; and (b) all rights granted with respect to the applicable Services will immediately terminate.Sections of these Terms concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.
- Force MajeureMinistry Brands shall not be deemed in breach of these Terms to the extent that performance of its obligations are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include, without limitation, acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party. If a Force Majeure event occurs, the time for performance shall be extended for a period equal to the duration of the Force Majeure.
- Arbitration, Class Action Waiver, and Jury WaiverPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND MINISTRY BRANDS AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.YOU AND MINISTRY BRANDS AGREE THAT ALL CLAIMS OR DISPUTES (WHETHER CONTRACT, TORT OR OTHERWISE), INCLUDING ALL STATUTORY CLAIMS AND DISPUTES, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other emergent relief. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of this Section 22 shall be decided by the arbitrator, except as expressly provided below with respect to the waivers contained in this Section.The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section 22. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For all claims: (i) any arbitration will proceed in the State of Tennessee; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, you shall not be responsible to pay any case initiation or similar fee unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in these Terms, nor will he, she, or they have authority to award sanctions of any type. Any decisions rendered in such arbitration proceedings shall be binding of each of the parties to the arbitration and judgement may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 22 is found invalid or unenforceable, the other parts of this Section 22 shall still apply.YOU AND MINISTRY BRANDS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ministry Brands are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ministry Brands over whether to vacate or enforce an arbitration award, YOU AND MINISTRY BRANDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. PRIVATE ATTORNEY GENERAL ACTIONS ARE PROHIBITED (UNLESS RESTRICTED BY APPLICABLE LAW). Notwithstanding any other provision of these Terms, disputes regarding the interpretation, applicability or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ministry Brands is entitled to arbitration; instead all claims and disputes will be resolved in a court as set out in Section 22.Any rights and limitations set forth in this Section 22 may be waived by the party against whom the claim is asserted. Such waiver will not waive or effect any other portion of this Section 22.This Section 22 will survive the termination of these Terms or your account.
- U.S. Service OnlyYou acknowledge, understand and agree that the Services are for use by users in the United States of America, its territories and possessions (the “United States”). You are prohibited from exporting, transferring, permitting or otherwise allowing the use of the Services to any person located outside of the United States or any country other than a country in which Ministry Brands has authorized your use of the Services. Ministry Brands does make any representations or warranties with respect to use of the Services outside the United States, including whether the Services will comply with foreign laws, rules and regulations, including any privacy or data protection laws.
- No Professional AdviceUnless specifically included with the Services, Ministry Brands is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
- Equitable RemediesNothing herein shall prohibit Ministry Brands from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Ministry Brands from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Ministry Brands’ Intellectual Property Rights.
- WaiverNo failure or delay by Ministry Brands in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Contact UsYou may contact Ministry Brands by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SeverabilityIf a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- No Third-Party BeneficiariesExcept as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- Section TitlesSection titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- Governing Law and VenueThese Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- AssignmentYou shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Ministry Brands. Any attempted assignment in violation hereof shall be void and of no force or effect. Ministry Brands may assign its rights and delegate its duties hereunder at any time without your consent.
- Entire Agreement; ModificationThese Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Ministry Brands reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
- HardwareIf you elect to purchase any hardware, such as check scanners or card scanners, such hardware shall be purchased at the price indicated on the Order Form. All hardware will be shipped F.O.B origin. You will be responsible for all delivery costs, which shall be reflected on your invoice. Your payment of delivery costs shall be due and payable within thirty (30) days of your receipt of an invoice.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL HARDWARE IS PROVIDED “AS-IS,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.
- Sanctions and Export ComplianceYou are solely responsible for ensuring that your use of the Services is in compliance with all applicable sanctions and export control laws and that your Authorized Users understand and acknowledge their responsibility to use the Services in compliance with all applicable sanctions and export control laws. You certify that you and your Authorized Users, or any party that owns or controls you or your Authorized Users are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to comprehensive economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity listed on or covered by the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other applicable sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) the target or subject of any trade or economic sanctions or export control restrictions by European Union, the United Kingdom or the United States. You also certify that you and your Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available the Services, to any person described in (i) through (iii) or in violation of, or for any purpose prohibited by, any applicable sanctions and export control laws, including for proliferation-related end uses. You agree that Ministry Brands has no obligation to provide the Services where Ministry Brands believes the provision of the Services could violate any sanctions and export control laws.
Effective January 30th 2023 to February 28th 2023
DownloadTable of Contents
Welcome to Ministry Brands! These Terms of Service (these “Terms”) describe your rights and responsibilities as a customer or user of our products and services, including our hosted services, software and content delivered to you (collectively, our “Services”). These Terms form a legally binding contract between you and Ministry Brands Holdings, LLC (“MBH”) on behalf of itself and its subsidiaries (“Ministry Brands”) so please read them carefully.
- Overview
These Terms apply to your use of the Ministry Brands’ Services for which you have (i) registered online, (ii) registered online for a free trial period, or (iii) entered into an Order Form with Ministry Brands. The Services may include mobile or tablet application versions that are available to be downloaded or accessed by you.
These Terms shall also apply to and govern the use of our Services by your employees or any agents, contractors, affiliated churches and their users, congregants, parishioners, or other persons to whom you provide access to the Services (“Authorized Users”). You shall be liable for any Authorized User’s violation of these Terms.
If you have entered into an Order Form with Ministry Brands for the Services, and there is a conflict between the Order Form and these Terms, the terms of the Order Form shall control. An “Order Form” means an addendum addressing the acquisition of a specific set of services executed by authorized representatives of you and Ministry Brands. References to the Order Form include any attachments to the Order Form.
Additional terms and conditions listed on the Ministry Brands Legal Center page or that are otherwise made available to you may apply to specific Services. If you use those Services, then those additional terms become part of these Terms. If any of the applicable additional terms conflict with these Terms, such additional terms will prevail while you are using the Services to which they apply.
Please carefully review our Privacy Policy before submitting any Personal Data through the Services.
MINISTRY BRANDS MAY UPDATE OR MODIFY THESE TERMS AT ANY TIME BY POSTING THE AMENDED VERSION ON OUR WEBSITE. BY CONTINUING TO USE OUR SERVICES YOU ACCEPT ANY REVISED TERMS. - Your AccountTo use certain Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. Ministry Brands may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from Ministry Brands and its partners at the email address and/or phone number you provide. You agree to provide Ministry Brands with your current, valid contact information and to update your email address and phone number any time this information changes.In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify Ministry Brands if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Ministry Brands will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials.Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Grant of Rights to YouSubject to your compliance with these Terms, Ministry Brands hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Services solely as expressly authorized by Ministry Brands under these Terms and any applicable product specific terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Services and maintain an account may provide access to the Services to Authorized Users.
- Your ResponsibilitiesYou shall obtain all consents, permissions, and authorizations required under applicable law from Authorized Users and other individual end users as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Services, including, without limitation, any personally identifiable information (“Personal Data”). You understand that all online and cloud based services require internet access and you shall be solely responsible for your systems through which the Services are accessed. You agree to notify Ministry Brands in writing immediately if your authorized administrator has been replaced. Such notification shall be in writing on your letterhead and signed by either an authorized officer or your lead pastor or priest, as applicable.
- Service UpdatesFor Services comprised of software or software-as-a-service, which may include our church management and giving solutions, Ministry Brands may from time to time update, upgrade, replace, and/or modify such Services and/or provide a new release(s), or patches or fixes to such Services, as Ministry Brands, in its sole discretion, deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to such Services will be considered part of such Services and subject to these Terms as they may be amended from time to time. Ministry Brands shall have the right to migrate your account to a successor or alternative platform or technology that replaces existing Services from time to time as Ministry Brands evolves its products and technologies and your use of such successor Services shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you).
- Mobile ApplicationsWe may offer mobile application versions of certain Services (each, an “App”) directly or through third-party stores. Subject to your compliance with these Terms, Ministry Brands grants you a limited, non-exclusive, non-transferable, revocable license to download and use the Apps. We may update Apps from time to time to add new features and/or correct bugs. You shall ensure that you are using the most recent version of the App that is compatible with your device. We cannot guarantee that you will be able to use the most recent version of an App on your device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for using the Apps. You agree that you are solely responsible for any applicable charges. Any third-party open source software included in an App is subject to the applicable open source license and may be available directly from the creator under an open source license. These Terms do not apply to your use of software obtained from a third-party source under an open source license.The following additional terms apply to you if you download an App through the Apple Store:
- These Terms are between you and Ministry Brands, but not Apple, Inc. (“Apple”). Ministry Brands, not Apple, offers the App to you, and Apple has no responsibility to you for any use of, or information related to, the App, and these Terms.
- You may only use the App on an Apple device that you own or control and as permitted by the App Store’s terms of service.
- Apple has no obligation to provide maintenance and support services with respect to the App, as used on your iPhone, iPad, or iPod Touch devices. If an App fails to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the App through the Apple Store, if applicable. Apple has no other warranty obligation with respect to the App.
- Should you have any claim, whether you claim directly or whether a third-party claim has been filed against you, relating to your use of the App, Apple shall have no responsibility to you.
- You and Ministry Brands hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce these Terms against you.
The following additional terms apply to you if you download an App through Google Play: - These Terms are applicable between you and Ministry Brands, but not Google, Inc. (“Google”). Ministry Brands, not Google, offers the App to you, and Google has no responsibility to you for any use of, or information related to, the App and these Terms. Google shall not be responsible to you for maintenance of the App.
- Google shall not be responsible to you for any complaints you have regarding the App, as used on your Android device.
- CommunicationsBy enabling push notifications through a Service, you consent and give permission to receive such notifications from Ministry Brands and its partners. You may manage your notification settings by updating your profile on the applicable Service or updating your phone settings. You understand that consent is not a condition of purchase. You understand that Ministry Brands deploys a variety of communication means to notify you of updates, modifications, changes, etc. including without limitation application cues, chat post messaging, and invoice messaging and agree to promptly read such communications.
- Third Party Applications
If Ministry Brands provides any integration or interfaces between a Service and any third party products and/or services with functionality that interoperates with Service or other content or data on the Service (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Ministry Brands to integrate with such Third Party-Applications, and to use and store in the Platform any and all data received from or through such Third Party-Applications. Ministry Brands and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Ministry Brands cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with a Service in a manner acceptable to Ministry Brands. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use a Service. For example, if you turn on our YouTube integration, you are agreeing to the YouTube Terms of Service (www.youtube.com/t/terms). You will indemnify Ministry Brands and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Ministry Brands or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Personal Data). - Third Party MaterialsThe Services may display, include, or make available third-party content or provide links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that Ministry Brands and its affiliates are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ministry Brands and its affiliates do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience, and you acknowledge and agree that you access and use such Third-Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
- Professional Services
We may provide certain professional services to you as indicated in your Order Form or if you have purchased them online (“Professional Services”). Professional Services are provided on an “as is” basis and are subject to our Professional Services Addendum. - FeesYou must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Our fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. Fees are non-cancellable and non-refundable.Ministry Brands may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription or any variable, transaction or usage fees, or institute new charges or fees. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30 days’ notice. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next monthly term after the 30 days’ notice. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using the applicable Service prior to the commencement of the renewal subscription period for which the price change applies.If you are subscribing to a subscription that automatically renews and you are paying via credit card, or a Service that does not automatically renew but for which you have agreed to keep your credit card on file with us, you authorize Ministry Brands to charge the applicable subscription and other transaction or usage fees at the then applicable rate plus any applicable taxes for the subscription to your credit card on file at the expiration of the term. Your subscription may only be cancelled as set out in Section 20. Ministry Brands may suspend your access to the Services without prior notice if Ministry Brands is unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.If you are not paying via a credit card, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. Invoicing shall occur on a monthly, annual or multi-year basis depending on whether a monthly, annual or multi-year plan is selected when you first contract to receive Services. Any payment not received from you by the payment due date will accrue simple interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, without limiting its other rights, if any fees are owed and not paid by you when due, Ministry Brands may suspend your access to the Service(s) without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, Ministry Brands may terminate these Terms and your access to the Services.We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee. If you cancel your subscription or at the expiration of a free trial period, any text, logos, images, photos, videos and/or other materials that you have entered into or created within the Service or posted or uploaded during your subscription (“Content”) will no longer be available to you. To be very clear, if you cancel any applicable Services, unless required by law, you will not be able to access or retrieve any of the Content and data you added, uploaded, or created during the time you subscribed to those Services.You shall pay or reimburse Ministry Brands for all taxes arising out of these Terms other than Ministry Brands’ income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Ministry Brands by the amount of such taxes so that Ministry Brands receives the full amount of Fees and expenses. If Ministry Brands has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Ministry Brands with a valid tax exemption certificate authorized by the appropriate taxing authority. Ministry Brands’ failure to initially invoice you for any applicable taxes does not relieve you for responsibility for such taxes under these Terms.
- Intellectual Property of Ministry BrandsYou recognize that Ministry Brands and its third-party licensors own all rights, title, and interests in and to the Services (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Services), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Ministry Brands, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Ministry Brands, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Ministry Brands does not grant you any rights to the Services and reserves all rights in the Services. You do not acquire any ownership interest in the Services under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Ministry Brands or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.If you propose or provide any ideas, suggestions, enhancements, requests, recommendations or other feedback (“Feedback”) to Ministry Brands, then you assign all rights, title, and interests, including all Intellectual Property Rights, in this Feedback to Ministry Brands by providing it to Ministry Brands.
- Restrictions on UseWith respect to any Services that constitute software or software-as-a-service, you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to such Services in whole or in part, to any third party, or include such Services in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit such Services, including any part, feature, function, or user interface thereof except as expressly permitted by Ministry Brands under these Terms;
- interfere with or disrupt the integrity or performance of such Services or third-party data contained therein;
- attempt to gain unauthorized access to such Services or their related systems or networks;
- access such Services in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode such Services, in whole or in part, nor use any methods to gain access to the source code or infrastructure of such Services, in whole or in part;
- access or use such Services in order to benchmark or compare the performance of such Services, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from such Services, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such Services
- violate any applicable law or regulation in your use of such Services; or
- use such Services in any manner not permitted by these Terms.
- ConfidentialityThe Services contain proprietary and confidential information of Ministry Brands. “Confidential Information” means all information disclosed by Ministry Brands and its affiliates to you, which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information will not include information that as shown by your records: (i) is, or through no fault of yours has become, generally available to the public; (ii) was disclosed to you by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) was independently developed by you without use of Ministry Brands’ Confidential Information. You shall use no less than a reasonable standard of care to safeguard the Confidential Information you receive. You will only use the Confidential Information to exercise your rights and perform your obligations under these Terms or as otherwise required by law.You agree that any breach of Sections 14 and 15 would cause irreparable harm to Ministry Brands, for which remedies at law would be inadequate to compensate Ministry Brands for such harm and damage. Therefore, Ministry Brands shall be entitled to injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it. The foregoing shall be in addition to and shall not limit any other rights or remedies to which Ministry Brands may be entitled, at law or in equity.
- Data ProtectionWith respect to any Personal Data you may input, submit or otherwise provide to Ministry Brands in the course of using the Services, you represent and warrant that (i) all such Personal Data is true, accurate and complete, and does not falsely represent an affiliation with any person or entity, (ii) you have the consent and authorization of the individual to whom the Personal Data relates to provide their Personal Data to Ministry Brands, and (iii) your provision of such Personal Data to Ministry Brands complies with all applicable data protection laws pertaining in any way to the privacy, confidentiality, security, management, disclosure or other processing of Personal Data (including requirements to provide notice(s) regarding the collection and disclosure of the Personal Data and/or to obtain consent to such collection and disclosure).In providing the Services, Ministry Brands will (i) store, process and access Personal Data only to the extent reasonably necessary to provide you the Services and to improve the Services; (ii) implement and maintain commercially reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of Personal Data processed in the course of providing the Services; and (iii) not further use, retain, disclose, sell or share such Personal Data other than as necessary to provide the Services or as permitted by applicable law and set forth in these Terms.You are the sole and exclusive owner of your data. You hereby grant to Ministry Brands a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use your data (including Personal Data) to provide the Services and to create and use Aggregated Data for any purpose, to the extent permitted by applicable law, including for internal purposes, identifying trends within the Ministry Brands’ customer base and developing, providing, maintaining, supporting or improving Ministry Brands’ current and future products and services. For purposes of the foregoing, “Aggregated Data” means data which is based on or derived from your data but that has been aggregated, de-identified and/or anonymized (as may be required by applicable law) such that the Aggregated Data does not designate or identify any specific entity or individual person.
- DisclaimersTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE SERVICES WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE SERVICES (OR ANY SERVER(S) THAT MAKE THE PLATFORM AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE PLATFORM, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS OF THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ComplianceYou represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- Your Indemnification
You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold MBH and its subsidiaries and affiliates, and any of its and their respective directors, officers, employees, agents and volunteers, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates and arising out of or in connection with: (i) you or your Authorized Users’ use of the Services; (ii) your data; (iii) your breach of these Terms; or (iv) any negligence or willful misconduct by or on behalf of you or your Authorized Users.You shall promptly notify Ministry Brands in writing upon discovery of any unauthorized use or infringement of the Services, or Ministry Brands’ Intellectual Property Rights with respect thereto. Ministry Brands shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Ministry Brands brings such an action or proceeding, you shall cooperate and provide full information and reasonable assistance to Ministry Brands and its counsel in connection with any such action or proceeding. - Limitation on LiabilityMINISTRY BRANDS’ AGGREGATE LIABILITY ARISING OUT OF THESE TERMS SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000.00 USD). IN NO EVENT SHALL MBH AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SUPPLIERS, AND ANY OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS BE LIABLE TO YOU FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MINISTRY BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
- Term and TerminationThese Terms will continue in full force and effect until these Terms are terminated as provided herein.Unless otherwise set forth in an Order Form, to the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless canceled beforehand by providing no less than thirty (30) days’ prior written notice with respect to monthly plans and no less than sixty (60) days’ prior written notice with respect to annual or multi-year plans. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. Multi-year plans renew for the same period as the initial multi-year term set forth in an Order Form. You must pay the annual, multi-year or monthly fee (plus any applicable taxes) when each renewal period starts. You may cancel your subscription by e-mailing Ministry Brands at client.relationships@ministrybrands.com indicating your desire to cancel.Ministry Brands may terminate any Services at any time with or without notice. In addition, Ministry Brands shall have the right to discontinue any Service or any successor thereto, or any feature or function thereof with or without notice.These Terms and your access to any Service will terminate immediately and automatically without any notice and without liability if you violate any of these Terms or if Ministry Brands reasonably believes that your or an Authorized User’s access and use of any Service could subject Ministry Brands, its affiliates or any third party to liability.Ministry Brands may immediately suspend your or an Authorized User’s access and use of a Service or one or more portions of a Service if: (i) Ministry Brands believes there is a threat to the functionality, security, integrity, or availability of a Service to you or other customers; (ii) you breach Sections 3, 11,12,13 or 35; (iii) you or any Authorized User is accessing or using the Services to commit an illegal act; or (iv) requested by law enforcement or other government agencies. When reasonably practicable and lawfully permitted, Ministry Brands will provide you with advance notice of such suspension. Ministry Brands will use reasonable efforts to re-establish the affected Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse your payment obligations under these Terms.Upon termination of these Terms with respect to any or all Services: (a) you shall pay to Ministry Brands all fees due through the termination date; and (b) all rights granted with respect to the applicable Services will immediately terminate.Sections of these Terms concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.
- Force MajeureMinistry Brands shall not be deemed in breach of these Terms to the extent that performance of its obligations are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include, without limitation, acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party. If a Force Majeure event occurs, the time for performance shall be extended for a period equal to the duration of the Force Majeure.
- Arbitration, Class Action Waiver, and Jury WaiverPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND MINISTRY BRANDS AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.YOU AND MINISTRY BRANDS AGREE THAT ALL CLAIMS OR DISPUTES (WHETHER CONTRACT, TORT OR OTHERWISE), INCLUDING ALL STATUTORY CLAIMS AND DISPUTES, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN IN COURT. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other emergent relief. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of this Section 22 shall be decided by the arbitrator, except as expressly provided below with respect to the waivers contained in this Section.The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section 22. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For all claims: (i) any arbitration will proceed in the State of Tennessee; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, you shall not be responsible to pay any case initiation or similar fee unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in these Terms, nor will he, she, or they have authority to award sanctions of any type. Any decisions rendered in such arbitration proceedings shall be binding of each of the parties to the arbitration and judgement may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 22 is found invalid or unenforceable, the other parts of this Section 22 shall still apply.YOU AND MINISTRY BRANDS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Ministry Brands are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Ministry Brands over whether to vacate or enforce an arbitration award, YOU AND MINISTRY BRANDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. PRIVATE ATTORNEY GENERAL ACTIONS ARE PROHIBITED (UNLESS RESTRICTED BY APPLICABLE LAW). Notwithstanding any other provision of these Terms, disputes regarding the interpretation, applicability or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Ministry Brands is entitled to arbitration; instead all claims and disputes will be resolved in a court as set out in Section 22.Any rights and limitations set forth in this Section 22 may be waived by the party against whom the claim is asserted. Such waiver will not waive or effect any other portion of this Section 22.This Section 22 will survive the termination of these Terms or your account.
- U.S. Service OnlyYou acknowledge, understand and agree that the Services are for use by users in the United States of America, its territories and possessions (the “United States”). You are prohibited from exporting, transferring, permitting or otherwise allowing the use of the Services to any person located outside of the United States or any country other than a country in which Ministry Brands has authorized your use of the Services. Ministry Brands does make any representations or warranties with respect to use of the Services outside the United States, including whether the Services will comply with foreign laws, rules and regulations, including any privacy or data protection laws.
- No Professional AdviceUnless specifically included with the Services, Ministry Brands is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
- Equitable RemediesNothing herein shall prohibit Ministry Brands from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Ministry Brands from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Ministry Brands’ Intellectual Property Rights.
- WaiverNo failure or delay by Ministry Brands in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Contact UsYou may contact Ministry Brands by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SeverabilityIf a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- No Third-Party BeneficiariesExcept as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- Section TitlesSection titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- Governing Law and VenueThese Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- AssignmentYou shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Ministry Brands. Any attempted assignment in violation hereof shall be void and of no force or effect. Ministry Brands may assign its rights and delegate its duties hereunder at any time without your consent.
- Entire Agreement; ModificationThese Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Ministry Brands reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
- HardwareIf you elect to purchase any hardware, such as check scanners or card scanners, such hardware shall be purchased at the price indicated on the Order Form. All hardware will be shipped F.O.B origin. You will be responsible for all delivery costs, which shall be reflected on your invoice. Your payment of delivery costs shall be due and payable within thirty (30) days of your receipt of an invoice.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL HARDWARE IS PROVIDED “AS-IS,” AND “WITH ALL FAULTS”. MINISTRY BRANDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.
- Sanctions and Export ComplianceYou are solely responsible for ensuring that your use of the Services is in compliance with all applicable sanctions and export control laws and that your Authorized Users understand and acknowledge their responsibility to use the Services in compliance with all applicable sanctions and export control laws. You certify that you and your Authorized Users, or any party that owns or controls you or your Authorized Users are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to comprehensive economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity listed on or covered by the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other applicable sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) the target or subject of any trade or economic sanctions or export control restrictions by European Union, the United Kingdom or the United States. You also certify that you and your Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available the Services, to any person described in (i) through (iii) or in violation of, or for any purpose prohibited by, any applicable sanctions and export control laws, including for proliferation-related end uses. You agree that Ministry Brands has no obligation to provide the Services where Ministry Brands believes the provision of the Services could violate any sanctions and export control laws.
Product Specific Terms
Effective September 5th 2024
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- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. With respect to Church Management Solutions other than Amplify, You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit. With respect to Amplify Church Management: (i) we will bill you monthly based on record count regardless of whether you are billed annually or monthly for other Services we provide; (ii) you acknowledge and agree that Ministry Brands will determine the number of records in your account on a monthly basis by the last day of your monthly billing cycle; and (iii) if the number of records for a given month exceeds the total number of records included in your subscription, you will be obligated to pay the amount of the excess for such month based on the per record rate then in effect.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to worshipplanning, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Streaming Services must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Streaming Services does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for Streaming Services includes a limited number of hours of streaming and gigabytes of storage. Ministry Brands may charge additional fees for the number of hours streamed and gigabytes stored by you if your usage exceeds the limit.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
App Builder Specific Terms
- Your Responsibilities. You shall be solely responsible for all content appearing in Your App, including without limitation all logos, photography and written content (the “Customer Materials”). You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for Your App to be distributed through the Apple Store and the Google Store (the “App Stores”). The App Stores may require you to obtain your own account in order to publish Your App to the App Stores. You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of Your App or your account application by the App Stores.
- Intellectual Property Ownership. All right, title and interest in and to Your App other than the Customer Materials, and all works, inventions and other subject matter incorporating, based on, or derived from Your App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands or its third party licensors. You have no right or license with respect to Your App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use Your App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with Your App. Your right to use Your App shall terminate upon termination of this Agreement.
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that the Customer Materials violate any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for App Builder includes only one software application. Ministry Brands may charge additional fees for additional software applications created using App Builder.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Communication Services, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services. Notwithstanding the foregoing, you agree that Ministry Brands may use publish and display any website designs or other materials developed as part of the Website Services and that incorporate Your Content for Ministry Brands' own marketing or promotional purposes.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Fees. With respect to Website Services offered under the Amplify brand, standard pricing set forth on your Order Form includes only one website. Should you add additional websites, you shall be charged an additional monthly fee with respect to each additional website.
- Any website we develop for you as part of the Website of Services shall display the “Powered by Ministry Brands” logo. You may not remove, distort or modify any element of the Powered by Ministry Brands logo.
- Types of Licenses We Offer. You can license Content under our Amplify or Sharefaith brands (the “Media Content”) with a monthly or annual subscription or we may license content on a download basis or free for a period of time. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Media Content. Subject to the terms of the Agreement, if you are purchasing a license, or are offered a free license, to Media Content, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Media Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Media Content into your own original work to create a derivative work (“Media Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Media Content Derivative Work for your personal and non-commercial purposes only. The Media Content includes any Media Content Derivative Work. Immediately upon creation of any Media Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Media Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Media Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Content to Ministry Brands. All rights in the Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to Sharefaith, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- License Grant. DD grants to you a non-exclusive, non-transferable, non-sublicensable, limited perpetual license to install and use the DonorDirect Products and/or the Developed Software set forth in an Order Form and/or a Statement of Work (the “Licensed Products”) for your own business purposes in accordance with these terms and the Agreement.
- Development Services. Any customization or modifications desired by you in connection with the development of Developed Software shall be set forth in a Statement of Work (“SOW”). Such development work may be performed at both your premises and on site at DD’s offices. You shall assign to DD a point of contact who shall have the authority to make decisions with respect to the development work. You shall notify DD of all reasonable workplace standards and policies while DD personnel are physically located at your premises. DD may subcontract the performance of any development work.
- Fees. Fees shall be due and payable as set forth in the Order Form.
- Intellectual Property Rights. All right, title and interest in and to the Licensed Software, including without limitation the Developed Software, shall be owned by DD, its affiliates, or its third party licensors. You shall notify DD immediately of any unauthorized possession, use or knowledge of the Licensed Products. You shall promptly furnish DD with full details of such situation, cooperate in preventing any recurrence thereof and in any litigation or other proceedings reasonably necessary to protect the rights of DD. THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS AND ANY DEVELOPED SOFTWARE OR COMPLEMENTARY PRODUCTS. The function of the software protection procedures is documented in the documentation associated with the Licensed Products. If the software protection procedures have been enabled when there is no unauthorized use by you, DD will, on a high priority basis, assist you in returning to normal operations at no additional charge.
- System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Licensed Products as specified in the Licensed Product documentation. DD will have no obligations or responsibility under the Agreement or these terms for issues caused by your use of any third-party hardware or software that does not meet the system requirements for the Licensed Products.
- Conformity with Product Specifications. You shall have twelve (12) months following the date of installation of the Licensed Products to notify DD in writing that the Licensed Products do not conform in all material respects with DD’s published product specifications or the scope document (solely with respect to Developed Software). Such written notice shall be in sufficient detail to allow DD to duplicate the non-conformance. DD shall, at no additional charge, correct such nonconformance or provide a plan for correction within thirty (30) days after receipt of your written notice. Should DD fail to provide such correction or plan by such date, your sole and exclusive remedy shall be to terminate this Agreement by written notice to DD and you shall be entitled to receive a refund of any license fees paid with respect to the Licensed Products.
- Support Service Level Agreement. Support services will be provided to you for an initial term of twelve (12) months (the “Initial Services Term”). The Initial Services Term shall automatically renew for a term of twelve (12) months (each, a “Services Renewal Term”), unless either party provide written notice not to renew no later than thirty (30) days prior to the expiration of the Initial Services Term or the then current Services Renewal Term. Fees for support services during each Services Renewal Term shall be at the then current rates. DD or one of its affiliates will provide you telephone and email support services on business days during normal business hours, Monday through Friday (other than holidays) from 8 am to 6 pm Central time. If you have purchased enhanced support services, you will be provided with a dedicated telephone line. On-site or afterhours support may only be provided pursuant to a mutually agreed upon SOW, and you must reimburse DD for any travel expenses that it incurs at your request.
- Response Time to Critical Issues. DD will respond to any critical issue with the Licensed Products within 30 minutes. A “critical issue” occurs when a Licensed Product is non-operational in production and is completely unable to service your requests. DD will assign resources to critical issues until their resolution.
- Response Time to Non-Critical Issues. DD will respond to any non-critical issue with the Licensed Products within 24 hours. A “non-critical issue” occurs when a Licensed Product is functioning but is degraded or impaired and assistance or further information is required.
- Hosted Support Service Level Agreement. If you have licensed a Licensed Product that is hosted by DD or one of its third party cloud hosting partners and have purchased support with guaranteed uptime, then in addition to the Service Level Agreement set forth in Section 4, DD will make the hosted service available 99.9% of the time in a given month (“Service Level Objective”). If DD fails to meet the Service Level Objective in a given month, affected customers will be eligible to receive a credit to their account to be applied against further Support Services. You must notify DD within thirty (30) days of DD’s failure to meet the Service Level Objective in order to receive the credit or your right to receive it is forfeited. Credit will be granted as follows:
Monthly System Availability | Monthly Service Credit Provided |
99.1%-99.8% | 10% |
95%-99% | 15% |
<95%< div> | 50% |
- Implementation Services. Implementation, training, and data migration services will be provided to you pursuant to our Professional Services Addendum.
- Product Updates. DD may develop and provide Updates in its sole discretion. DD has no obligation to develop any Updates at all or for particular issues. You shall be responsible for the installation of any Update. Any Updates shall become part of the Licensed Products. “Update” means updates, enhancements, bug fixes, patches, and other error corrections that DD makes available free of charge to all customers then entitled to Support Services as described herein. DD may determine in its sole discretion whether any issuance qualifies as a new version, new release, or update. DD or its third-party licensors shall own all right, title and interest in and to any Updates.
Effective June 15th 2023 to September 5th 2024
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- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. With respect to Church Management Solutions other than Amplify, You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit. With respect to Amplify Church Management: (i) we will bill you monthly based on record count regardless of whether you are billed annually or monthly for other Services we provide; (ii) you acknowledge and agree that Ministry Brands will determine the number of records in your account on a monthly basis by the last day of your monthly billing cycle; and (iii) if the number of records for a given month exceeds the total number of records included in your subscription, you will be obligated to pay the amount of the excess for such month based on the per record rate then in effect.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to worshipplanning, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Streaming Services must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Streaming Services does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for Streaming Services includes a limited number of hours of streaming and gigabytes of storage. Ministry Brands may charge additional fees for the number of hours streamed and gigabytes stored by you if your usage exceeds the limit.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
App Builder Specific Terms
- Your Responsibilities. You shall be solely responsible for all content appearing in Your App, including without limitation all logos, photography and written content (the “Customer Materials”). You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for Your App to be distributed through the Apple Store and the Google Store (the “App Stores”). The App Stores may require you to obtain your own account in order to publish Your App to the App Stores. You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of Your App or your account application by the App Stores.
- Intellectual Property Ownership. All right, title and interest in and to Your App other than the Customer Materials, and all works, inventions and other subject matter incorporating, based on, or derived from Your App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands or its third party licensors. You have no right or license with respect to Your App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use Your App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with Your App. Your right to use Your App shall terminate upon termination of this Agreement.
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that the Customer Materials violate any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for App Builder includes only one software application. Ministry Brands may charge additional fees for additional software applications created using App Builder.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Communication Services, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services. Notwithstanding the foregoing, you agree that Ministry Brands may use publish and display any website designs or other materials developed as part of the Website Services and that incorporate Your Content for Ministry Brands' own marketing or promotional purposes.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Fees. With respect to Website Services offered under the Amplify brand, standard pricing set forth on your Order Form includes only one website. Should you add additional websites, you shall be charged an additional monthly fee with respect to each additional website.
- Any website we develop for you as part of the Website of Services shall display the “Powered by Ministry Brands” logo. You may not remove, distort or modify any element of the Powered by Ministry Brands logo.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a monthly or annual subscription or we may license content on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to Sharefaith, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- License Grant. DD grants to you a non-exclusive, non-transferable, non-sublicensable, limited perpetual license to install and use the DonorDirect Products and/or the Developed Software set forth in an Order Form and/or a Statement of Work (the “Licensed Products”) for your own business purposes in accordance with these terms and the Agreement.
- Development Services. Any customization or modifications desired by you in connection with the development of Developed Software shall be set forth in a Statement of Work (“SOW”). Such development work may be performed at both your premises and on site at DD’s offices. You shall assign to DD a point of contact who shall have the authority to make decisions with respect to the development work. You shall notify DD of all reasonable workplace standards and policies while DD personnel are physically located at your premises. DD may subcontract the performance of any development work.
- Fees. Fees shall be due and payable as set forth in the Order Form.
- Intellectual Property Rights. All right, title and interest in and to the Licensed Software, including without limitation the Developed Software, shall be owned by DD, its affiliates, or its third party licensors. You shall notify DD immediately of any unauthorized possession, use or knowledge of the Licensed Products. You shall promptly furnish DD with full details of such situation, cooperate in preventing any recurrence thereof and in any litigation or other proceedings reasonably necessary to protect the rights of DD. THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS AND ANY DEVELOPED SOFTWARE OR COMPLEMENTARY PRODUCTS. The function of the software protection procedures is documented in the documentation associated with the Licensed Products. If the software protection procedures have been enabled when there is no unauthorized use by you, DD will, on a high priority basis, assist you in returning to normal operations at no additional charge.
- System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Licensed Products as specified in the Licensed Product documentation. DD will have no obligations or responsibility under the Agreement or these terms for issues caused by your use of any third-party hardware or software that does not meet the system requirements for the Licensed Products.
- Conformity with Product Specifications. You shall have twelve (12) months following the date of installation of the Licensed Products to notify DD in writing that the Licensed Products do not conform in all material respects with DD’s published product specifications or the scope document (solely with respect to Developed Software). Such written notice shall be in sufficient detail to allow DD to duplicate the non-conformance. DD shall, at no additional charge, correct such nonconformance or provide a plan for correction within thirty (30) days after receipt of your written notice. Should DD fail to provide such correction or plan by such date, your sole and exclusive remedy shall be to terminate this Agreement by written notice to DD and you shall be entitled to receive a refund of any license fees paid with respect to the Licensed Products.
- Support Service Level Agreement. Support services will be provided to you for an initial term of twelve (12) months (the “Initial Services Term”). The Initial Services Term shall automatically renew for a term of twelve (12) months (each, a “Services Renewal Term”), unless either party provide written notice not to renew no later than thirty (30) days prior to the expiration of the Initial Services Term or the then current Services Renewal Term. Fees for support services during each Services Renewal Term shall be at the then current rates. DD or one of its affiliates will provide you telephone and email support services on business days during normal business hours, Monday through Friday (other than holidays) from 8 am to 6 pm Central time. If you have purchased enhanced support services, you will be provided with a dedicated telephone line. On-site or afterhours support may only be provided pursuant to a mutually agreed upon SOW, and you must reimburse DD for any travel expenses that it incurs at your request.
- Response Time to Critical Issues. DD will respond to any critical issue with the Licensed Products within 30 minutes. A “critical issue” occurs when a Licensed Product is non-operational in production and is completely unable to service your requests. DD will assign resources to critical issues until their resolution.
- Response Time to Non-Critical Issues. DD will respond to any non-critical issue with the Licensed Products within 24 hours. A “non-critical issue” occurs when a Licensed Product is functioning but is degraded or impaired and assistance or further information is required.
- Hosted Support Service Level Agreement. If you have licensed a Licensed Product that is hosted by DD or one of its third party cloud hosting partners and have purchased support with guaranteed uptime, then in addition to the Service Level Agreement set forth in Section 4, DD will make the hosted service available 99.9% of the time in a given month (“Service Level Objective”). If DD fails to meet the Service Level Objective in a given month, affected customers will be eligible to receive a credit to their account to be applied against further Support Services. You must notify DD within thirty (30) days of DD’s failure to meet the Service Level Objective in order to receive the credit or your right to receive it is forfeited. Credit will be granted as follows:
Monthly System Availability | Monthly Service Credit Provided |
99.1%-99.8% | 10% |
95%-99% | 15% |
<95%< div> 95%<> | 50% |
- Implementation Services. Implementation, training, and data migration services will be provided to you pursuant to our Professional Services Addendum.
- Product Updates. DD may develop and provide Updates in its sole discretion. DD has no obligation to develop any Updates at all or for particular issues. You shall be responsible for the installation of any Update. Any Updates shall become part of the Licensed Products. “Update” means updates, enhancements, bug fixes, patches, and other error corrections that DD makes available free of charge to all customers then entitled to Support Services as described herein. DD may determine in its sole discretion whether any issuance qualifies as a new version, new release, or update. DD or its third-party licensors shall own all right, title and interest in and to any Updates.
Effective May 19th 2023 to June 15th 2023
DownloadTable of Contents
- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. With respect to Church Management Solutions other than Amplify, You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit. With respect to Amplify Church Management, You acknowledge and agree that Ministry Brands will determine the number of records in your account on a monthly basis by the last day of each month. To the extent that the number of records exceeds the total number of records included in your subscription, you will be billed for the amount of the excess based on the per record rate then in effect.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to worshipplanning, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Streaming Services must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Streaming Services does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for Streaming Services includes a limited number of hours of streaming and gigabytes of storage. Ministry Brands may charge additional fees for the number of hours streamed and gigabytes stored by you if your usage exceeds the limit.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
App Builder Specific Terms
- Your Responsibilities. You shall be solely responsible for all content appearing in Your App, including without limitation all logos, photography and written content (the “Customer Materials”). You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for Your App to be distributed through the Apple Store and the Google Store (the “App Stores”). The App Stores may require you to obtain your own account in order to publish Your App to the App Stores. You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of Your App or your account application by the App Stores.
- Intellectual Property Ownership. All right, title and interest in and to Your App other than the Customer Materials, and all works, inventions and other subject matter incorporating, based on, or derived from Your App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands or its third party licensors. You have no right or license with respect to Your App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use Your App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with Your App. Your right to use Your App shall terminate upon termination of this Agreement.
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that the Customer Materials violate any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for App Builder includes only one software application. Ministry Brands may charge additional fees for additional software applications created using App Builder.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Communication Services, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services. Notwithstanding the foregoing, you agree that Ministry Brands may use publish and display any website designs or other materials developed as part of the Website Services and that incorporate Your Content for Ministry Brands' own marketing or promotional purposes.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Fees. With respect to Website Services offered under the Amplify brand, standard pricing set forth on your Order Form includes only one website. Should you add additional websites, you shall be charged an additional monthly fee with respect to each additional website.
- Any website we develop for you as part of the Website of Services shall display the “Powered by Ministry Brands” logo. You may not remove, distort or modify any element of the Powered by Ministry Brands logo.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a monthly or annual subscription or we may license content on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to Sharefaith, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- License Grant. DD grants to you a non-exclusive, non-transferable, non-sublicensable, limited perpetual license to install and use the DonorDirect Products and/or the Developed Software set forth in an Order Form and/or a Statement of Work (the “Licensed Products”) for your own business purposes in accordance with these terms and the Agreement.
- Development Services. Any customization or modifications desired by you in connection with the development of Developed Software shall be set forth in a Statement of Work (“SOW”). Such development work may be performed at both your premises and on site at DD’s offices. You shall assign to DD a point of contact who shall have the authority to make decisions with respect to the development work. You shall notify DD of all reasonable workplace standards and policies while DD personnel are physically located at your premises. DD may subcontract the performance of any development work.
- Fees. Fees shall be due and payable as set forth in the Order Form.
- Intellectual Property Rights. All right, title and interest in and to the Licensed Software, including without limitation the Developed Software, shall be owned by DD, its affiliates, or its third party licensors. You shall notify DD immediately of any unauthorized possession, use or knowledge of the Licensed Products. You shall promptly furnish DD with full details of such situation, cooperate in preventing any recurrence thereof and in any litigation or other proceedings reasonably necessary to protect the rights of DD. THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS AND ANY DEVELOPED SOFTWARE OR COMPLEMENTARY PRODUCTS. The function of the software protection procedures is documented in the documentation associated with the Licensed Products. If the software protection procedures have been enabled when there is no unauthorized use by you, DD will, on a high priority basis, assist you in returning to normal operations at no additional charge.
- System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Licensed Products as specified in the Licensed Product documentation. DD will have no obligations or responsibility under the Agreement or these terms for issues caused by your use of any third-party hardware or software that does not meet the system requirements for the Licensed Products.
- Conformity with Product Specifications. You shall have twelve (12) months following the date of installation of the Licensed Products to notify DD in writing that the Licensed Products do not conform in all material respects with DD’s published product specifications or the scope document (solely with respect to Developed Software). Such written notice shall be in sufficient detail to allow DD to duplicate the non-conformance. DD shall, at no additional charge, correct such nonconformance or provide a plan for correction within thirty (30) days after receipt of your written notice. Should DD fail to provide such correction or plan by such date, your sole and exclusive remedy shall be to terminate this Agreement by written notice to DD and you shall be entitled to receive a refund of any license fees paid with respect to the Licensed Products.
- Support Service Level Agreement. Support services will be provided to you for an initial term of twelve (12) months (the “Initial Services Term”). The Initial Services Term shall automatically renew for a term of twelve (12) months (each, a “Services Renewal Term”), unless either party provide written notice not to renew no later than thirty (30) days prior to the expiration of the Initial Services Term or the then current Services Renewal Term. Fees for support services during each Services Renewal Term shall be at the then current rates. DD or one of its affiliates will provide you telephone and email support services on business days during normal business hours, Monday through Friday (other than holidays) from 8 am to 6 pm Central time. If you have purchased enhanced support services, you will be provided with a dedicated telephone line. On-site or afterhours support may only be provided pursuant to a mutually agreed upon SOW, and you must reimburse DD for any travel expenses that it incurs at your request.
- Response Time to Critical Issues. DD will respond to any critical issue with the Licensed Products within 30 minutes. A “critical issue” occurs when a Licensed Product is non-operational in production and is completely unable to service your requests. DD will assign resources to critical issues until their resolution.
- Response Time to Non-Critical Issues. DD will respond to any non-critical issue with the Licensed Products within 24 hours. A “non-critical issue” occurs when a Licensed Product is functioning but is degraded or impaired and assistance or further information is required.
- Hosted Support Service Level Agreement. If you have licensed a Licensed Product that is hosted by DD or one of its third party cloud hosting partners and have purchased support with guaranteed uptime, then in addition to the Service Level Agreement set forth in Section 4, DD will make the hosted service available 99.9% of the time in a given month (“Service Level Objective”). If DD fails to meet the Service Level Objective in a given month, affected customers will be eligible to receive a credit to their account to be applied against further Support Services. You must notify DD within thirty (30) days of DD’s failure to meet the Service Level Objective in order to receive the credit or your right to receive it is forfeited. Credit will be granted as follows:
Monthly System Availability | Monthly Service Credit Provided |
99.1%-99.8% | 10% |
95%-99% | 15% |
<95%< div>95%<> | 50% |
- Implementation Services. Implementation, training, and data migration services will be provided to you pursuant to our Professional Services Addendum.
- Product Updates. DD may develop and provide Updates in its sole discretion. DD has no obligation to develop any Updates at all or for particular issues. You shall be responsible for the installation of any Update. Any Updates shall become part of the Licensed Products. “Update” means updates, enhancements, bug fixes, patches, and other error corrections that DD makes available free of charge to all customers then entitled to Support Services as described herein. DD may determine in its sole discretion whether any issuance qualifies as a new version, new release, or update. DD or its third-party licensors shall own all right, title and interest in and to any Updates.
Effective May 17th 2023 to May 19th 2023
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- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. With respect to Church Management Solutions other than Amplify, You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit. With respect to Amplify Church Management, You acknowledge and agree that Ministry Brands will determine the number of records in your account on a monthly basis by the last day of each month. To the extent that the number of records exceeds the total number of records included in your subscription, you will be billed for the amount of the excess based on the per record rate then in effect.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to worshipplanning, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Streaming Services must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Streaming Services does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for Streaming Services includes a limited number of hours of streaming and gigabytes of storage. Ministry Brands may charge additional fees for the number of hours streamed and gigabytes stored by you if your usage exceeds the limit.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
App Builder Specific Terms
- Your Responsibilities. You shall be solely responsible for all content appearing in Your App, including without limitation all logos, photography and written content (the “Customer Materials”). You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for Your App to be distributed through the Apple Store and the Google Store (the “App Stores”). The App Stores may require you to obtain your own account in order to publish Your App to the App Stores. You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of Your App or your account application by the App Stores.
- Intellectual Property Ownership. All right, title and interest in and to Your App other than the Customer Materials, and all works, inventions and other subject matter incorporating, based on, or derived from Your App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands or its third party licensors. You have no right or license with respect to Your App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use Your App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with Your App. Your right to use Your App shall terminate upon termination of this Agreement.
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that the Customer Materials violate any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for App Builder includes only one software application. Ministry Brands may charge additional fees for additional software applications created using App Builder.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Communication Services, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services. Notwithstanding the foregoing, you agree that Ministry Brands may use publish and display any website designs or other materials developed as part of the Website Services and that incorporate Your Content for Ministry Brands' own marketing or promotional purposes.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Fees. With respect to Website Services offered under the Amplify brand, standard pricing set forth on your Order Form includes only one website. Should you add additional websites, you shall be charged an additional monthly fee with respect to each additional website.
- Any website we develop for you as part of the Website of Services shall display the “Powered by Ministry Brands” logo. You may not remove, distort or modify any element of the Powered by Ministry Brands logo.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a monthly or annual subscription or we may license content on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
- Terms Applicable to Use of SongSelect. If you subscribe to SongSelect as part of your subscription to Sharefaith, you hereby acknowledge and agrees as follows:
- All SongSelect content is the intellectual property of a third party, is protected by law, and no ownership, distribution rights, or other proprietary rights in such content are transferred to you.
- SongSelect content may be removed from time-to time without notice;
- You will comply with all applicable laws, including copyright law in your use of the SongSelect content and shall protect the rights of the SongSelect licensors;
- The usage rights granted to you are nonexclusive, are subject to revocation or termination at any time, and may not be transferred, assigned, sublicensed, distributed, or conveyed in any manner whatsoever;
- THE SONGSELECT LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE USE OF SONGSELECT OR THE SONGSELECT API, OR FROM CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API, OR FOR ANY OTHER DAMAGES OF ANY TYPE, NATURE OR DESCRIPTION ARISING OUT OF ANY LEGAL THEORY, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE THE SONGSELECT LICENSORS FROM ANY AND ALL LIABILITY RELATED TO YOUR SUE OF OR ACCESS TO SONGSELECT, THE SONGSELECT API, OR CONTENT MADE AVAILABLE THROUGH THE SONGSELECT API.
- THE SONGSELECT LICENSORS DISCLSIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Effective May 11th 2023 to May 17th 2023
DownloadTable of Contents
- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. With respect to Church Management Solutions other than Amplify, You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit. With respect to Amplify Church Management, You acknowledge and agree that Ministry Brands will determine the number of records in your account on a monthly basis by the last day of each month. To the extent that the number of records exceeds the total number of records included in your subscription, you will be billed for the amount of the excess based on the per record rate then in effect.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Streaming Services must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Streaming Services does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for Streaming Services includes a limited number of hours of streaming and gigabytes of storage. Ministry Brands may charge additional fees for the number of hours streamed and gigabytes stored by you if your usage exceeds the limit.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
App Builder Specific Terms
- Your Responsibilities. You shall be solely responsible for all content appearing in Your App, including without limitation all logos, photography and written content (the “Customer Materials”). You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for Your App to be distributed through the Apple Store and the Google Store (the “App Stores”). The App Stores may require you to obtain your own account in order to publish Your App to the App Stores. You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of Your App or your account application by the App Stores.
- Intellectual Property Ownership. All right, title and interest in and to Your App other than the Customer Materials, and all works, inventions and other subject matter incorporating, based on, or derived from Your App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands or its third party licensors. You have no right or license with respect to Your App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use Your App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with Your App. Your right to use Your App shall terminate upon termination of this Agreement.
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that the Customer Materials violate any third party intellectual property, proprietary or other right.
- Fees. The monthly subscription fee that may be charged for App Builder includes only one software application. Ministry Brands may charge additional fees for additional software applications created using App Builder.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Communication Services, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services. Notwithstanding the foregoing, you agree that Ministry Brands may use publish and display any website designs or other materials developed as part of the Website Services and that incorporate Your Content for Ministry Brands' own marketing or promotional purposes.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Fees. With respect to Website Services offered under the Amplify brand, standard pricing set forth on your Order Form includes only one website. Should you add additional websites, you shall be charged an additional monthly fee with respect to each additional website.
- Any website we develop for you as part of the Website of Services shall display the “Powered by Ministry Brands” logo. You may not remove, distort or modify any element of the Powered by Ministry Brands logo.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a monthly or annual subscription or we may license content on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
Effective February 28th 2023 to May 11th 2023
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- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Fees; Record Count. You acknowledge and agree that Ministry Brands will audit your record count every year beginning on the first anniversary of the date of your Agreement to license Church Management Services. Ministry Brands shall have the right to adjust pricing with respect to Church Management Services based on the record count determined as a result of such audit. Such pricing shall be in effect until the next audit.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Platform must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Platform does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Platform, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a subscription or on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
Effective January 30th 2023 to February 28th 2023
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- Individual Donor Accounts. Ministry Brands’ Giving Solutions are intended for our customers and their individual donors who are Authorized Users of our customers. If you are registered to use a Giving Solution only as an individual donor who is an Authorized User, you shall not allow another person to use your account credentials to access the Giving Solution and you may only use the Giving Solution on your own behalf. Ministry Brands and its affiliates will not be liable or responsible for any harm related to the use or misuse of your login credentials, including your username and password, your disclosure of your login credentials to another person, or your authorization to allow another person or entity to access and use the Giving solution using your login credentials.
- Content. The webpages of our Giving Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Giving Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing Giving Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Giving Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Giving Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Giving Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Giving Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Giving Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Giving Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, and Customers.
- Fees. In addition to any subscription fees with respect to the Giving Services, all transaction or payment processing fees, including without limitation, ACH return fees and dispute fees, shall be paid in accordance with the Payment Terms and Conditions.
- Termination. If the Payment Terms and Conditions are terminated in accordance with their terms, the Agreement with respect to Giving Services shall be terminated simultaneously without notice.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
Church Management Solutions Specific Terms
- Content. The webpages of our Church Management Solutions may be customizable by you with your branding and look and feel. Accordingly, certain features of the Church Management Solutions may allow you to post, upload, or otherwise transmit text, logos, images, photos, videos and/or other materials (collectively, “Your Content”). You hereby grant to Ministry Brands an irrevocable, perpetual, non-exclusive, transferable, assignable, royalty-free worldwide right and license to use, reproduce, display, perform, distribute and prepare derivative works of Your Content that you post in connection with customizing the Church Management Solutions web pages or Apps. If you post Your Content, you represent and warrant to Ministry Brands that you own or control all rights in and to Your Content and have the right to grant the foregoing rights to Ministry Brands, including in connection with any trial version of the Church Management Solutions. You further represent and warrant that the use of Your Content by Ministry Brands will not infringe upon or otherwise violation the intellectual property or other proprietary rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section. All posting of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT TO MINISTRY BRANDS. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT.
- No Content Monitoring. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, to the extent permitted by law, Ministry Brands reserves the right to review, modify (for formatting and editing purposes), remove or delete any of Your Content in its sole discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion. If notified by a third party that Your Content allegedly does not conform with these Terms, Ministry Brands may investigate the allegation and determine in our sole discretion whether to remove that portion of Your Content, which Ministry Brands reserves the right to do at any time and without notice.
- Obligations Regarding Messaging Through the Giving Solutions. Certain features of the Church Management Solutions allow you to message third parties, including without limitation, your Authorized Users, congregants, parishioners or other third parties (the “Messaging Services”). You shall ensure that your use of the Messaging Services is in compliance with all applicable laws, rules and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”). Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that, to the extent applicable, the Church Management Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Giving Services or any messages you send through the Church Management Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations. You represent and warrant that you have provided all notices and obtained all consents and permissions necessary to transmit any message to any recipients through the Church Management Services. Further, you are responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted any message via any medium to any recipient who has opted-out, withdrawn consent or for whom you do not otherwise have all necessary consents and permissions to communicate with through the Church Management Services.
- Disputes with Users. Ministry Brands and its affiliates have no responsibility or liability for any disputes, communications, or issues between you and your end users, Authorized Users, or customers.
- Effect of Termination. After termination or expiration of the Agreement, you agree that Ministry Brands has no obligation to you to retain Your Content, which may thereafter be permanently deleted by Ministry Brands.
- Grant of Rights to You. The rights granted to you under the Agreement include, without limitation, the right to embed our embeddable video player on third party websites, including your own website.
- Grant of Rights to Ministry Brands. You hereby grant to Ministry Brands the non-exclusive, royalty free, worldwide right and license to reproduce, display, stream, broadcast, replay, exploit, exhibit, show, market, distribute and to technically modify and compress Your Content as is necessary for the purposes of viewing and/or streaming of Your Content via the Streaming Services and Sermon Cloud.
- Grant of Rights to End Users. By making Your Content available on the Streaming Services, you agree to allow any visitors to Sermon Cloud to view Your Content via any current or future device capable of distributing video content by any means of access, including but not limited to computers, smartphones, tables, TV devices, IPTV platforms and/or game consoles free-of-charge.
- Ownership of Your Content. All right, title and interest in and to Your Content shall remain with you and nothing herein shall be deemed to transfer ownership of any copyright in Your Content to Ministry Brands.
- Acceptable Use Policy. Any of Your Content that you create via or upload to the Platform must comply with the Acceptable Use Policy set forth in this Article 3. Ministry Brands may remove or limit access or availability to any content or account that it considers in its sole discretion to violate this Acceptable Use Policy.
- Copyright Policy. You may only upload content that you have the right to upload and share. Copyright owners may send Ministry Brands a takedown notice as stated in our DMCA Policy if they believe Ministry Brands is hosting infringing materials. We reserve the right to terminate the account of anyone who repeatedly infringes any third party intellectual property or other proprietary right. Where Your Content contains material such as music, lyrics, sound recordings, words, film, clips, images or performances that you do not own the rights to, you confirm and represent and warrant that you have obtained all necessary permissions, licenses and consents to enable you to grant the rights you are granting to Ministry Brands hereunder. If Your Content features any identifiable persons, you confirm, represent and warrant that you have obtained all applicable releases to grant the rights you are granting to Ministry Brands hereunder.
- Content Restrictions. You represent and warrant that Your Content that you submit through the Platform does not:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities;
- infringe upon any third party copyright or other intellectual property right (including but not limited any privacy right or any brand, logo, trademark or any other material that you have not created yourself or for which you do not have the necessary clearances or permissions from third-party rights owners or copyright royalty collection organizations);
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or contain any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- support or promote the commission of violence or terrorist acts;
- exploit or endanger minors;
- contain any sexually explicit content;
- Restricted Users. You may not use our Streaming Services if you: (i) are a terror or hate group or a member thereof; or (ii) have been designated by a U.S. agency as an entity we may not contract with (e.g. a Specially Designated National).
- Your Indemnification. You shall defend (solely to the extent requested by Ministry Brands), indemnify and hold Ministry Brands and its affiliates, and its and their respective directors, officers, employees, and agents, harmless from and against any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) incurred by or brought against Ministry Brands or its affiliates arising out of or in connection with any claim that Your Content violates any third party intellectual property, proprietary or other right.
- If you have ordered Branded OTT as an add on to Streaming Services, this Section 7 applies: Ministry Brands agrees to develop a software application (the “OTT App”) meant to be accessed and used via “over the top” (“OTT”) devices or services including Roku and AppleTV. You shall provide to Ministry Brands all logo files and other materials and information requested by Ministry Brands in order to develop the OTT App (the “Customer Materials”) within a reasonable timeframe and shall provide all cooperation and assistance Ministry Brands reasonably requests to enable Ministry Brands to exercise its rights or perform its obligations under this Agreement. Ministry Brands is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement. You assume sole responsibility for any inaccurate Customer Materials you provide to Ministry Brands. Ministry Brands will apply for approval for the OTT App to be distributed through Roku and AppleTV (the “App Stores”). You acknowledge that Ministry Brands cannot control the approval decisions or the time frame for review and approval of the OTT App by the App Stores. All right, title and interest in and to the OTT App and all works, inventions and other subject matter incorporating, based on, or derived from the OTT App, including all enhancements, improvements and other modifications thereof (the “Derivatives”) and including all Intellectual Property Rights therein, are and will remain with Ministry Brands. You have no right or license with respect to the OTT App or derivatives except as expressly licensed herein. You represent and warrant that you have rights in and to the Customer Materials, included all rights needed to effectuate the terms of this Agreement. As between the parties, you are the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Ministry Brands hereby grants to you a fully paid up, royalty-free, non-transferable license to operate and use the OTT App solely for your business operations. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use and display your logo in association with the OTT App. You hereby grant to Ministry Brands a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the OTT App for the benefit of Customer. Your right to use the OTT App shall terminate upon termination of this Agreement.
- Your Responsibilities. Our Communications Services enable you to send mass messages via text messaging, emails, telephone calls, auto-dialer and/or pre-recorded message system to your customers or end users (“End Users”). You shall obtain all consents, permissions, and authorizations required under applicable law (“Consent”) from your End Users sufficient to allow you to contact them via the Communication Services at the email address or telephone number provided by the End User to you as necessary to input, provide, transfer, and make available data to Ministry Brands for the purposes of providing the Communications Services, including without limitation all Personal Data. You shall maintain all Consents and evidence of compliance with this Section, which shall be available to Ministry Brands upon request. You acknowledge and agree that you are solely responsible for promptly honoring and removing any End User from the Communications Services who revokes such Consent and are solely responsible for your systems through which the Communications Services is accessed.
- Your Representations and Warranties. You represent and warrant that your use of the Communications Services will be in accordance with the Agreement and any other applicable laws and regulations, including without limitation any federal, state or local laws or regulations regarding the Communications Services, online conduct, and acceptable content. You further represent and warrant that your collection and use of Personal Data shall be in compliance with all applicable federal, state, and local laws, rules, and regulations as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any Personal Data or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Law (“CASL”) and all Federal Communication Commission and/or Federal Trade Commission or other agency rules and regulations that implement the foregoing laws, industry regulations applicable to the use of mobile services, and any other laws prohibiting or regulating SMS, OTT messaging, email, or other messages that may be transmitted via the Communications Services. Failure to comply with CAN-SPAM, TCPA, or any other applicable laws, rules, and regulations will be a material breach of these Terms and may result in the immediate suspension and/or termination of your account. You understand and agree that the Communications Services merely provide a conduit for the transmission of messages, and Ministry Brands does not represent, warrant or guarantee that the Communications Services or any messages you send through the Communications Services will comply with CAN-SPAM, TCPA, or other such laws, rules, and regulations.
- Templates. Ministry Brands may provide you with the option to use communication templates (“Templates”) via the Communications Services. You acknowledge and agree that any Templates are provided solely for your convenience. Ministry Brands does not warrant or guarantee that such Templates shall comply with applicable law, rules or regulations. You acknowledge and agree that it is your responsibility to confirm that any Template and any of your modifications thereto comply with applicable law, rules or regulations and the requirements of this Agreement.
- Translation. Ministry Brands may provide a translation tool through the Communications Services. You acknowledge and agree that the translation tool is provided solely for your convenience. Ministry Brands does not warrant or guarantee that the translation tool will be accurate, complete, or free from errors. You acknowledge and agree that it is your sole responsibility to choose the appropriate language for each of your communications and confirm the translation is accurate, complete and free from errors.
- Your Responsibilities. When you upload, input, submit, or otherwise transmit (collectively, “Send” or “Sending”) any text, images, photos, video, data, information and/or other materials or communications, including without limitation Personal Data provided by you or your End Users via the Communication Services (collectively, “Your Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Sending of Your Content is your sole and exclusive responsibility. Ministry Brands merely provides a forum for the transmission and dissemination of Your Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON YOUR CONTENT. MINISTRY BRANDS AND ITS AFFILIATES ARE not responsible for transmission errors or corruption or compromise of YOUR CONTENT carried over local or interchange telecommunication carriers. Under no circumstances will Ministry Brands or its affiliates be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content provided, transmitted or otherwise made available via the Communications Services.
- Right to Review and Take Down. You acknowledge that Ministry Brands does not pre-screen or approve any of Your Content and has no obligation to monitor Your Content. However, Ministry Brands reserves the right to review, modify, distribute, remove or delete any of Your Content at its discretion. Ministry Brands reserves the right at all times to disclose any information as Ministry Brands deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, in Ministry Brands’ sole discretion.
- License Grant. By Sending Your Content through the Platform, you grant, and you represent and warrant that you have the right to grant, to Ministry Brands an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute Your Content and to prepare derivative works of, or incorporate into other works, Your Content, and to grant and authorize sublicenses of the foregoing. You warrant that the use of Your Content by Ministry Brands and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Ministry Brands will not pay you for Your Content or to exercise any rights related to Your Content set forth in this Section.
- Disclaimer. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY THAT COMMUNICATIONS OR OTHER TRANSMISSIONS THROUGH YOUR TELECOMMUNICATIONS CARRIER OR PROVIDER WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING WITHOUT LIMITATION, EMERGENCY COMMUNICATIONS) OR THAT COMMUNICATIONS WILL REACH THE INTENDED RECIPIENT, AND MINISTRY BRANDS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO SUCH INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY EMERGENCY COMMUNICATION OR ANY OTHER CALLS, EMAILS, TEXTS OR TRANSMISSIONS. MINISTRY BRANDS AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (B) THE COMMUNICATIONS SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) THE COMMUNICATIONS SERVICES OR PROFESSIONAL SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE COMMUNICATIONS SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; (F) THE COMMUNICATIONS SERVICES (OR ANY SERVER(S) THAT MAKE THE COMMUNICATION SERVICES AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE COMMUNICATIONS SENT VIA THE COMMUNICATION SERVICES WILL REACH THE INTENDED RECIPIENT(S); OR (H) YOUR CONTENT WITHIN THE COMMUNICATIONS WILL BE CONSTRUED APPROPRIATELY BY THE RECIPIENT(S).
- Your Obligations.
- You understand and agree that all decisions regarding the treatment, presentation or reporting of items within the scope of accounting, bookkeeping, payroll processing, payroll calculations (including payroll taxes), financial statements, tax return preparation and/or other tax reporting prepared by you (the “Financial Reporting”) using the Financial Solutions are made solely by you and that your use of the Financial Solutions does not relieve you of the responsibility for the preparation, accuracy, content and review of all Financial Reporting.
- You acknowledge that you are not relying on Ministry Brands for advice regarding the appropriate treatment of items reflected in any Financial Reporting prepared and/or processed using the Financial Solutions. You are responsible for and will review the accuracy of any Financial Reporting or computations made by you using the Financial Solutions.
- You are responsible for keying of all information accurately into the Financial Solutions.
- You agree to comply with all laws and regulations that relate to the commercial reparation and electronic filing of tax returns, including but not limited to IRS Regulations, publications and other applicable laws relating to your business.
- You shall not use the Financial Solutions for any illegal, fraudulent or otherwise improper purpose, including without limitation, misrepresenting taxpayer information, impersonating another company or business, or undertaking activities intended to circumvent regulatory requirements or other IRS or State non-compliant activities. Ministry Brands shall have the right to immediately terminate this Agreement or to suspend your access to the Financial Solutions if it has determined, in its sole discretion, that you are in violation of this Section. In such event, you shall not be entitled to any refund of monies paid to Ministry Brands.
- You are responsible for the backup and retention of all data you input into the Financial Solutions.
- You are responsible for acquiring and maintaining an information technology infrastructure with sufficient capabilities to operate the Financial Solutions and comply with all provisions of this Agreement.
- You will use the Financial Solutions for the sole purpose of internal non-commercial preparation of financial statements, bookkeeping reports, payroll and preparing and filing federal and state tax returns and electronically filing tax returns. Any other use of the Financial Solutions is expressly prohibited.
- Payroll Taxes. Updates to payroll tax tables may be provided from time to time by Ministry Brands or its third-party provider to active subscribers of the Financial Solutions. On-premises subscribers must be connected to the internet in order to receive such updates, including the most current rates and calculations for supported tax tables. Failure to do so may result in inaccurate withholding from payroll and you hereby assume any and all liability resulting from any such inaccurate withholding resulting in any way from your failure to regularly connected and update your on-premises Financial Solutions. Due to the nature and frequency of changes in payroll tax rates, if your on-premises subscription to our Financial Solutions expires, you will be unable to continue to process payroll using our on-premises Financial Solutions tax tables or tax forms.
- On-Premises Solutions. If you subscribe to an on-premises version of the Financial Solutions, in order for you to be able to calculate federal and state payroll taxes and make payments, you must have an internet connection and a valid license for a compatible, currently supported, and registered version of our Financial Solutions. You are solely responsible and liable for the security, and for controlling any access to or use of any forms W-2 viewed and/or saved on your computer.
- Preparation and Filing of Payroll Taxes. You understand that you alone are responsible for the timely preparation and remittance of all required payroll liabilities and taxes filings, regardless of the features or options available through the Financial Solutions, including verifying that any Payroll Transaction (defined below) has been sent, received and accepted by the relevant taxing authority, and if necessary, you are also responsible for manually delivering any filings and payments to the relevant taxing authority in the event any online Payroll Transaction is rejected, in order to ensure timely receipt of such filing(s) or payment(s) by the relevant taxing authority before the required due date. To be able to electronically file and pay your payroll taxes and other liabilities with or to the applicable governmental taxing and revenue authority website (each a “Payroll Transaction” and collectively, the “Payroll Transactions”) using the Financial Solutions, you must have an internet connection and an active license to use the Financial Solutions.
- Payroll Tax Tables. YOU ASSUME FULL RESPONSIBILITY FOR YOUR SELECTION OF THE TAX TABLE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF ANY TAX TABLE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE TAX TABLES. MINISTRY BRANDS, ITS AFFILIATES AND ITS THIRD-PARTY SUPPLIERS DISCLAIM AND EXCLUDE ANY REPRESENTATION OR WARRANTY THAT ANY TAX TABLE OR FUNCTIONS CONTAINED IN ANY TAX TABLE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Overview. As part of our Website Services, you may engage us to build a website on your behalf using technology owned by Ministry Brands or its third-party licensors or you may build your own website using technology owned by Ministry Brands or its third-party licensors. We may also offer hosting services for your website. All content appearing on your website will either be provided by you or by Ministry Brands or its third party suppliers. The content that is provided by you is referred to as “Your Content”. The content that is provided by Ministry Brands or its third party suppliers is referred to as the “MB Content.”
- Your Responsibilities for Non-Hosted Websites. Unless you have engaged us to host your website, you are solely responsible for the development, maintenance and operation of your website, including handling any customer inquiries, complaints or disputes arising from your website. You are also solely responsible for backing up your website and any data contained therein. You agree that Ministry Brands has no obligation to backup any data related to your website’s content, data or operation and you should independently take appropriate steps to maintain any content or data in accordance with your needs and requirements.
- Your Content. You are solely responsible for creating, managing, editing, reviewing and otherwise controlling Your Content on your website even if your website has been built by Ministry Brands or if Ministry Brands provides any ongoing design or website customization services to you. You understand and agree that Ministry Brands is acting only as a passive conduit for the publishing and/or distribution of Your Content through your website. Ministry Brands has no obligation to you or any third party and undertakes no responsibility to review your website or Your Content on your website to determine whether Your Content may incur liability for you to third parties. If you post Your Content or allow your users to upload Your Content onto your website, you agree to designate a copyright agent under the Digital Millennium Copyright Act (the “DMCA”) (17 U.S.C 512(c)(3)). If a copyright holder contacts Ministry Brands’ copyright agent under the DMCA, you acknowledge and agree that Ministry Brands may take all necessary action as required under the DMCA in its sole and absolute discretion, including removing Your Content from your website.
- MB Content. In connection with building and operating your website, Ministry Brands may make available to you the MB Content. As long as the Agreement is still in effect, Ministry Brands grants you the right to incorporate the MB Content into your own original work to create a derivative work (“MB Content Derivative Work”) and publish, display and distribute any MB Content Derivative Work on your website. The MB Content includes any MB Content Derivative Work. Immediately upon creation of any MB Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in any MB Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the MB Content Derivative Work. You are also granted the limited right to back up, copy or archive the MB Content as necessary for internal use. You must display any trademark or copyright information associated with any MB Content that you use. You may not resell, sublicense or otherwise make the MB Content available for use or distribution separately or detached from your website. Further, you may not use any of the MB Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content.
- Your Intellectual Property Rights. As between you and Ministry Brands, you retain all rights, title and interest in any to any intellectual property rights in Your Content, except to the extent that you incorporate Your Content into an MB Content Derivative Work. During the period you subscribe to our Website Services pursuant to this Agreement, you hereby grant to Ministry Brands and its third-party licensors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify and otherwise use your website and Your Content solely for the purpose of rendering the Website Services.
- Grant of Rights; Ministry Brands’ Background Technology. Ministry Brands hereby grants to you a worldwide, non-transferable, non-sublicensable, revocable, royalty free right and license to use the Background Technology solely as necessary to operate your website. As between you and Ministry Brands, Ministry Brands or its third party licensors retains all rights, title and interest in and to any Background Technology and any MB Content. “Background Technology” means all programming or formatting code or operating instructions developed by or for Ministry Brands or its third-party licensors, whether before or after the effective date of the Agreement, and used to build, host or operate a website or web server in connection with a website, including without limitation, files necessary to make forms, buttons, checkboxes and similar functions, customized graphics manipulation, menu utilities, animation templates, and interface programs that link multimedia and other programs. Background Technology does not include Your Content. If this Agreement expires or terminates for any reason, your license to use the Background Technology will automatically terminate and you must destroy all copies of the Background Technology or related documentation in your possession.
- Collection and Use of Visitor Data. You are solely responsible for maintaining all data of third parties who visit or use your website in accordance with all applicable privacy laws and in accordance with your privacy policy, if any.
- Types of Licenses We Offer. You can license Content under our Sharefaith brand (the “Sharefaith Content”) with a subscription or on a download basis. The Rocket Company video content (the “RC Content”) may only be licensed via a monthly or annual subscription.
- Grant of License for Sharefaith Content. Subject to the terms of the Agreement, if you are purchasing Sharefaith products or services, Ministry Brands hereby grants to you a perpetual, non-exclusive, worldwide, non-transferable, unlimited right to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute the Sharefaith Content, for your personal and non-commercial purposes only. Ministry Brands also grants you the right to modify, edit, or incorporate the Sharefaith Content into your own original work to create a derivative work (“Sharefaith Content Derivative Work”) and to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise distribute any Sharefaith Content Derivative Work for your personal and non-commercial purposes only. The Sharefaith Content includes any Sharefaith Content Derivative Work. Immediately upon creation of any Sharefaith Content Derivative Work, all Intellectual Property Rights (as defined in the Agreement) in the Sharefaith Content Derivative Work vest absolutely in and will be and remain the property of Ministry Brands, and you hereby assign to Ministry Brands any rights or interests you hold in the Sharefaith Content Derivative Work.
- Grant of License for RC Content. Subject to the terms of the Agreement, if you have purchased a subscription to The Rocket Company products or services, Ministry Brands hereby grants to you a non-exclusive, worldwide, limited, non-transferable right to access, view and listen to the RC Content for your personal and non-commercial use.
- Restrictions on Use.
- You may not use any of the Content to:
- violate any applicable laws or regulations and/or display, incite or promote illegal activities, including without limitation in a pornographic or defamatory manner;
- support or promote violence or hatred or the commission of violence or terrorist acts;
- promote fraudulent or dubious money-making schemes, propose an unlawful transaction or use deceptive marketing practices;
- defame, harass or abuse others, or promote any hateful or discriminatory speech;
- support any organization or individuals that proclaim a violent mission or are engaged in violence, including organizations or individuals involved in terrorism, organized hatred against other groups of individuals, human trafficking or organized criminality;
- create or use any trademark, service mark or logo;
- promote any political campaign;
- exploit or endanger minors; or
- create, broadcast, display or otherwise transmit any sexually explicit content
- Further, you may not:
- remove any copyright or trademark from any place where it appears on the Content;
- rent, lease, sublicense or lend the Content to another person or legal entity; or
- transfer the rights to the Content to another person or legal entity.
- You may not use any of the Content to:
- Termination of Agreement. Ministry Brands has the right to immediately terminate your subscription and this Agreement should it determine in its sole discretion that you have violated any of the terms of this license.
- Intellectual Property Rights. All of the Sharefaith Content and RC Content is owned either by Ministry Brands, its affiliates or its third-party content contributors who supply the Sharefaith Content and RC Content to Ministry Brands. All rights in the Sharefaith Content and RC Content not expressly granted in this Agreement are reserved by Ministry Brands and the Content suppliers.
- Content Withdrawal. Ministry Brands may, in its sole discretion, discontinue licensing of any item of Content. If Ministry Brands notifies you that any Content is subject to a claim of infringement of a third party’s intellectual property or other proprietary rights for which Ministry Brands may become liable, Ministry Brands may require you to immediately and at your own expense to cease using the affected Content and delete or destroy any copies. In such event, Ministry Brands may, at its sole option, provide you with replacement Content, but you understand that you will not receive a refund with respect to any Content we have withdrawn due to the possibility of infringement.
- Disclaimer of Warranties. All Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including but not limited to implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Ministry Brands and its affiliates do not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free.
Payment Terms
Effective July 1st 2024
DownloadTable of Contents
- Definitions
- “Acquirer” refers to Payment Facilitator, Processor, and/or Bank, any of which shall have the authority to exercise rights belonging to the Acquirer hereunder.
- “Addendum” (and the plural, “Addenda”) refers to each Addendum attached hereto, or any other Addendum otherwise executed or agreed to between the parties.
- “Agreement” refers to these terms and conditions, along with the attached Addenda and the Sponsored Merchant Application, as any of the same may be amended from time to time pursuant to these terms.
- “American Express” refers to American Express Travel Related Services Company, Inc. or its successors or assigns.
- “Applicable Law” refers to all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance, including all laws in both the Cardholder and the Sponsored Merchant’s jurisdictions.
- “Bank” refers to the acquiring bank identified in the Sponsored Merchant Application, or such other acquiring bank(s) as Payment Facilitator or Processor may contract with to provide sponsorship with the Payment Networks, as well as any successors and assigns of such acquiring bank(s).
- “Card” refers to an account, or evidence of an account, authorized and established between a Cardholder and a Payment Network, or representatives or members of a Payment Network, that Sponsored Merchant accepts from Cardholders as payment for a good or service. Sponsored Merchant acknowledges that a “Card” may include an account (including, e.g., a Venmo or Pay Pal account) that does not involve the issuance of a physical card.
- “Card Information” refers to all information related to a Cardholder or Card obtained by Sponsored Merchant in connection with a Transaction, including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, or account balances.
- “Cardholder” refers to the person or entity to whom a Card is issued or who is authorized to use a Card.
- “Chargeback” refers to the reversal of any Transaction pursuant to the Operating Rules for whatever reason.
- “Data Compromise Event” refers to any event that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information, Cardholder information and/or Card Information.
- “Discover” refers to Discover Financial Services, LLC or its successors or assigns.
- “Mastercard” refers to Mastercard International Incorporated or its successors or assigns.
- “Operating Rules” refers to all rules, bylaws, programs, terms, and regulations of the Payment Networks, as the same are amended from time to time, including, without limitation, the provisions thereof governing or otherwise applicable to “Merchants,” “Sponsored Merchants,” or “Submerchants” and the terms set forth in Addendum 2. Certain Payment Networks make excerpts of their Operating Rules available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html; https://usa.visa.com/support/consumer/visa-rules.html; https://www.americanexpress.com/merchantopguide; https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf; and https://www.paypal.com/us/legalhub/platform-seller-agreement?locale.x=en_US Sponsored Merchant explicitly agrees to be bound by the Operating Rules, which shall be treated as contractual obligations running from Sponsored Merchant to Acquirer under this Agreement.
- “Payment Facilitator,” “Ministry Brands Holdings, LLC,” or “we” refers to Ministry Brands Holdings, LLC.
- “Payment Network” refers to each of Visa, Mastercard, American Express, Discover, and any card network issuing credit or debit cards or provider of other payment modalities (including, without limitation, Apple Pay, Venmo, or PayPal) that Payment Facilitator or Processor may agree to support from time to time, and, for purposes of this Agreement, further includes the Payment Card Industry Security Standards Council.
- “PCI DSS” refers to the Payment Card Industry Data Security Standards.
- “Processing Fees” refers to the fees and charges set forth on the fee schedule that is part of the Sponsored Merchant Application and this Agreement or any Addenda thereto, as modified or amended from time to time, whether by the Payment Networks or by Acquirer pursuant to this Agreement, including, without limitation, by messages included on any processing statement.
- “Processor” refers to Worldpay LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384, and its successors and assigns, or such other payment processor as Payment Facilitator may contract with to provide payment processing functionality.
- “Reserve Funds” refers to funds placed in one or more non-segregated and non-interest bearing accounts established by Acquirer in accordance with this Agreement to ensure payment of all obligations or anticipated obligations hereunder, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Security Standards” refers to all rules, regulations, or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, PCI DSS, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and any successor rules, regulations or standards, in each case, as any of the same may be amended from time to time.
- “Services” refers to those services provided by Acquirer, necessary and required to facilitate the authorization, processing, and settling of Transactions.
- “Settlement Account” refers to the account maintained by Sponsored Merchant at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Sponsored Merchant” or “you” refers to the legal entity identified in the Sponsored Merchant Application.
- “Sponsored Merchant Application” refers to the application that Sponsored Merchant completed and signed (including by electronic signature or otherwise electronically indicating acceptance of the terms) and which is subsequently accepted by Acquirer, whether evidenced by the execution of this Agreement or by the processing of presented Transactions.
- “Transaction” refers to any interaction between a Cardholder and a Sponsored Merchant in which a Cardholder uses a Card to purchase Sponsored Merchant’s goods or services or donate to Sponsored Merchant and which results in activity on the Cardholder’s account.
- “Transaction Information” means any data or information resulting from a Transaction, including payment processing-related information collected or stored by Processor or Payment Facilitator, including the price paid for products or services, data, time, approval, unique transaction number, store identifier, and may include Card Information and Cardholder information.
- “Visa” refers to Visa Inc. or its successors or assigns.
- Services
- Subject to Applicable Law and the Operating Rules, Payment Facilitator (or its agents, contractors, or designated representatives) will provide the Services to Sponsored Merchant pursuant to the terms of this Agreement. Sponsored Merchant agrees to abide by, and to use the Services in strict compliance with, Applicable Law, the Security Standards, and the Operating Rules.
- Upon request, Payment Facilitator, Processor, and/or Bank may elect to provide certain Automated Clearing House (“ACH”) processing services to Sponsored Merchant at the rates specified in the Sponsored Merchant Application and under the terms set forth in this Agreement. To the extent Sponsored Merchant uses such ACH processing services, it agrees to abide by the National Automated Clearing House Association (“NACHA”) rules and regulations, as the same may be amended from time to time, which shall be treated as an additional Payment Network for purposes of this Agreement.
- Sponsored Merchant Representations and Responsibilities
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- The person signing the Sponsored Merchant Application has full legal power and authority to enter into this Agreement;
- Sponsored Merchant meets the definition of, and has satisfied the requirements applicable to, “Merchants” (taking into account the fact that Sponsored Merchant is authorized to accept cards pursuant to this Agreement rather than a merchant agreement), “Sponsored Merchants,” and/or “Submerchants” under the Operating Rules;
- Each statement made by Sponsored Merchant on the Sponsored Merchant Application is and, except as has been disclosed in writing to Payment Facilitator, remains true;
- Sponsored Merchant has its principal place of business in, is located in, and has been formed (if Sponsored Merchant is an entity or organization) under the laws of, the United States;
- The Transaction is legal and genuine, was conducted in accordance with this Agreement, and arises from a bona fide sale of goods or services by, or donation to, Sponsored Merchant (and not by any other entity) in the United States for which, to the extent required by the Operating Rules, authorization was obtained; except as otherwise permitted by the Operating Rules, and where applicable, the goods have been shipped or delivered and/or the services performed; and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose;
- The Transaction is not one that Sponsored Merchant knows or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and the Sponsored Merchant, or that is otherwise unlawful, illegal, or impermissible under this Agreement, Applicable Law or the Operating Rules;
- All information and data provided by Sponsored Merchant in connection with the Transaction is true, correct, and accurate;Sponsor Merchant grants Acquirer the right to provide the same to the Payment Networks; and Sponsor Bank warrants that the provision of such information to the Payment Networks complies with Applicable Law and the terms of any applicable privacy policy(ies) or agreements;
- Sponsored Merchant has taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder;
- The Transaction is not subject to liens, encumbrances, disputes, set- off, or counterclaim (other than ordinary sales taxes);
- The Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules) and the Transaction has not been previously charged back to the Acquirer and subsequently returned to the Sponsored Merchant; provided, however, that Sponsored Merchant may pursue payment from the customer outside of the payment card ecosystem;
- Sponsored Merchant has not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction;
- The Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible;
- The Transaction does not arise from the dishonor of a Cardholder’s personal check;
- Sponsored Merchant has the legal right to sell the goods and services purchased by Cardholder or to accept the donation from the Cardholder via the Transaction and is providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and services, as applicable;
- Sponsored Merchant has accurately provided and has not altered or manipulated its “doing business as” name, country location (which name and country is the same as that disclosed to Cardholders in connection with a Transaction), the description of its business for selection of an appropriate Sponsored Merchant category code/Card acceptor business code (“MCC”), and, as applicable, its unique merchant identification number (“MID”) (defined below) in the authorization request/message and clearing record/message for such Transaction;
- Sponsored Merchant is not operating a business prohibited by the Operating Rules and has correctly identified for Payment Facilitator the MCC that most closely reflects the Sponsored Merchant’s primary business in accordance with applicable MCC guidance from the Payment Networks;
- Sponsored Merchant has made no representation or agreement for the issuance of refunds except as stated in Sponsored Merchant’s refund policy;
- Sponsored Merchant is responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to Payment Facilitator, and/or for any dispute Transaction or credit and has made clear to each Cardholder that the Sponsored Merchant is responsible for the Transaction (including the delivery of goods or provision of services that are the subject of the transaction, if applicable) and for customer service and dispute resolution;
- Sponsored Merchant has not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and
- Any Transaction submitted to Payment Facilitator to credit a Cardholder’s account represents a refund for a Transaction previously submitted to Payment Facilitator.
We reserve the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
- Subject to Applicable Law and the Operating Rules, Sponsored Merchant agrees to accept all categories of Visa and Mastercard Cards unless Sponsored Merchant has notified Payment Facilitator on the Sponsored Merchant Application of its election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. Furthermore, Sponsored Merchant shall not engage in, and shall maintain a policy against engaging in, any practice that discriminates against or discourages the use of any Card or Card Issuer in favor of another Card or Card issuer, except in full compliance with the Operating Rules.
- Except to the extent permitted by both Applicable Law and the Operating Rules and as authorized in writing by Payment Facilitator, Sponsored Merchant shall not (i) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); (ii) add any tax to Transactions unless Applicable Law expressly requires such addition (in which case the tax must be included in the Transaction amount and not collected separately); or (iii) set minimum or maximum transaction amounts.
- Sponsored Merchant must not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
- Sponsored Merchant shall maintain a written refund policy and shall disclose such policy to Payment Facilitator and all its customers (including customers making purchases online by displaying such policy on the website) consistent with Applicable Law and the Operating Rules. The amount of any refund shall not exceed the original Transaction except to the extent a Sponsored Merchant agrees to reimburse a Cardholder for return shipping. The refund policy with respect to any Card must be at least as favorable as Sponsored Merchant’s refund policy with respect to other payments products.
- Subject to Applicable Law, the Operating Rules, and the Security Standards, Sponsored Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer upon request from time to time.
- Sponsored Merchant may not bill or collect from any Cardholder for any purchase or payment on a Card unless a Chargeback has been exercised, the Sponsored Merchant has fully paid for such charge, and it otherwise has the right to do (including under Applicable Law).
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- Processing Agreements; Certain Payment Network Terms
- Sponsored Merchant acknowledges and agrees:
- This Agreement is subject to the terms of each of Payment Facilitator’s agreements with Processor and/or Bank (collectively, the “Processing Agreements”). This Agreement does not, and may not, restrict or interfere with the right of Processor or Bank to terminate this Agreement at any time or the right of Payment Facilitator to terminate this Agreement at any time as required by the Processing Agreements.
- All obligations in or under any of the Processing Agreements that are intended to apply to Sponsored Merchant (including, without limitation, any obligations of a merchant or sponsored merchant thereunder) are hereby incorporated into this Agreement and shall apply to Sponsored Merchant. Notwithstanding anything herein to the contrary, Sponsored Merchant is not a third-party beneficiary of, has no rights under, and may not bring any claim against Processor or Bank relating to, any of the Processing Agreements or any agreement with the Payment Networks.
- This Agreement is also subject to the Operating Rules. Without limiting the preceding sentence:
- This Agreement does not limit the Operating Rules or any of Acquirer’s respective rights thereunder.
- Sponsored Merchant may not take any action that could interfere with, or prevent the exercise of, action by any of Payment Networks to (a) enforce any of the Operating Rules, (b) prohibit Payment Facilitator or Sponsored Merchant from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks or to Processor or its affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
- Notwithstanding anything herein to the contrary, to the extent required by a Payment Network, the Operating Rules of such Payment Network shall govern to the extent of any irreconcilable conflict between this Agreement and such Operating Rules.
- In the event that Sponsored Merchant submits for processing in any twelve-month period more than $1,000,000 in Visa transactions and/or $1,000,000 in MasterCard transactions (or such other amount provided by the Operating Rules as necessitating a tripartite processing agreement) (the “Threshold Amount”), and Sponsored Merchant is categorized within certain MCC does designated by the Payment Networks, Sponsored Merchant will automatically be deemed to have accepted, and will be bound by, the Merchant Agreement (set forth in Addendum 1, Merchant Services Agreement for Sub-Merchants), effective as of the date Sponsored Merchant's transaction volume exceeds the Threshold Amount, the terms of which will be independently enforceable by Processor and Bank.
- In addition to the remaining provisions of this Agreement, the following terms and conditions shall govern Sponsored Merchant’s acceptance of Cards issued by American Express:
- Sponsored Merchant expressly authorizes Payment Facilitator to submit Transactions to, and (if applicable) receive settlement from, American Express on behalf of the Sponsored Merchant.
- Sponsored Merchant authorizes American Express to receive information regarding Sponsored Merchant and its Transactions and agrees that American Express shall be entitled to use such information (i) to perform its responsibilities in connection with the program; (ii) to promote the American Express network; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communication purposes and important transactional or relationship communications from American Express. Furthermore, American Express shall be entitled to use information obtained in the Sponsored Merchant’s application to screen, communicate, and/or monitor Sponsored Merchant in connection with marketing and administrative purposes.
- Sponsored Merchant may opt out of receiving future commercial marketing communications from American Express. Sponsored Merchant agrees, however, that such an opt-out will not preclude American Express from sending important transactional or relationship communications and Sponsored Merchant may continue to receive marketing communications while American Express updates its records. In addition, Sponsored Merchant may opt out of accepting Cards (including Cards issued by American Express) at any time without directly or indirectly affecting its rights to accept other payments products.
- Sponsored Merchant acknowledges that it may be converted to a direct Card acceptance relationship with American Express if and when it becomes “High CV Merchant” in accordance with Operating Rules promulgated by American Express. Upon any such conversion, Sponsored Merchant will be bound by American Express’s then- current card acceptance agreement, and American Express will set pricing and other fees payable by Sponsored Merchant for Card acceptance.
- Sponsored Merchant shall not assign to any third party any payments due to it under this Agreement; provided, however, that Sponsored Merchant may sell and assign future Transaction receivables to Payment Facilitator, its affiliated entities, and/or any other cash advance funding source that partners with Payment Facilitator or its affiliated entities without the consent of American Express.
- Sponsored Merchant will comply with the American Express Technical Specifications as the same may be amended from time to time.
- Sponsored Merchant will comply with applicable privacy and data protection laws and provide specific and adequate disclosures to Cardholders regarding the collection, use, and processing of personal data.
- Sponsored Merchant acknowledges and agrees:
- Term; Termination
- This Agreement shall commence on the date this Agreement is accepted by Acquirer, whether by signature or by the processing of presented Transactions. Unless earlier terminated as provided in this Agreement, or except as may be provided in a contemporaneously submitted order form, the Agreement shall continue until it is terminated by either party on not less than thirty (30) days’ written notice. If Sponsored Merchant presents, and Payment Facilitator elects to process, Transactions beyond the conclusion of the Initial Term or any Renewal Term, then the terms of this Agreement will continue to govern such processing activity.
- Any Payment Network may terminate or limit this Agreement as permitted by the Operating Rules of such Payment Network.
- In addition to any other termination rights, Acquirer may terminate this Agreement (or, pursuant to clause (I) of this Section 5c, may terminate this Agreement as to any Payment Network) or any Addendum immediately, or may suspend Services or decline to process particular Transactions, with or without notice, if (A) Sponsored Merchant fails to strictly comply with any term of this Agreement; (B) Acquirer, in its sole discretion, determines that Sponsored Merchant or any affiliated entity or individual is violating the Operating Rules or Applicable Law or is engaging in suspicious, wrongful, fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Acquirer or the Payment Networks (and Payment Facilitator may also suspend Services or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (C) Sponsored Merchant, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (D) Acquirer deems Sponsored Merchant to be financially insecure; (E) Sponsored Merchant materially alters its business; (F) there is a material change in Sponsored Merchant’s processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application; (G) Acquirer receives direction from any Payment Network to terminate this Agreement; (H) Acquirer, in its reasonable discretion, determines that circumstances otherwise warrant immediate termination or suspension; (I) any Payment Network takes any of the Adverse Registration Actions or limits this Agreement pursuant to the Operating Rules thereof; (J) any of Processing Agreements are terminated; or (K) Payment Facilitator has determined it is required to terminate this Agreement by any of the Processing Agreements or Operating Rules. Furthermore, Payment Facilitator may terminate this Agreement at any time upon thirty (30) days’ written notice.
- This Agreement shall automatically terminate to the extent required by the Operating Rules.
- In addition to any other termination rights, Sponsored Merchant may terminate this Agreement if we have failed to perform a material obligation in this Agreement and such failure has not been cured for thirty (30) days after Sponsored Merchant notifies Payment Facilitator in writing of such failure.
- All Sponsored Merchant obligations with respect to Transactions processed under this Agreement shall survive any termination, including, without limitation, the obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- Non-Exclusivity
- This Agreement is non-exclusive. Sponsored Merchant may receive services, or enter into an agreement to receive services, with another merchant acquirer. Likewise, Sponsored Merchant acknowledges and agrees that Payment Facilitator may provide services to other sponsored merchants.
- Procedures for Transactions
- Within forty-eight (48) hours (or any shorter period mandated by the Operating Rules) after the completion of a Transaction Sponsored Merchant believes to be authorized by a Cardholder, Sponsored Merchant shall submit all Transaction Information therefor to Payment Facilitator for processing. Sponsored Merchant shall submit such information to Payment Facilitator, along with any other information that may reasonably be requested in connection with a Transaction, in such form as Payment Facilitator may specify from time to time. Sponsored Merchant understands that failure to submit such Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and Sponsored Merchant agrees to pay any such fees if assessed; and/or (b) compromise Sponsored Merchant’s ability to be paid for the Transaction(s).
- Sponsored Merchant shall not submit for processing: (a) any Transaction that does not involve Sponsored Merchant, or that does not originate from an interaction between Sponsored Merchant and a Cardholder intending to make a purchase from or donation to Sponsored Merchant; (b) any Transaction for which Sponsored Merchant does not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of Sponsored Merchant’s normal course of business as reflected on the Sponsored Merchant Application. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Agreement.
- Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for Sponsored Merchant that aligns with the Sponsored Merchant’s sales volume, as indicated on the Sponsored Merchant Application.
- Settlement
- Except as elsewhere provided herein, after receiving funds for approved Transactions from any Payment Network, Payment Facilitator will direct Processor and/or Bank to provisionally fund Sponsored Merchant’s Settlement Account, minus (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amounts authorized to be retained under Sections 22 or 23 of this Agreement. Failure to subtract such amounts does not relieve Sponsored Merchant of liability or responsibility for the same, and Sponsored Merchant agrees that Payment Facilitator may Sponsored Merchant agrees to pay all such amounts to Acquirer immediately upon receipt of any invoice and without deduction or offset. Prior to such funding, Processor or Bank, as applicable, may maintain funds associated with Sponsored Merchants’ transactions in a commingled account, and Sponsored Merchant shall have no right to such account, the funds therein, or interest, if any, obtained thereon. Sponsored Merchant acknowledges that Payment Facilitator is not a licensed money transmitter and shall not take receipt of any funds for purposes of transmission to Sponsored Merchant.
- For each approved Transaction for which Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, Sponsored Merchant hereby irrevocably authorizes Payment Facilitator to deliver instructions to Bank and/or Processor with regard to the amount and timing of payments to be made to the Settlement Account, including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts in respect of Payment Facilitator’s fees) and (b) pay remaining settlement funds, if any, to the Settlement Account.
- Sponsored Merchant must maintain a Settlement Account at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks. Sponsored Merchant authorizes Acquirer to initiate debit and credit entries to the Settlement Account, including through the ACH settlement process or via wire transfer, and agrees that Acquirer may debit the Settlement Account for any amounts owed hereunder to Acquirer or to which Acquirer or any of its affiliates may otherwise be entitled for any reason, including, but not limited to, amounts owed to Acquirer or any of its affiliates under any other agreement with Sponsored Merchant. Sponsored Merchant agrees to execute any additional documentation necessary to debit the Settlement Account as described herein. Such authorization shall remain in place until the later of termination of this Agreement or Sponsored Merchant’s satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. Sponsored Merchant may change the Settlement Account only as provided in Section 21 of this Agreement. Sponsored Merchant shall maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds, and shall be solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
- Sponsored Merchant acknowledges and agrees that: (a) Payment Facilitator, Processor, and Bank shall have no liability or responsibility for delays in the transmission or deposit of funds or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Sponsored Merchant or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) time periods set forth in Payment Facilitator’s marketing material, brochures, collateral and/or similar materials are estimates only; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) Payment Facilitator shall not be liable or responsible for any delays in the transmission or deposit of funds due or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Processor or Bank.
- Acquirer reserves the right to refuse to process any Transaction if Acquirer, in its sole discretion, believes that the Transaction may be uncollectible from the Cardholder, is likely to result in a Chargeback, and/or was presented in violation of the terms of this Agreement, the Processing Agreements, Applicable Law, and/or the Operating Rules.
- Sponsored Merchant acknowledges that all payments and credits provided to Sponsored Merchant are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Agreement and the Operating Rules.
- Marks and Intellectual Property
- Sponsored Merchant shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Agreement or at the direction of any Payment Network. Sponsored Merchant acknowledges that all such logos, marks, advertising and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network, which ownership Sponsored Merchant agrees not to challenge, and that such Payment Network may prohibit Sponsored Merchant’s use thereof at any time and for any reason, with or without notice. Further, from time to time, Payment Facilitator may provide Sponsored Merchant with materials that include Payment Facilitator’s name, logo, trademarks, and/or service marks. Sponsored Merchant shall only use such materials as expressly permitted by Payment Facilitator, and shall return to Payment Facilitator such materials upon the termination of this Agreement for any reason or upon Payment Facilitator’s earlier request at any time. Sponsored Merchant shall not at any time represent, directly or by implication, that its goods or services are endorsed, sponsored, or guaranteed by Acquirer or any Payment Network. This Agreement shall not confer on Sponsored Merchant any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
- Acquirer may require any changes to Sponsored Merchant’s website or otherwise that Payment Facilitator deems necessary or appropriate to ensure that Sponsored Merchant remains in compliance with the Operating Rules governing the use of the intellectual property described in Section 9a.
- All of Payment Facilitator’s computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services are and will remain the sole and exclusive property of the Payment Facilitator. Payment Facilitator shall own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from Sponsored Merchant’s request.
- Data Security
- Sponsored Merchant acknowledges that it is its responsibility to abide, and agrees to abide, by all Security Standards, including PCI DSS, and to provide proof of compliance to Acquirer or any Payment Networks as required or upon request, including, without limitation, by attestation or an examination of Sponsored Merchant’s systems to validate such compliance. The costs of any such attestation or examination shall be Sponsored Merchant’s sole responsibility.
- Without in any way limiting the obligations imposed by the preceding paragraph, Sponsored Merchant will (a) secure and keep confidential Cardholder information, Card Information and Transaction Information, including, but not limited to, the magnetic stripe and Card Verification Value 2 (“CVV2”), in strict compliance with this Agreement, the Security Standards, and Applicable Law, and will not use, disclose, or distribute any such information except as permitted by the Security Standards or Applicable Law and, further, may not disclose or distribute such information to any third party other than a third-party service provider described in Section 10c; and (b) maintain systems and media containing any Cardholder information, Card Information or Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information.
- To the extent Sponsored Merchant uses any third party to process, store, receive, transmit, and/or otherwise have access to Cardholder information, Card Information, and/or Transaction Information, Sponsored Merchant assumes full responsibility and liability for such third-party’s compliance with this Agreement, the Security Standards, and Applicable Law. Furthermore, neither Sponsored Merchant nor any such third party shall request CVV2 for card present transactions. Payment Facilitator, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which shall be the sole responsibility and liability of Sponsored Merchant. Sponsored Merchant further agrees to notify Payment Facilitator of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks and are compliant with all applicable Security Standards. Acquirer further reserves the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and to terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
- If Sponsored Merchant discovers or at any time has reason to suspect that a Data Compromise Event has occurred, Sponsored Merchant must immediately notify Payment Facilitator and fully cooperate, at its expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if Sponsored Merchant is undergoing a forensic investigation at the time it signs the Sponsored Merchant Application, it must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules shall be the exclusive responsibility of Sponsored Merchant.
- Sponsored Merchant acknowledges that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on its systems or those of any third party referenced in Section 10c may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Without limiting Sponsored Merchant’s liabilities under any other provision hereof, Sponsored Merchant agrees to fully indemnify Payment Facilitator, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, or any third parties associated with Sponsored Merchant’s actual or alleged failure, or the actual or alleged failure of any third party referenced in Section 10c, to comply with the Security Standards or the occurrence of any Data Compromise Event.
- In the event Sponsored Merchant operates a website capable of accepting Cards, then, in addition to all other obligations specified herein, Sponsored Merchant agrees to maintain, display, and abide by a Cardholder data privacy policy.
- Sponsored Merchants acknowledge that Payment Facilitator shall have no obligation to migrate or export Cardholder information, Card Information, and/or Transaction Information, including to Sponsored Merchant, at any time, including at the termination of this Agreement.
- Authorized Users
- To the extent Sponsored Merchant is granted electronic access to any of Acquirer’s systems or portals, Sponsored Merchant shall be responsible for (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying Payment Facilitator of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such actions were not authorized by Sponsored Merchant.
- Sponsored Merchant is responsible for the acts and omissions of its owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services. Without limiting the preceding sentence, such acts and omissions will be viewed as acts and omissions of Sponsored Merchant for purposes of determining if there has been a breach of this Agreement by Sponsored Merchant and the availability of any right or remedy related to such breach.
- Pricing and Payment
- Sponsored Merchant agrees to pay Processing Fees in the amounts specified in the fee schedule provided to and/or selected by Sponsored Merchant contemporaneously with Sponsored Merchant’s acceptance of this Agreement, as the same may be amended from time to time pursuant to this Agreement. The Processing Fees are qualified in all respects by the other terms of this Agreement, including the assumptions referenced herein.
- Except as otherwise set forth in a Sponsored Merchant Agreement, if a Transaction is revoked, Sponsored Merchant will incur a $5 ACH return fee. If a Transaction is disputed (e.g., a chargeback is initiated, including an ACH chargeback pursuant to reason code R05, R07, R08, R10, R29, R51, or R52), Sponsored Merchant will incur a $25 dispute fee. Following a revocation or dispute of a Transaction, no subsequent sales Transactions or entries should be initiated by the Sponsored Merchant associated with such Transaction.
- Sponsored Merchant is responsible for payment of refunds, Chargebacks, Processing Fees, indemnified losses, assessments, fees and/or other amounts charged by or payable to Acquirer, the Payment Networks, and/or other parties related to or associated with Sponsored Merchant’s use of the Services, its Transactions, and/or its processing activity (such fees and other amounts charged by or payable to any person other than Payment Facilitator, the “Third-Party Charges”). Acquirer may at any time, with or without notice, collect such amounts (a) pursuant to Section 8 of this Agreement; (b) by demanding immediate payment; (c) by debiting the Settlement Account or any Reserve Funds; or (d) by subtracting such amounts from future settlements.
- Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or parties other than Payment Facilitator.
- In addition, Acquirer may amend, revise, change, or supplement the Processing Fees by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to the Payment Networks or other third parties) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation.
- Sponsored Merchant agrees with, and represents and warrants to, Acquirer that such fee schedule constitutes an adequate Fee Disclosure for purposes of the Operating Rules and Applicable Law.
- Sponsored Merchant acknowledges and agrees that it shall be solely responsible for, and the Processing Fees do not cover or include: (a) fines, loss allocations, liability assessments, penalties, and/or similar charges imposed on or assessed against Sponsored Merchant or Acquirer by third parties (including the Payment Networks) and/or (b) all communication expenses associated with its processing activity.
- If Sponsored Merchant does not pay any refunds, Chargebacks, Processing Fees, indemnified losses, or other amounts payable to Acquirer or the Payment Networks when due, such amounts will accrue interest at the lesser of 1.5% per month or the highest amount permitted by applicable law.
- Taxes
- Sponsored Merchant shall be solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of Sponsored Merchant’s goods or services or receipt of donations. Unless Sponsored Merchant is otherwise exempt (and can prove such exemption to Acquirer’s satisfaction), Sponsored Merchant agrees to pay all taxes imposed on the services, equipment, or other property provided to Sponsored Merchant pursuant to this Agreement.
- Chargebacks
- Sponsored Merchant has full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with its Transactions.
- If Sponsored Merchant has reason to dispute or respond to a Chargeback, then Sponsored Merchant must do so by the date provided on the applicable Chargeback notice. Payment Facilitator, Processor, and Bank shall have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback.
- If Acquirer, in its sole discretion, determines that Sponsored Merchant is experiencing excessive Chargebacks, then it may (i) with notice, increase the Processing Fees; (ii) without notice, establish or increase the Reserve Funds; (iii) without notice, suspend the Services; or (iv) without notice, terminate this Agreement.
- Sponsored Merchant shall not ask or require that a Cardholder waive a right to dispute a transaction.
- Indemnification
- Sponsored Merchant shall indemnify and hold Payment Facilitator, Processor, and Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by any of them arising out of: (i) Sponsored Merchant’s acts or omissions, or those of its owners, employees, consultants, contractors, agents, officers, and directors, whether or not those acts or omissions were authorized by Sponsored Merchant (including, without limitation, any obligation of Payment Facilitator to indemnify Processor or Bank with respect to any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (ii) Sponsored Merchant’s Transactions or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (iii) Sponsored Merchant’s breach of this Agreement or violation of Applicable Law or Operating Rules; (iv) the state or configuration of Sponsored Merchant’s equipment, including, without limitation, Sponsored Merchant’s failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; and/or (v) Sponsored Merchant’s use of third-party services or service providers, including gateways, value added resellers, and independent software vendors.
- Without limiting the preceding subsection, in the event that Payment Facilitator, Processor, or Bank is named as a party to any claims, litigation, proceeding, arbitration, or other legal process commenced by a third party arising out of or relating to any act or omission by Sponsored Merchant, Sponsored Merchant shall indemnify, protect, and hold harmless Payment Facilitator, Processor, and Bank with respect to any and all liability associated with such claims, litigation, proceeding, arbitration, or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
- Obligation to Report Statement Discrepancies
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
Statements provided online shall be deemed received the first day they are available online. - YOU ACKNOWLEDGE AND AGREE THAT NEITHER PAYMENT FACILITATOR, PROCESSOR, NOR BANK SHALL BE LIABLE OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO PAYMENT FACILITATOR IN WRITING WITHIN FORTY FIVE (45) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
- You acknowledge and agree that you shall reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit or other means from your Settlement Account or the Reserve Funds.
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
- Limitation of Liability and Disclaimer of Warranties
- UNDER NO CIRCUMSTANCES SHALL ACQUIRER’S AGGREGATE FINANCIAL RESPONSIBILITY FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO PAYMENT FACILITATOR BY SPONSORED MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, AND/OR BANK BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
- FOR PURPOSES OF THIS SECTION 17, FEES OR CHARGES OF THE PAYMENT NETWORKS OR OTHER THIRD PARTIES PASSED THROUGH TO CUSTOMER PURSUANT TO THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, OR BANK, OR ANY OF ITS OR THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY SPONSORED MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK SHALL NOT BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
- PAYMENT FACILITATOR, PROCESSOR, AND BANK MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, EQUIPMENT AND/OR SERVICES PROVIDED HEREUNDER AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SPONSORED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, AND/OR TRADE.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK DO NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES, EQUIPMENT, SOFTWARE, AND/OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; (C) THAT A PRODUCT WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULTS; (D) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS; OR (E) THAT A PRODUCT WILL OPERATE WITHOUT INTERRUPTION.
- Underwriting, Monitoring, and Auditing Rights
- Sponsored Merchant, on behalf of itself and its principals and beneficial owners, acknowledges and agrees that Acquirer may request and obtain external reports, including background checks, credit checks, banking relationship reports, financial history, and credit reports from credit reporting agencies, in connection with the consideration of the Sponsored Merchant Application or at any time thereafter. Sponsored Merchant further acknowledges that its Sponsored Merchant Application may be rejected by Acquirer and that Acquirer shall not have any liability associated with such rejection.
- Sponsored Merchant agrees to promptly furnish Acquirer and any requesting Payment Network with information and documents reasonably necessary to evaluate Sponsored Merchant’s financial condition and business practices upon request. Furthermore, with notice and during Sponsored Merchant’s normal business hours, any of Acquirer’s respective representatives or the representatives of any Payment Network may visit Sponsored Merchant’s business premises to examine Sponsored Merchant’s operations, activities, and/or books and records to the extent necessary to evaluate Sponsored Merchant’s compliance with this Agreement or to the extent necessary for Payment Facilitator to meet its obligations under the Processing Agreements or for the Acquirer to meet its obligations under the Operating Rules.
- Sponsored Merchant agrees to provide Payment Facilitator advance written notice of any actual or anticipated (a) material change in Sponsored Merchant’s products or services, business practices, or the manner in which Sponsored Merchant accepts Cards; (b) change to Sponsored Merchant’s legal form, legal name, trade name, or mailing address; or (c) changes to anticipated Transaction amounts or volume.
- Sponsored Merchant agrees to provide Acquirer with all “know your customer” information that it reasonably requests from time to time, including, without limitation, any information (a) necessary to meet a person’s obligations under, inter alia, United States anti-terrorism or anti- money laundering laws or (b) Payment Facilitator is required to diligence, obtain and/or verify under any of the Processing Agreements or under the Operating Rules (including the names and country of domicile of each of the Sponsored Merchant’s principals and reports of all Transactions).
- Sponsored Merchant shall provide such information within twenty-four (24) hours of a request for the same. Without limiting the foregoing, Sponsored Merchant shall, on an ongoing basis (and at least quarterly), provide Payment Facilitator with each of its office addresses, uniform resource locaters, “doing business as” names, as well as complete descriptions of all goods and services provided by such Sponsored Merchant.
- Reporting
- Sponsored Merchant acknowledges that, under the Operating Rules of the Payment Networks, certain Sponsored Merchant activity and terminations of Sponsored Merchant processing agreements may result in Acquirer’s reporting merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). Sponsored Merchant, on behalf of itself and its principals (and with such principals’ explicit authorization), hereby consents to such reporting and waives any claim related to the same, even in instances where Sponsored Merchant or its principals believe that reporting to have been improper or in error.
- Relationship of the Parties
- Sponsored Merchant designates Acquirer as its agent to receive payments for Transactions processed pursuant to this Agreement. Payment Facilitator, Processor, and/or Bank, however, shall not be considered a partner or fiduciary to Sponsored Merchant, and nothing in this Agreement or the rendition of Services related to this Agreement shall be deemed to create a joint venture, partnership, and/or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm’s length commercial relationship.
- Updates to Settlement Account
- If Sponsored Merchant intends to change its Settlement Account, it must give no fewer than fifteen (15) days’ prior written notice to Payment Facilitator and receive Payment Facilitator written approval of the change. Failure to provide the notice and obtain the approval required in this Section may result in Acquirer’s inability to settle Transaction proceeds to Sponsored Merchant, and may result in the misdirection or loss of the same. Sponsored Merchant shall bear sole responsibility for any such loss and shall have no right of recovery against Payment Facilitator, Processor, and/or Bank associated with such misdirection or loss.
- Reserve Account and Security Interest
- Payment Facilitator, Processor, and/or Bank may at any time, whether at the inception of this Agreement or thereafter (including at the time of termination of this Agreement), require the establishment of Reserve Funds to satisfy Sponsored Merchant’s current or anticipated obligations hereunder, including, without limitation, its obligations with respect to refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Further, at any time during the term of this Agreement or at its termination, Payment Facilitator, Processor, and/or Bank may increase the amount of Reserve Funds established as described herein. All decisions relating to whether to establish one or more Reserve Funds, set the amount of, or increase the Reserve Funds will be in Payment Facilitator, Processor, and/or Bank’s discretion.
- Reserve Funds may be funded by (i) debiting the amount of Transactions that would otherwise be payable to Sponsored Merchant under this Agreement; (ii) demanding funds from Sponsored Merchant; or (iii) debiting the Settlement Account. If Payment Facilitator, Processor, and/or Bank makes a demand for funds pursuant to this Section 22b, Sponsored Merchant shall promptly transfer the amount of funds demanded.
- Reserve Funds may be used at any time to satisfy Sponsored Merchant’s obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer and/or the Payment Networks.
- Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on Sponsored Merchant’s account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy Sponsored Merchant’s current or anticipated obligations under this Agreement, the Operating Rules, and/or Applicable Law.
- Until the expiration of the period referenced in the preceding subsection, Sponsored Merchant shall have no ownership interest in or right to the Reserve Fund. Rather, the Reserve Funds shall be the exclusive property of Payment Facilitator, Processor, and/or Bank. Furthermore, Sponsored Merchant shall have no right to receive interest on any funds maintained in any of the Reserve Funds, which shall be the exclusive property of Payment Facilitator, Processor, and/or Bank.
- Without in any way limiting the foregoing, and merely as an additional form of security, Sponsored Merchant hereby further grants Payment Facilitator a security interest in (a) the Reserve Funds; and (b) the proceeds associated with any Transaction. Payment Facilitator may enforce its security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until Sponsored Merchant satisfies all its obligations to Acquirer. Sponsored Merchant further agrees to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Agreement.
- Holdback Rights
- In addition to any of the other rights granted to Acquirer hereunder, in the event that Acquirer, at any time during the term of this Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, or excessive Chargebacks) or (b) to enable Payment Facilitator or Processor to exercise its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. To the extent (i) the investigation conducted by Acquirer with respect to the unusual, suspicious, or risk-exposing activity determines that such activity is reasonably likely to result in amounts being due from you to Acquirer, and (ii) Acquirer requires the establishment, replenishment, or increase of one or more Reserve Funds in connection therewith, then the funds held pursuant to this Section 23 may be used to fund such Reserve Funds.
- Equipment
- Payment Facilitator, Processor, and Bank make no representations or warranties regarding the compatibility of third-party products and services with Acquirer’s systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer’s respective systems, you understand that a separate agreement may be required with the third-party provider in order to obtain such software, services, or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
- Sponsored Merchant shall be responsible for any fines, penalties, claims, demands, or new or increased fees (including interchange) that result from Sponsored Merchant’s (a) use of value added reseller, independent software vendor, gateway, point of sale systems, or any other software, hardware, or service not provided by us; (b) failure to maintain the most current version of software that has been certified by Payment Facilitator, Processor, and Bank as being compatible with the their respective systems; or (c) misuse of software that has been certified as compatible with Acquirer’s respective systems. Notwithstanding anything in this Section 24b, Sponsored Merchant shall not use any third-party point of sale systems, or any other device or method used for the purpose of obtaining credit or debiting a designated account (including any Card), without the prior written consent of Payment Facilitator.
- To the extent that Sponsored Merchant elects to purchase, lease, or use processing equipment from Acquirer, Sponsored Merchant agrees to pay the stated purchase price or lease amounts, along with all applicable taxes and shipping costs, and agrees that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to Sponsored Merchant’s Settlement Account.
- Equipment provided by Acquirer may only be used for purposes of this Agreement and the receipt of Services pursuant to this Agreement. Sponsored Merchant shall keep any such equipment in a good state of repair, normal wear and tear excepted, and shall follow all instructions regarding the use and maintenance thereof. Sponsored Merchant shall not, and shall not permit others to, alter, modify, and/or deface any such equipment or inscribe or etch anything thereon or attach or affix anything thereto. With respect to leased equipment, title to such equipment remains with the provider at all times, and Sponsored Merchant acquires no right, title, or interest in any such other than the right to use equipment to receive the Services for the period during which the provided thereof permits Sponsored Merchant to use the same. Sponsored Merchant must give Acquirer access to any such equipment at all times, and Acquirer may repair or replace any such equipment at any time. With regard to any equipment provided to Sponsored Merchant, Sponsored Merchant shall bear all risk of loss, damage, destruction, theft, and/or similar to such equipment from any cause whatsoever (each a “Loss Event”) during the term hereof and until such equipment has been returned to the provider thereof. Sponsored Merchant shall return such equipment, at its risk and expense, upon the earlier of the expiration or termination hereof. Sponsored Merchant shall immediately notify Payment Facilitator upon the occurrence of any Loss Event. Sponsored Merchant shall not distribute, sell, transfer, share, sublease, rent and/or give away any such equipment or any interest therein or use, or permit the use of, such equipment by or on any third party’s behalf, except that Sponsored Merchant may allow its customers to use equipment in the course of completing a Transaction.
- Confidentiality and Use of Data
- Sponsored Merchant shall use Card Information solely to receive Services under this Agreement. Under no circumstances shall Sponsored Merchant sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
- Except in response to a validly served subpoena, Sponsored Merchant will not provide Card Information to anyone except to Acquirer, the Payment Networks, or Sponsored Merchant’s agents that have been approved by Processor and are properly registered with Payment Networks for purposes of assisting Sponsored Merchant in completing Transactions. Should Sponsored Merchant receive a subpoena that encompasses Card Information, Sponsored Merchant will notify Payment Facilitator in writing of its receipt of such a subpoena as soon as practicable.
- Sponsored Merchant agrees to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information, Transaction Information, and Cardholder information; (d) any other non-public information regarding any aspect of Acquirer’s respective businesses made available to, or encountered by, Sponsored Merchant under the auspices of this Agreement (“Acquirer Confidential Information”); or (e) other information Payment Facilitator is required to keep confidential. Acquirer Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing or business development plans, technical information, personnel information, and trade secrets.
- Should Sponsored Merchant receive any Acquirer Confidential Information belonging to Acquirer, Sponsored Merchant agrees to protect such confidential information equally to its own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. Sponsored Merchant agrees to return Acquirer’s respective confidential information either upon the termination of this Agreement for any reason, or upon earlier request from Acquirer.
- To the extent permitted by Applicable Law and the Operating Rules, Sponsored Merchant authorizes Acquirer to disclose information regarding Sponsored Merchant to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. Sponsored Merchant authorizes Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of Services under this Agreement. Sponsored Merchant further authorizes Acquirer to provide information about Sponsored Merchant in response to requests for such information from any government body or regulatory authority.
- Notwithstanding anything else in this Agreement, and without otherwise limiting Acquirer’s use of such information, all Card Information, information related to Transactions or Cardholders, and information related to Sponsored Merchant, may be used by Payment Facilitator, Processor, and/or Bank and its or their respective affiliates and designees: (a) to provide Services; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or services; (d) in the course of any sale or reorganization of any of Acquirer’s respective business; (e) to comply with Applicable Laws; (f) for disclosure to credit reporting agencies and other financial institutions; and (g) as otherwise permitted by Applicable Laws.
- Amendments and Waiver
- Payment Facilitator may amend, revise, change, or supplement this Agreement by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to changes to the Operating Rules or Applicable Law) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Rules or Applicable Law may be made on less than thirty (30) days’ notice and shall not be grounds for termination of this Agreement.
- Payment Facilitator will not be deemed to have waived any provision of this Agreement by failing to promptly enforce the same, and no waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision of this Agreement or the same provision on any other occasion.
- Notices; Electronic Notice
- All notices under this Agreement to Payment Facilitator, Processor, and/or Bank must be in writing and delivered via hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices to Payment Facilitator, Processor, and/or Bank must be sent to the addresses respectively designated on the Sponsored Merchant Application for those entities, and will be deemed effective upon receipt. Acquirer may provide Sponsored Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Sponsored Merchant Application (or such other address as Sponsored Merchant may provide); (b) electronically, through the Sponsored Merchant portal or through any other means of electronic communication maintained by Acquirer which Sponsored Merchant may access; or (c) electronically, via any email address designated by Sponsored Merchant. Sponsored Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the Internet for so long as this Agreement is in effect and until all of its obligations hereunder have been satisfied in full. Notices delivered through any of the foregoing means shall include notice provided on statement messages appearing on periodic processing statements.
- Choice of Law and Venue; Time and Procedure for Assertion of Claims
- All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation, or enforceability of the choice of law and venue provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
- Without in any way limiting Section 30 (Arbitration), with respect to any action arising out of, relating to, or in connection with this Agreement, Sponsored Merchant and all individuals executing this Agreement in any capacity hereby consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in the State of New York.
- Each party agrees to provide the other prompt notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon either party’s election, the parties will participate in non-binding mediation before a mutually agreed mediator. Any controversy, claim, or dispute that is not resolved through the procedures set forth above within sixty (60) days following the initial notice (or such longer period as the parties may agree) will be resolved pursuant to arbitration pursuant to Section 30 of this Agreement.
- Neither party may bring a claim more than two (2) years after the underlying cause of action first accrues.
- Attorneys’ Fees
- Sponsored Merchant agrees to reimburse Payment Facilitator for all attorneys’ fees or other costs incurred by it in enforcing any provision of this Agreement against Sponsored Merchant, or in obtaining any sums due under this Agreement from Sponsored Merchant, regardless of whether those fees are incurred in connection with a court proceeding, private dispute resolution, or outside a formal dispute resolution proceeding.
- Arbitration
- ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief.
- The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in State of New York (although, for the convenience of the Sponsored Merchant or guarantor (as applicable), any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Sponsored Merchant and guarantor (if applicable) shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the New York Supreme Court at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 30 is found invalid or unenforceable, the other parts of this Section 30 shall still apply.
- SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
- Remedies Cumulative
- The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative.
- Assignment; Successor Responsibility
- The Bank may assign this Agreement without Sponsored Merchant’s consent. Processor may assign this Agreement to another transaction processor approved by Bank. Payment Facilitator may assign this Agreement to another payment facilitator, to Processor, to one of its affiliates, by operation of law, or in connection with the sale of all or substantially all of its assets. Sponsored Merchant may not assign this Agreement without the express written consent of Payment Facilitator, except as otherwise provided in the Processing Agreements. For purposes of this Agreement, it shall be deemed an assignment by Sponsored Merchant of this Agreement to effectuate any sale or transfer of the equity interests of Sponsored Merchant’s business such that the equity holders listed in the Sponsored Merchant Application collectively hold less than 50% of the equity interests after such sale or transfer. This Agreement will be binding on each party’s successor(s) and/or permitted assigns.
- Third Party Beneficiaries
- Processor and Bank are third-party beneficiaries to this Agreement and may enforce the terms hereof, including those rights and privileges belonging to “Acquirer.” In addition, the Payment Networks are third-party beneficiaries of this Agreement and shall have the rights, but not any obligation, necessary to fully enforce the terms of this Agreement against Sponsored Merchant. There are no other third party beneficiaries to this Agreement.
- Force Majeure
- Payment Facilitator, Processor, and/or Bank shall not be liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, governmental actions, strikes, telecommunications failures, equipment failures, network failures, or other causes beyond such person’s reasonable control.
- Entire Agreement; Severability
- This Agreement constitutes the complete and final agreement between the parties and supersedes all prior oral or written agreements related to its subject matter. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by all parties hereto. If any provision of this Agreement is deemed unlawful or unenforceable, then it shall be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of the Agreement, which shall continue in full force and effect.
- Survival
- Termination of this Agreement shall not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive or be perpetual of irrevocable. Such provisions, including, without limitation, Sections 1, 3f, 5g, 8c, 8f, 9 through 17, 19 through 25, 26b, and 27 through 35 shall survive the expiration or termination of this Agreement.
- Press Release
- Payment Facilitator may issue press releases regarding the parties’ relationship hereunder, after this Agreement becomes effective. Sponsored Merchant shall not make any such public disclosure without Payment Facilitator’s prior written consent.
- Electronic Signature
- This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. A signature or other indication of acceptance received electronically or via facsimile (including by checking a box or clicking a link stating, “I Agree,” or words to similar effect) shall be legally binding for all purposes and equally effective as a wet ink signature.
- Consent to Receipt of Electronic Communications
- From time to time we may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this Agreement confirms your ability and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
- Under this Consent, we may provide all Communications electronically by email or by making them accessible via our websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Agreement, our Privacy Policy, and our Software as a Service Agreement) (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, and (4) all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
- To access and retain the electronic Communications, you will need the following:
- A computer or mobile device with Internet or mobile connectivity.
- For desktop website-based Communications:
- Recent web browser that includes 256-bit encryption;
- The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and
- Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
- For application-based Communications:
- A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
- The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
- Access to the email address used to create an account for the Services.
- Sufficient storage space to save Communications and/or a printer to print them.
- If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add support@paymentbrands.com to your email address book.
- You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to 10133 Sherill Boulevard, Suite 120, Knoxville, Tennessee 37932 (“Company Address”) within 180 days of the date of the original Communication, specifying in detail the Communication you would like to receive in paper form. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
- You may withdraw your consent to receive electronic Communications at any time, by writing to the Company Address. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Company will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
- You can change your email address by writing to the Company Address. You may also be able to change your email address yourself through the Services.
Addendum 1: MERCHANT SERVICES AGREEMENT FOR SUB- MERCHANTS
- Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause employees and third parties acting as Sub-merchant’s agent (“Agents”) to comply, with each Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks, including with respect to the use of an Association’s mark(s) (collectively "Operating Regulations"). Such Operating Regulations are incorporated by reference, and will control with respect to any conflict in terms between this Agreement and such Operating Regulation. Sub-merchant acknowledges and agrees that it is not a third-party beneficiary of any Operating Regulation, however, an Association may be a third-party beneficiary of this Agreement, and that certain Operating Regulations govern the relationships between various parties such as the Associations, Processor, Member Bank, and/or other entities (e.g., partners, etc.), and that any failure by Processor to abide by such Operating Regulation does not provide the basis for a breach of the Agreement claim by Merchant or any other third party. The Associations make excerpts of their Operating Regulations available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html; https://usa.visa.com/support/consumer/visa-rules.html; https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf; https://www.americanexpress.com/merchantopguide. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Sub-merchant hereby authorizes Acquirer to conduct background checks on Sub-merchant, including but not limited to credit checks and banking and financial history investigations, and share any information required by an Association. Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC), and provide all necessary documentation to Acquirer promptly upon request. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers. If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub- merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions. Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.
- Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data, including CVV2, in plain view when mailed; ii) add any tax or surcharge to transactions, except in compliance with Operating Regulations and applicable law; iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant; v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
- Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer or an affiliate of Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer or an affiliate of Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer or affiliate of Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer or an affiliate of Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer or an affiliate of Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer or an affiliate of Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
- Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.
- Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
- EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub- merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then- current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub- merchant.
- Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.
Addendum 2: TERMS OF USE FOR APPLE PAY
- Use of Apple Pay. Apple Pay is offered exclusively by Apple. We do not own, operate, or control Apple Pay, and we are not responsible for any service provided to you by Apple or by any third party engaged by Apple. We are also not responsible for any information or other services provided to you by Apple or any other third parties associated with the Apple Pay service. We are not liable for any failure or performance of the Apple Pay service.
- Registration and Reporting to Apple. You acknowledge and agree that Ministry Brands can share information with Apple to enable registration for Apple Pay and regarding your participation therein, including your name and contact information. Apple may retain and use the information we provide for any lawful purpose. You agree that you will provide us with all required documentation to facilitate such registration. You are responsible for the accuracy and completeness of the information and documents that you provide to us in connection with the registration.
- Non-Discrimination. You agree that (i) you do not discriminate against any person or group of people in your hiring and employment practices, codes of conduct, programs, services or in any other aspect of your operations or activities on the basis of that person or group of people’s personal characteristics or attributes (such discrimination including, but not limited to, hiring and employment policies or practices that discriminate against a person or group of people on the basis of their sexual orientation or gender identity, even if such policies and practices are permitted under applicable law) (“Category Discrimination"); or (ii) you are a religious or faith-based organization exempt from applicable laws that otherwise prohibit such Category Discrimination.
Effective May 14th 2024 to July 1st 2024
DownloadTable of Contents
- Definitions
- “Acquirer” refers to Payment Facilitator, Processor, and/or Bank, any of which shall have the authority to exercise rights belonging to the Acquirer hereunder.
- “Addendum” (and the plural, “Addenda”) refers to each Addendum attached hereto, or any other Addendum otherwise executed or agreed to between the parties.
- “Agreement” refers to these terms and conditions, along with the attached Addenda and the Sponsored Merchant Application, as any of the same may be amended from time to time pursuant to these terms.
- “American Express” refers to American Express Travel Related Services Company, Inc. or its successors or assigns.
- “Applicable Law” refers to all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance, including all laws in both the Cardholder and the Sponsored Merchant’s jurisdictions.
- “Bank” refers to the acquiring bank identified in the Sponsored Merchant Application, or such other acquiring bank(s) as Payment Facilitator or Processor may contract with to provide sponsorship with the Payment Networks, as well as any successors and assigns of such acquiring bank(s).
- “Card” refers to an account, or evidence of an account, authorized and established between a Cardholder and a Payment Network, or representatives or members of a Payment Network, that Sponsored Merchant accepts from Cardholders as payment for a good or service.
- “Card Information” refers to all information related to a Cardholder or Card obtained by Sponsored Merchant in connection with a Transaction, including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, or account balances.
- “Cardholder” refers to the person or entity to whom a Card is issued or who is authorized to use a Card.
- “Chargeback” refers to the reversal of any Transaction pursuant to the Operating Rules for whatever reason.
- “Data Compromise Event” refers to any event that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information, Cardholder information and/or Card Information.
- “Discover” refers to Discover Financial Services, LLC or its successors or assigns.
- “Mastercard” refers to Mastercard International Incorporated or its successors or assigns.
- “Operating Rules” refers to all rules, bylaws, programs, and regulations of the Payment Networks, as the same are amended from time to time, including, without limitation, the provisions thereof governing or otherwise applicable to “Merchants,” “Sponsored Merchants,” or “Submerchants.” The Payment Networks make excerpts of their Operating Rules available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html;
https://usa.visa.com/support/consumer/visa-rules.html;
https://www.americanexpress.com/merchantopguide;
https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf.
The Operating Rules are explicitly incorporated by reference into this Agreement. - “Payment Facilitator,” “Ministry Brands Holdings, LLC,” or “we” refers to Ministry Brands Holdings, LLC.
- “Payment Network” refers to each of Visa, Mastercard, American Express, Discover, and any card network issuing credit or debit cards, and, for purposes of this Agreement, further includes the Payment Card Industry Security Standards Council.
- “PCI DSS” refers to the Payment Card Industry Data Security Standards.
- “Processing Fees” refers to the fees and charges set forth on the fee schedule that is part of the Sponsored Merchant Application and this Agreement or any Addenda thereto, as modified or amended from time to time, whether by the Payment Networks or by Acquirer pursuant to this Agreement, including, without limitation, by messages included on any processing statement.
- “Processor” refers to Worldpay LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384, and its successors and assigns, or such other payment processor as Payment Facilitator may contract with to provide payment processing functionality.
- “Reserve Funds” refers to funds placed in one or more non-segregated and non-interest bearing accounts established by Acquirer in accordance with this Agreement to ensure payment of all obligations or anticipated obligations hereunder, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Security Standards” refers to all rules, regulations, or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, PCI DSS, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and any successor rules, regulations or standards, in each case, as any of the same may be amended from time to time.
- “Services” refers to those services provided by Acquirer, necessary and required to facilitate the authorization, processing, and settling of Transactions.
- “Settlement Account” refers to the account maintained by Sponsored Merchant at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Sponsored Merchant” or “you” refers to the legal entity identified in the Sponsored Merchant Application.
- “Sponsored Merchant Application” refers to the application that Sponsored Merchant completed and signed (including by electronic signature or otherwise electronically indicating acceptance of the terms) and which is subsequently accepted by Acquirer, whether evidenced by the execution of this Agreement or by the processing of presented Transactions.
- “Transaction” refers to any interaction between a Cardholder and a Sponsored Merchant in which a Cardholder uses a Card to purchase Sponsored Merchant’s goods or services or donate to Sponsored Merchant and which results in activity on the Cardholder’s account.
- “Transaction Information” means any data or information resulting from a Transaction, including payment processing-related information collected or stored by Processor or Payment Facilitator, including the price paid for products or services, data, time, approval, unique transaction number, store identifier, and may include Card Information and Cardholder information.
- “Visa” refers to Visa Inc. or its successors or assigns.
- Services
- Subject to Applicable Law and the Operating Rules, Payment Facilitator (or its agents, contractors, or designated representatives) will provide the Services to Sponsored Merchant pursuant to the terms of this Agreement. Sponsored Merchant agrees to abide by, and to use the Services in strict compliance with, Applicable Law, the Security Standards, and the Operating Rules.
- Upon request, Payment Facilitator, Processor, and/or Bank may elect to provide certain Automated Clearing House (“ACH”) processing services to Sponsored Merchant at the rates specified in the Sponsored Merchant Application and under the terms set forth in this Agreement. To the extent Sponsored Merchant uses such ACH processing services, it agrees to abide by the National Automated Clearing House Association (“NACHA”) rules and regulations, as the same may be amended from time to time.
- Sponsored Merchant Representations and Responsibilities
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- The person signing the Sponsored Merchant Application has full legal power and authority to enter into this Agreement;
- Sponsored Merchant meets the definition of, and has satisfied the requirements applicable to, “Merchants” (taking into account the fact that Sponsored Merchant is authorized to accept cards pursuant to this Agreement rather than a merchant agreement), “Sponsored Merchants,” and/or “Submerchants” under the Operating Rules;
- Each statement made by Sponsored Merchant on the Sponsored Merchant Application is and, except as has been disclosed in writing to Payment Facilitator, remains true;
- Sponsored Merchant has its principal place of business in, is located in, and has been formed (if Sponsored Merchant is an entity or organization) under the laws of, the United States;
- The Transaction is legal and genuine, was conducted in accordance with this Agreement, and arises from a bona fide sale of goods or services by, or donation to, Sponsored Merchant (and not by any other entity) in the United States for which, to the extent required by the Operating Rules, authorization was obtained; except as otherwise permitted by the Operating Rules, and where applicable, the goods have been shipped or delivered and/or the services performed; and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose;
- The Transaction is not one that Sponsored Merchant knows or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and the Sponsored Merchant, or that is otherwise unlawful, illegal, or impermissible under this Agreement, Applicable Law or the Operating Rules;
- All information and data provided by Sponsored Merchant in connection with the Transaction is true, correct, and accurate;Sponsor Merchant grants Acquirer the right to provide the same to the Payment Networks; and Sponsor Bank warrants that the provision of such information to the Payment Networks complies with Applicable Law and the terms of any applicable privacy policy(ies) or agreements;
- Sponsored Merchant has taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder;
- The Transaction is not subject to liens, encumbrances, disputes, set- off, or counterclaim (other than ordinary sales taxes);
- The Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules) and the Transaction has not been previously charged back to the Acquirer and subsequently returned to the Sponsored Merchant; provided, however, that Sponsored Merchant may pursue payment from the customer outside of the payment card ecosystem;
- Sponsored Merchant has not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction;
- The Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible;
- The Transaction does not arise from the dishonor of a Cardholder’s personal check;
- Sponsored Merchant has the legal right to sell the goods and services purchased by Cardholder or to accept the donation from the Cardholder via the Transaction and is providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and services, as applicable;
- Sponsored Merchant has accurately provided and has not altered or manipulated its “doing business as” name, country location (which name and country is the same as that disclosed to Cardholders in connection with a Transaction), the description of its business for selection of an appropriate Sponsored Merchant category code/Card acceptor business code (“MCC”), and, as applicable, its unique merchant identification number (“MID”) (defined below) in the authorization request/message and clearing record/message for such Transaction;
- Sponsored Merchant is not operating a business prohibited by the Operating Rules and has correctly identified for Payment Facilitator the MCC that most closely reflects the Sponsored Merchant’s primary business in accordance with applicable MCC guidance from the Payment Networks;
- Sponsored Merchant has made no representation or agreement for the issuance of refunds except as stated in Sponsored Merchant’s refund policy;
- Sponsored Merchant is responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to Payment Facilitator, and/or for any dispute Transaction or credit and has made clear to each Cardholder that the Sponsored Merchant is responsible for the Transaction (including the delivery of goods or provision of services that are the subject of the transaction, if applicable) and for customer service and dispute resolution;
- Sponsored Merchant has not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and
- Any Transaction submitted to Payment Facilitator to credit a Cardholder’s account represents a refund for a Transaction previously submitted to Payment Facilitator.
We reserve the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
- Subject to Applicable Law and the Operating Rules, Sponsored Merchant agrees to accept all categories of Visa and Mastercard Cards unless Sponsored Merchant has notified Payment Facilitator on the Sponsored Merchant Application of its election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. Furthermore, Sponsored Merchant shall not engage in, and shall maintain a policy against engaging in, any practice that discriminates against or discourages the use of any Card or Card Issuer in favor of another Card or Card issuer, except in full compliance with the Operating Rules.
- Except to the extent permitted by both Applicable Law and the Operating Rules and as authorized in writing by Payment Facilitator, Sponsored Merchant shall not (i) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); (ii) add any tax to Transactions unless Applicable Law expressly requires such addition (in which case the tax must be included in the Transaction amount and not collected separately); or (iii) set minimum or maximum transaction amounts.
- Sponsored Merchant must not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
- Sponsored Merchant shall maintain a written refund policy and shall disclose such policy to Payment Facilitator and all its customers (including customers making purchases online by displaying such policy on the website) consistent with Applicable Law and the Operating Rules. The amount of any refund shall not exceed the original Transaction except to the extent a Sponsored Merchant agrees to reimburse a Cardholder for return shipping. The refund policy with respect to any Card must be at least as favorable as Sponsored Merchant’s refund policy with respect to other payments products.
- Subject to Applicable Law, the Operating Rules, and the Security Standards, Sponsored Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer upon request from time to time.
- Sponsored Merchant may not bill or collect from any Cardholder for any purchase or payment on a Card unless a Chargeback has been exercised, the Sponsored Merchant has fully paid for such charge, and it otherwise has the right to do (including under Applicable Law).
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- Processing Agreements; Certain Payment Network Terms
- Sponsored Merchant acknowledges and agrees:
- This Agreement is subject to the terms of each of Payment Facilitator’s agreements with Processor and/or Bank (collectively, the “Processing Agreements”). This Agreement does not, and may not, restrict or interfere with the right of Processor or Bank to terminate this Agreement at any time or the right of Payment Facilitator to terminate this Agreement at any time as required by the Processing Agreements.
- All obligations in or under any of the Processing Agreements that are intended to apply to Sponsored Merchant (including, without limitation, any obligations of a merchant or sponsored merchant thereunder) are hereby incorporated into this Agreement and shall apply to Sponsored Merchant. Notwithstanding anything herein to the contrary, Sponsored Merchant is not a third-party beneficiary of, has no rights under, and may not bring any claim against Processor or Bank relating to, any of the Processing Agreements or any agreement with the Payment Networks.
- This Agreement is also subject to the Operating Rules. Without limiting the preceding sentence:
- This Agreement does not limit the Operating Rules or any of Acquirer’s respective rights thereunder.
- Sponsored Merchant may not take any action that could interfere with, or prevent the exercise of, action by any of Payment Networks to (a) enforce any of the Operating Rules, (b) prohibit Payment Facilitator or Sponsored Merchant from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks or to Processor or its affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
- Notwithstanding anything herein to the contrary, to the extent required by a Payment Network, the Operating Rules of such Payment Network shall govern to the extent of any irreconcilable conflict between this Agreement and such Operating Rules.
- In the event that Sponsored Merchant submits for processing in any twelve-month period more than $1,000,000 in Visa transactions and/or $1,000,000 in MasterCard transactions (or such other amount provided by the Operating Rules as necessitating a tripartite processing agreement) (the “Threshold Amount”), and Sponsored Merchant is categorized within certain MCC does designated by the Payment Networks, Sponsored Merchant will automatically be deemed to have accepted, and will be bound by, the Merchant Agreement (set forth in Addendum 1, Merchant Services Agreement for Sub-Merchants), effective as of the date Sponsored Merchant's transaction volume exceeds the Threshold Amount, the terms of which will be independently enforceable by Processor and Bank.
- In addition to the remaining provisions of this Agreement, the following terms and conditions shall govern Sponsored Merchant’s acceptance of Cards issued by American Express:
- Sponsored Merchant expressly authorizes Payment Facilitator to submit Transactions to, and (if applicable) receive settlement from, American Express on behalf of the Sponsored Merchant.
- Sponsored Merchant authorizes American Express to receive information regarding Sponsored Merchant and its Transactions and agrees that American Express shall be entitled to use such information (i) to perform its responsibilities in connection with the program; (ii) to promote the American Express network; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communication purposes and important transactional or relationship communications from American Express. Furthermore, American Express shall be entitled to use information obtained in the Sponsored Merchant’s application to screen, communicate, and/or monitor Sponsored Merchant in connection with marketing and administrative purposes.
- Sponsored Merchant may opt out of receiving future commercial marketing communications from American Express. Sponsored Merchant agrees, however, that such an opt-out will not preclude American Express from sending important transactional or relationship communications and Sponsored Merchant may continue to receive marketing communications while American Express updates its records. In addition, Sponsored Merchant may opt out of accepting Cards (including Cards issued by American Express) at any time without directly or indirectly affecting its rights to accept other payments products.
- Sponsored Merchant acknowledges that it may be converted to a direct Card acceptance relationship with American Express if and when it becomes “High CV Merchant” in accordance with Operating Rules promulgated by American Express. Upon any such conversion, Sponsored Merchant will be bound by American Express’s then- current card acceptance agreement, and American Express will set pricing and other fees payable by Sponsored Merchant for Card acceptance.
- Sponsored Merchant shall not assign to any third party any payments due to it under this Agreement; provided, however, that Sponsored Merchant may sell and assign future Transaction receivables to Payment Facilitator, its affiliated entities, and/or any other cash advance funding source that partners with Payment Facilitator or its affiliated entities without the consent of American Express.
- Sponsored Merchant will comply with the American Express Technical Specifications as the same may be amended from time to time.
- Sponsored Merchant will comply with applicable privacy and data protection laws and provide specific and adequate disclosures to Cardholders regarding the collection, use, and processing of personal data.
- Sponsored Merchant acknowledges and agrees:
- Term; Termination
- This Agreement shall commence on the date this Agreement is accepted by Acquirer, whether by signature or by the processing of presented Transactions. Unless earlier terminated as provided in this Agreement, or except as may be provided in a contemporaneously submitted order form, the Agreement shall continue until it is terminated by either party on not less than thirty (30) days’ written notice. If Sponsored Merchant presents, and Payment Facilitator elects to process, Transactions beyond the conclusion of the Initial Term or any Renewal Term, then the terms of this Agreement will continue to govern such processing activity.
- Any Payment Network may terminate or limit this Agreement as permitted by the Operating Rules of such Payment Network.
- In addition to any other termination rights, Acquirer may terminate this Agreement (or, pursuant to clause (I) of this Section 5c, may terminate this Agreement as to any Payment Network) or any Addendum immediately, or may suspend Services or decline to process particular Transactions, with or without notice, if (A) Sponsored Merchant fails to strictly comply with any term of this Agreement; (B) Acquirer, in its sole discretion, determines that Sponsored Merchant or any affiliated entity or individual is violating the Operating Rules or Applicable Law or is engaging in suspicious, wrongful, fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Acquirer or the Payment Networks (and Payment Facilitator may also suspend Services or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (C) Sponsored Merchant, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (D) Acquirer deems Sponsored Merchant to be financially insecure; (E) Sponsored Merchant materially alters its business; (F) there is a material change in Sponsored Merchant’s processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application; (G) Acquirer receives direction from any Payment Network to terminate this Agreement; (H) Acquirer, in its reasonable discretion, determines that circumstances otherwise warrant immediate termination or suspension; (I) any Payment Network takes any of the Adverse Registration Actions or limits this Agreement pursuant to the Operating Rules thereof; (J) any of Processing Agreements are terminated; or (K) Payment Facilitator has determined it is required to terminate this Agreement by any of the Processing Agreements or Operating Rules. Furthermore, Payment Facilitator may terminate this Agreement at any time upon thirty (30) days’ written notice.
- This Agreement shall automatically terminate to the extent required by the Operating Rules.
- In addition to any other termination rights, Sponsored Merchant may terminate this Agreement if we have failed to perform a material obligation in this Agreement and such failure has not been cured for thirty (30) days after Sponsored Merchant notifies Payment Facilitator in writing of such failure.
- All Sponsored Merchant obligations with respect to Transactions processed under this Agreement shall survive any termination, including, without limitation, the obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- Non-Exclusivity
- This Agreement is non-exclusive. Sponsored Merchant may receive services, or enter into an agreement to receive services, with another merchant acquirer. Likewise, Sponsored Merchant acknowledges and agrees that Payment Facilitator may provide services to other sponsored merchants.
- Procedures for Transactions
- Within forty-eight (48) hours (or any shorter period mandated by the Operating Rules) after the completion of a Transaction Sponsored Merchant believes to be authorized by a Cardholder, Sponsored Merchant shall submit all Transaction Information therefor to Payment Facilitator for processing. Sponsored Merchant shall submit such information to Payment Facilitator, along with any other information that may reasonably be requested in connection with a Transaction, in such form as Payment Facilitator may specify from time to time. Sponsored Merchant understands that failure to submit such Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and Sponsored Merchant agrees to pay any such fees if assessed; and/or (b) compromise Sponsored Merchant’s ability to be paid for the Transaction(s).
- Sponsored Merchant shall not submit for processing: (a) any Transaction that does not involve Sponsored Merchant, or that does not originate from an interaction between Sponsored Merchant and a Cardholder intending to make a purchase from or donation to Sponsored Merchant; (b) any Transaction for which Sponsored Merchant does not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of Sponsored Merchant’s normal course of business as reflected on the Sponsored Merchant Application. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Agreement.
- Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for Sponsored Merchant that aligns with the Sponsored Merchant’s sales volume, as indicated on the Sponsored Merchant Application.
- Settlement
- Except as elsewhere provided herein, after receiving funds for approved Transactions from any Payment Network, Payment Facilitator will direct Processor and/or Bank to provisionally fund Sponsored Merchant’s Settlement Account, minus (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amounts authorized to be retained under Sections 22 or 23 of this Agreement. Failure to subtract such amounts does not relieve Sponsored Merchant of liability or responsibility for the same, and Sponsored Merchant agrees that Payment Facilitator may Sponsored Merchant agrees to pay all such amounts to Acquirer immediately upon receipt of any invoice and without deduction or offset. Prior to such funding, Processor or Bank, as applicable, may maintain funds associated with Sponsored Merchants’ transactions in a commingled account, and Sponsored Merchant shall have no right to such account, the funds therein, or interest, if any, obtained thereon. Sponsored Merchant acknowledges that Payment Facilitator is not a licensed money transmitter and shall not take receipt of any funds for purposes of transmission to Sponsored Merchant.
- For each approved Transaction for which Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, Sponsored Merchant hereby irrevocably authorizes Payment Facilitator to deliver instructions to Bank and/or Processor with regard to the amount and timing of payments to be made to the Settlement Account, including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts in respect of Payment Facilitator’s fees) and (b) pay remaining settlement funds, if any, to the Settlement Account.
- Sponsored Merchant must maintain a Settlement Account at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks. Sponsored Merchant authorizes Acquirer to initiate debit and credit entries to the Settlement Account, including through the ACH settlement process or via wire transfer, and agrees that Acquirer may debit the Settlement Account for any amounts owed hereunder to Acquirer or to which Acquirer or any of its affiliates may otherwise be entitled for any reason, including, but not limited to, amounts owed to Acquirer or any of its affiliates under any other agreement with Sponsored Merchant. Sponsored Merchant agrees to execute any additional documentation necessary to debit the Settlement Account as described herein. Such authorization shall remain in place until the later of termination of this Agreement or Sponsored Merchant’s satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. Sponsored Merchant may change the Settlement Account only as provided in Section 21 of this Agreement. Sponsored Merchant shall maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds, and shall be solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
- Sponsored Merchant acknowledges and agrees that: (a) Payment Facilitator, Processor, and Bank shall have no liability or responsibility for delays in the transmission or deposit of funds or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Sponsored Merchant or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) time periods set forth in Payment Facilitator’s marketing material, brochures, collateral and/or similar materials are estimates only; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) Payment Facilitator shall not be liable or responsible for any delays in the transmission or deposit of funds due or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Processor or Bank.
- Acquirer reserves the right to refuse to process any Transaction if Acquirer, in its sole discretion, believes that the Transaction may be uncollectible from the Cardholder, is likely to result in a Chargeback, and/or was presented in violation of the terms of this Agreement, the Processing Agreements, Applicable Law, and/or the Operating Rules.
- Sponsored Merchant acknowledges that all payments and credits provided to Sponsored Merchant are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Agreement and the Operating Rules.
- Marks and Intellectual Property
- Sponsored Merchant shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Agreement or at the direction of any Payment Network. Sponsored Merchant acknowledges that all such logos, marks, advertising and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network, which ownership Sponsored Merchant agrees not to challenge, and that such Payment Network may prohibit Sponsored Merchant’s use thereof at any time and for any reason, with or without notice. Further, from time to time, Payment Facilitator may provide Sponsored Merchant with materials that include Payment Facilitator’s name, logo, trademarks, and/or service marks. Sponsored Merchant shall only use such materials as expressly permitted by Payment Facilitator, and shall return to Payment Facilitator such materials upon the termination of this Agreement for any reason or upon Payment Facilitator’s earlier request at any time. Sponsored Merchant shall not at any time represent, directly or by implication, that its goods or services are endorsed, sponsored, or guaranteed by Acquirer or any Payment Network. This Agreement shall not confer on Sponsored Merchant any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
- Acquirer may require any changes to Sponsored Merchant’s website or otherwise that Payment Facilitator deems necessary or appropriate to ensure that Sponsored Merchant remains in compliance with the Operating Rules governing the use of the intellectual property described in Section 9a.
- All of Payment Facilitator’s computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services are and will remain the sole and exclusive property of the Payment Facilitator. Payment Facilitator shall own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from Sponsored Merchant’s request.
- Data Security
- Sponsored Merchant acknowledges that it is its responsibility to abide, and agrees to abide, by all Security Standards, including PCI DSS, and to provide proof of compliance to Acquirer or any Payment Networks as required or upon request, including, without limitation, by attestation or an examination of Sponsored Merchant’s systems to validate such compliance. The costs of any such attestation or examination shall be Sponsored Merchant’s sole responsibility.
- Without in any way limiting the obligations imposed by the preceding paragraph, Sponsored Merchant will (a) secure and keep confidential Cardholder information, Card Information and Transaction Information, including, but not limited to, the magnetic stripe and Card Verification Value 2 (“CVV2”), in strict compliance with this Agreement, the Security Standards, and Applicable Law, and will not use, disclose, or distribute any such information except as permitted by the Security Standards or Applicable Law and, further, may not disclose or distribute such information to any third party other than a third-party service provider described in Section 10c; and (b) maintain systems and media containing any Cardholder information, Card Information or Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information.
- To the extent Sponsored Merchant uses any third party to process, store, receive, transmit, and/or otherwise have access to Cardholder information, Card Information, and/or Transaction Information, Sponsored Merchant assumes full responsibility and liability for such third-party’s compliance with this Agreement, the Security Standards, and Applicable Law. Furthermore, neither Sponsored Merchant nor any such third party shall request CVV2 for card present transactions. Payment Facilitator, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which shall be the sole responsibility and liability of Sponsored Merchant. Sponsored Merchant further agrees to notify Payment Facilitator of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks and are compliant with all applicable Security Standards. Acquirer further reserves the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and to terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
- If Sponsored Merchant discovers or at any time has reason to suspect that a Data Compromise Event has occurred, Sponsored Merchant must immediately notify Payment Facilitator and fully cooperate, at its expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if Sponsored Merchant is undergoing a forensic investigation at the time it signs the Sponsored Merchant Application, it must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules shall be the exclusive responsibility of Sponsored Merchant.
- Sponsored Merchant acknowledges that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on its systems or those of any third party referenced in Section 10c may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Without limiting Sponsored Merchant’s liabilities under any other provision hereof, Sponsored Merchant agrees to fully indemnify Payment Facilitator, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, or any third parties associated with Sponsored Merchant’s actual or alleged failure, or the actual or alleged failure of any third party referenced in Section 10c, to comply with the Security Standards or the occurrence of any Data Compromise Event.
- In the event Sponsored Merchant operates a website capable of accepting Cards, then, in addition to all other obligations specified herein, Sponsored Merchant agrees to maintain, display, and abide by a Cardholder data privacy policy.
- Sponsored Merchants acknowledge that Payment Facilitator shall have no obligation to migrate or export Cardholder information, Card Information, and/or Transaction Information, including to Sponsored Merchant, at any time, including at the termination of this Agreement.
- Authorized Users
- To the extent Sponsored Merchant is granted electronic access to any of Acquirer’s systems or portals, Sponsored Merchant shall be responsible for (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying Payment Facilitator of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such actions were not authorized by Sponsored Merchant.
- Sponsored Merchant is responsible for the acts and omissions of its owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services. Without limiting the preceding sentence, such acts and omissions will be viewed as acts and omissions of Sponsored Merchant for purposes of determining if there has been a breach of this Agreement by Sponsored Merchant and the availability of any right or remedy related to such breach.
- Pricing and Payment
- Sponsored Merchant agrees to pay Processing Fees in the amounts specified in the fee schedule provided to and/or selected by Sponsored Merchant contemporaneously with Sponsored Merchant’s acceptance of this Agreement, as the same may be amended from time to time pursuant to this Agreement. The Processing Fees are qualified in all respects by the other terms of this Agreement, including the assumptions referenced herein.
- Except as otherwise set forth in a Sponsored Merchant Agreement, if a Transaction is revoked, Sponsored Merchant will incur a $5 ACH return fee. If a Transaction is disputed (e.g., a chargeback is initiated, including an ACH chargeback pursuant to reason code R05, R07, R08, R10, R29, R51, or R52), Sponsored Merchant will incur a $25 dispute fee. Following a revocation or dispute of a Transaction, no subsequent sales Transactions or entries should be initiated by the Sponsored Merchant associated with such Transaction.
- Sponsored Merchant is responsible for payment of refunds, Chargebacks, Processing Fees, indemnified losses, assessments, fees and/or other amounts charged by or payable to Acquirer, the Payment Networks, and/or other parties related to or associated with Sponsored Merchant’s use of the Services, its Transactions, and/or its processing activity (such fees and other amounts charged by or payable to any person other than Payment Facilitator, the “Third-Party Charges”). Acquirer may at any time, with or without notice, collect such amounts (a) pursuant to Section 8 of this Agreement; (b) by demanding immediate payment; (c) by debiting the Settlement Account or any Reserve Funds; or (d) by subtracting such amounts from future settlements.
- Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or parties other than Payment Facilitator.
- In addition, Acquirer may amend, revise, change, or supplement the Processing Fees by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to the Payment Networks or other third parties) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation.
- Sponsored Merchant agrees with, and represents and warrants to, Acquirer that such fee schedule constitutes an adequate Fee Disclosure for purposes of the Operating Rules and Applicable Law.
- Sponsored Merchant acknowledges and agrees that it shall be solely responsible for, and the Processing Fees do not cover or include: (a) fines, loss allocations, liability assessments, penalties, and/or similar charges imposed on or assessed against Sponsored Merchant or Acquirer by third parties (including the Payment Networks) and/or (b) all communication expenses associated with its processing activity.
- If Sponsored Merchant does not pay any refunds, Chargebacks, Processing Fees, indemnified losses, or other amounts payable to Acquirer or the Payment Networks when due, such amounts will accrue interest at the lesser of 1.5% per month or the highest amount permitted by applicable law.
- Taxes
- Sponsored Merchant shall be solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of Sponsored Merchant’s goods or services or receipt of donations. Unless Sponsored Merchant is otherwise exempt (and can prove such exemption to Acquirer’s satisfaction), Sponsored Merchant agrees to pay all taxes imposed on the services, equipment, or other property provided to Sponsored Merchant pursuant to this Agreement.
- Chargebacks
- Sponsored Merchant has full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with its Transactions.
- If Sponsored Merchant has reason to dispute or respond to a Chargeback, then Sponsored Merchant must do so by the date provided on the applicable Chargeback notice. Payment Facilitator, Processor, and Bank shall have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback.
- If Acquirer, in its sole discretion, determines that Sponsored Merchant is experiencing excessive Chargebacks, then it may (i) with notice, increase the Processing Fees; (ii) without notice, establish or increase the Reserve Funds; (iii) without notice, suspend the Services; or (iv) without notice, terminate this Agreement.
- Sponsored Merchant shall not ask or require that a Cardholder waive a right to dispute a transaction.
- Indemnification
- Sponsored Merchant shall indemnify and hold Payment Facilitator, Processor, and Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by any of them arising out of: (i) Sponsored Merchant’s acts or omissions, or those of its owners, employees, consultants, contractors, agents, officers, and directors, whether or not those acts or omissions were authorized by Sponsored Merchant (including, without limitation, any obligation of Payment Facilitator to indemnify Processor or Bank with respect to any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (ii) Sponsored Merchant’s Transactions or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (iii) Sponsored Merchant’s breach of this Agreement or violation of Applicable Law or Operating Rules; (iv) the state or configuration of Sponsored Merchant’s equipment, including, without limitation, Sponsored Merchant’s failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; and/or (v) Sponsored Merchant’s use of third-party services or service providers, including gateways, value added resellers, and independent software vendors.
- Without limiting the preceding subsection, in the event that Payment Facilitator, Processor, or Bank is named as a party to any claims, litigation, proceeding, arbitration, or other legal process commenced by a third party arising out of or relating to any act or omission by Sponsored Merchant, Sponsored Merchant shall indemnify, protect, and hold harmless Payment Facilitator, Processor, and Bank with respect to any and all liability associated with such claims, litigation, proceeding, arbitration, or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
- Obligation to Report Statement Discrepancies
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
Statements provided online shall be deemed received the first day they are available online. - YOU ACKNOWLEDGE AND AGREE THAT NEITHER PAYMENT FACILITATOR, PROCESSOR, NOR BANK SHALL BE LIABLE OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO PAYMENT FACILITATOR IN WRITING WITHIN FORTY FIVE (45) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
- You acknowledge and agree that you shall reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit or other means from your Settlement Account or the Reserve Funds.
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
- Limitation of Liability and Disclaimer of Warranties
- UNDER NO CIRCUMSTANCES SHALL ACQUIRER’S AGGREGATE FINANCIAL RESPONSIBILITY FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO PAYMENT FACILITATOR BY SPONSORED MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, AND/OR BANK BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
- FOR PURPOSES OF THIS SECTION 17, FEES OR CHARGES OF THE PAYMENT NETWORKS OR OTHER THIRD PARTIES PASSED THROUGH TO CUSTOMER PURSUANT TO THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, OR BANK, OR ANY OF ITS OR THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY SPONSORED MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK SHALL NOT BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
- PAYMENT FACILITATOR, PROCESSOR, AND BANK MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, EQUIPMENT AND/OR SERVICES PROVIDED HEREUNDER AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SPONSORED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, AND/OR TRADE.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK DO NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES, EQUIPMENT, SOFTWARE, AND/OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; (C) THAT A PRODUCT WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULTS; (D) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS; OR (E) THAT A PRODUCT WILL OPERATE WITHOUT INTERRUPTION.
- Underwriting, Monitoring, and Auditing Rights
- Sponsored Merchant, on behalf of itself and its principals and beneficial owners, acknowledges and agrees that Acquirer may request and obtain external reports, including background checks, credit checks, banking relationship reports, financial history, and credit reports from credit reporting agencies, in connection with the consideration of the Sponsored Merchant Application or at any time thereafter. Sponsored Merchant further acknowledges that its Sponsored Merchant Application may be rejected by Acquirer and that Acquirer shall not have any liability associated with such rejection.
- Sponsored Merchant agrees to promptly furnish Acquirer and any requesting Payment Network with information and documents reasonably necessary to evaluate Sponsored Merchant’s financial condition and business practices upon request. Furthermore, with notice and during Sponsored Merchant’s normal business hours, any of Acquirer’s respective representatives or the representatives of any Payment Network may visit Sponsored Merchant’s business premises to examine Sponsored Merchant’s operations, activities, and/or books and records to the extent necessary to evaluate Sponsored Merchant’s compliance with this Agreement or to the extent necessary for Payment Facilitator to meet its obligations under the Processing Agreements or for the Acquirer to meet its obligations under the Operating Rules.
- Sponsored Merchant agrees to provide Payment Facilitator advance written notice of any actual or anticipated (a) material change in Sponsored Merchant’s products or services, business practices, or the manner in which Sponsored Merchant accepts Cards; (b) change to Sponsored Merchant’s legal form, legal name, trade name, or mailing address; or (c) changes to anticipated Transaction amounts or volume.
- Sponsored Merchant agrees to provide Acquirer with all “know your customer” information that it reasonably requests from time to time, including, without limitation, any information (a) necessary to meet a person’s obligations under, inter alia, United States anti-terrorism or anti- money laundering laws or (b) Payment Facilitator is required to diligence, obtain and/or verify under any of the Processing Agreements or under the Operating Rules (including the names and country of domicile of each of the Sponsored Merchant’s principals and reports of all Transactions).
- Sponsored Merchant shall provide such information within twenty-four (24) hours of a request for the same. Without limiting the foregoing, Sponsored Merchant shall, on an ongoing basis (and at least quarterly), provide Payment Facilitator with each of its office addresses, uniform resource locaters, “doing business as” names, as well as complete descriptions of all goods and services provided by such Sponsored Merchant.
- Reporting
- Sponsored Merchant acknowledges that, under the Operating Rules of the Payment Networks, certain Sponsored Merchant activity and terminations of Sponsored Merchant processing agreements may result in Acquirer’s reporting merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). Sponsored Merchant, on behalf of itself and its principals (and with such principals’ explicit authorization), hereby consents to such reporting and waives any claim related to the same, even in instances where Sponsored Merchant or its principals believe that reporting to have been improper or in error.
- Relationship of the Parties
- Sponsored Merchant designates Acquirer as its agent to receive payments for Transactions processed pursuant to this Agreement. Payment Facilitator, Processor, and/or Bank, however, shall not be considered a partner or fiduciary to Sponsored Merchant, and nothing in this Agreement or the rendition of Services related to this Agreement shall be deemed to create a joint venture, partnership, and/or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm’s length commercial relationship.
- Updates to Settlement Account
- If Sponsored Merchant intends to change its Settlement Account, it must give no fewer than fifteen (15) days’ prior written notice to Payment Facilitator and receive Payment Facilitator written approval of the change. Failure to provide the notice and obtain the approval required in this Section may result in Acquirer’s inability to settle Transaction proceeds to Sponsored Merchant, and may result in the misdirection or loss of the same. Sponsored Merchant shall bear sole responsibility for any such loss and shall have no right of recovery against Payment Facilitator, Processor, and/or Bank associated with such misdirection or loss.
- Reserve Account and Security Interest
- Payment Facilitator, Processor, and/or Bank may at any time, whether at the inception of this Agreement or thereafter (including at the time of termination of this Agreement), require the establishment of Reserve Funds to satisfy Sponsored Merchant’s current or anticipated obligations hereunder, including, without limitation, its obligations with respect to refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Further, at any time during the term of this Agreement or at its termination, Payment Facilitator, Processor, and/or Bank may increase the amount of Reserve Funds established as described herein. All decisions relating to whether to establish one or more Reserve Funds, set the amount of, or increase the Reserve Funds will be in Payment Facilitator, Processor, and/or Bank’s discretion.
- Reserve Funds may be funded by (i) debiting the amount of Transactions that would otherwise be payable to Sponsored Merchant under this Agreement; (ii) demanding funds from Sponsored Merchant; or (iii) debiting the Settlement Account. If Payment Facilitator, Processor, and/or Bank makes a demand for funds pursuant to this Section 22b, Sponsored Merchant shall promptly transfer the amount of funds demanded.
- Reserve Funds may be used at any time to satisfy Sponsored Merchant’s obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer and/or the Payment Networks.
- Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on Sponsored Merchant’s account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy Sponsored Merchant’s current or anticipated obligations under this Agreement, the Operating Rules, and/or Applicable Law.
- Until the expiration of the period referenced in the preceding subsection, Sponsored Merchant shall have no ownership interest in or right to the Reserve Fund. Rather, the Reserve Funds shall be the exclusive property of Payment Facilitator, Processor, and/or Bank. Furthermore, Sponsored Merchant shall have no right to receive interest on any funds maintained in any of the Reserve Funds, which shall be the exclusive property of Payment Facilitator, Processor, and/or Bank.
- Without in any way limiting the foregoing, and merely as an additional form of security, Sponsored Merchant hereby further grants Payment Facilitator a security interest in (a) the Reserve Funds; and (b) the proceeds associated with any Transaction. Payment Facilitator may enforce its security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until Sponsored Merchant satisfies all its obligations to Acquirer. Sponsored Merchant further agrees to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Agreement.
- Holdback Rights
- In addition to any of the other rights granted to Acquirer hereunder, in the event that Acquirer, at any time during the term of this Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, or excessive Chargebacks) or (b) to enable Payment Facilitator or Processor to exercise its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. To the extent (i) the investigation conducted by Acquirer with respect to the unusual, suspicious, or risk-exposing activity determines that such activity is reasonably likely to result in amounts being due from you to Acquirer, and (ii) Acquirer requires the establishment, replenishment, or increase of one or more Reserve Funds in connection therewith, then the funds held pursuant to this Section 23 may be used to fund such Reserve Funds.
- Equipment
- Payment Facilitator, Processor, and Bank make no representations or warranties regarding the compatibility of third-party products and services with Acquirer’s systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer’s respective systems, you understand that a separate agreement may be required with the third-party provider in order to obtain such software, services, or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
- Sponsored Merchant shall be responsible for any fines, penalties, claims, demands, or new or increased fees (including interchange) that result from Sponsored Merchant’s (a) use of value added reseller, independent software vendor, gateway, point of sale systems, or any other software, hardware, or service not provided by us; (b) failure to maintain the most current version of software that has been certified by Payment Facilitator, Processor, and Bank as being compatible with the their respective systems; or (c) misuse of software that has been certified as compatible with Acquirer’s respective systems. Notwithstanding anything in this Section 24b, Sponsored Merchant shall not use any third-party point of sale systems, or any other device or method used for the purpose of obtaining credit or debiting a designated account (including any Card), without the prior written consent of Payment Facilitator.
- To the extent that Sponsored Merchant elects to purchase, lease, or use processing equipment from Acquirer, Sponsored Merchant agrees to pay the stated purchase price or lease amounts, along with all applicable taxes and shipping costs, and agrees that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to Sponsored Merchant’s Settlement Account.
- Equipment provided by Acquirer may only be used for purposes of this Agreement and the receipt of Services pursuant to this Agreement. Sponsored Merchant shall keep any such equipment in a good state of repair, normal wear and tear excepted, and shall follow all instructions regarding the use and maintenance thereof. Sponsored Merchant shall not, and shall not permit others to, alter, modify, and/or deface any such equipment or inscribe or etch anything thereon or attach or affix anything thereto. With respect to leased equipment, title to such equipment remains with the provider at all times, and Sponsored Merchant acquires no right, title, or interest in any such other than the right to use equipment to receive the Services for the period during which the provided thereof permits Sponsored Merchant to use the same. Sponsored Merchant must give Acquirer access to any such equipment at all times, and Acquirer may repair or replace any such equipment at any time. With regard to any equipment provided to Sponsored Merchant, Sponsored Merchant shall bear all risk of loss, damage, destruction, theft, and/or similar to such equipment from any cause whatsoever (each a “Loss Event”) during the term hereof and until such equipment has been returned to the provider thereof. Sponsored Merchant shall return such equipment, at its risk and expense, upon the earlier of the expiration or termination hereof. Sponsored Merchant shall immediately notify Payment Facilitator upon the occurrence of any Loss Event. Sponsored Merchant shall not distribute, sell, transfer, share, sublease, rent and/or give away any such equipment or any interest therein or use, or permit the use of, such equipment by or on any third party’s behalf, except that Sponsored Merchant may allow its customers to use equipment in the course of completing a Transaction.
- Confidentiality and Use of Data
- Sponsored Merchant shall use Card Information solely to receive Services under this Agreement. Under no circumstances shall Sponsored Merchant sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
- Except in response to a validly served subpoena, Sponsored Merchant will not provide Card Information to anyone except to Acquirer, the Payment Networks, or Sponsored Merchant’s agents that have been approved by Processor and are properly registered with Payment Networks for purposes of assisting Sponsored Merchant in completing Transactions. Should Sponsored Merchant receive a subpoena that encompasses Card Information, Sponsored Merchant will notify Payment Facilitator in writing of its receipt of such a subpoena as soon as practicable.
- Sponsored Merchant agrees to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information, Transaction Information, and Cardholder information; (d) any other non-public information regarding any aspect of Acquirer’s respective businesses made available to, or encountered by, Sponsored Merchant under the auspices of this Agreement (“Acquirer Confidential Information”); or (e) other information Payment Facilitator is required to keep confidential. Acquirer Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing or business development plans, technical information, personnel information, and trade secrets.
- Should Sponsored Merchant receive any Acquirer Confidential Information belonging to Acquirer, Sponsored Merchant agrees to protect such confidential information equally to its own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. Sponsored Merchant agrees to return Acquirer’s respective confidential information either upon the termination of this Agreement for any reason, or upon earlier request from Acquirer.
- To the extent permitted by Applicable Law and the Operating Rules, Sponsored Merchant authorizes Acquirer to disclose information regarding Sponsored Merchant to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. Sponsored Merchant authorizes Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of Services under this Agreement. Sponsored Merchant further authorizes Acquirer to provide information about Sponsored Merchant in response to requests for such information from any government body or regulatory authority.
- Notwithstanding anything else in this Agreement, and without otherwise limiting Acquirer’s use of such information, all Card Information, information related to Transactions or Cardholders, and information related to Sponsored Merchant, may be used by Payment Facilitator, Processor, and/or Bank and its or their respective affiliates and designees: (a) to provide Services; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or services; (d) in the course of any sale or reorganization of any of Acquirer’s respective business; (e) to comply with Applicable Laws; (f) for disclosure to credit reporting agencies and other financial institutions; and (g) as otherwise permitted by Applicable Laws.
- Amendments and Waiver
- Payment Facilitator may amend, revise, change, or supplement this Agreement by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to changes to the Operating Rules or Applicable Law) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Rules or Applicable Law may be made on less than thirty (30) days’ notice and shall not be grounds for termination of this Agreement.
- Payment Facilitator will not be deemed to have waived any provision of this Agreement by failing to promptly enforce the same, and no waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision of this Agreement or the same provision on any other occasion.
- Notices; Electronic Notice
- All notices under this Agreement to Payment Facilitator, Processor, and/or Bank must be in writing and delivered via hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices to Payment Facilitator, Processor, and/or Bank must be sent to the addresses respectively designated on the Sponsored Merchant Application for those entities, and will be deemed effective upon receipt. Acquirer may provide Sponsored Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Sponsored Merchant Application (or such other address as Sponsored Merchant may provide); (b) electronically, through the Sponsored Merchant portal or through any other means of electronic communication maintained by Acquirer which Sponsored Merchant may access; or (c) electronically, via any email address designated by Sponsored Merchant. Sponsored Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the Internet for so long as this Agreement is in effect and until all of its obligations hereunder have been satisfied in full. Notices delivered through any of the foregoing means shall include notice provided on statement messages appearing on periodic processing statements.
- Choice of Law and Venue; Time and Procedure for Assertion of Claims
- All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation, or enforceability of the choice of law and venue provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
- Without in any way limiting Section 30 (Arbitration), with respect to any action arising out of, relating to, or in connection with this Agreement, Sponsored Merchant and all individuals executing this Agreement in any capacity hereby consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in the State of New York.
- Each party agrees to provide the other prompt notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon either party’s election, the parties will participate in non-binding mediation before a mutually agreed mediator. Any controversy, claim, or dispute that is not resolved through the procedures set forth above within sixty (60) days following the initial notice (or such longer period as the parties may agree) will be resolved pursuant to arbitration pursuant to Section 30 of this Agreement.
- Neither party may bring a claim more than two (2) years after the underlying cause of action first accrues.
- Attorneys’ Fees
- Sponsored Merchant agrees to reimburse Payment Facilitator for all attorneys’ fees or other costs incurred by it in enforcing any provision of this Agreement against Sponsored Merchant, or in obtaining any sums due under this Agreement from Sponsored Merchant, regardless of whether those fees are incurred in connection with a court proceeding, private dispute resolution, or outside a formal dispute resolution proceeding.
- Arbitration
- ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief.
- The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in State of New York (although, for the convenience of the Sponsored Merchant or guarantor (as applicable), any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Sponsored Merchant and guarantor (if applicable) shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the New York Supreme Court at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 30 is found invalid or unenforceable, the other parts of this Section 30 shall still apply.
- SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
- Remedies Cumulative
- The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative.
- Assignment; Successor Responsibility
- The Bank may assign this Agreement without Sponsored Merchant’s consent. Processor may assign this Agreement to another transaction processor approved by Bank. Payment Facilitator may assign this Agreement to another payment facilitator, to Processor, to one of its affiliates, by operation of law, or in connection with the sale of all or substantially all of its assets. Sponsored Merchant may not assign this Agreement without the express written consent of Payment Facilitator, except as otherwise provided in the Processing Agreements. For purposes of this Agreement, it shall be deemed an assignment by Sponsored Merchant of this Agreement to effectuate any sale or transfer of the equity interests of Sponsored Merchant’s business such that the equity holders listed in the Sponsored Merchant Application collectively hold less than 50% of the equity interests after such sale or transfer. This Agreement will be binding on each party’s successor(s) and/or permitted assigns.
- Third Party Beneficiaries
- Processor and Bank are third-party beneficiaries to this Agreement and may enforce the terms hereof, including those rights and privileges belonging to “Acquirer.” In addition, the Payment Networks are third-party beneficiaries of this Agreement and shall have the rights, but not any obligation, necessary to fully enforce the terms of this Agreement against Sponsored Merchant. There are no other third party beneficiaries to this Agreement.
- Force Majeure
- Payment Facilitator, Processor, and/or Bank shall not be liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, governmental actions, strikes, telecommunications failures, equipment failures, network failures, or other causes beyond such person’s reasonable control.
- Entire Agreement; Severability
- This Agreement constitutes the complete and final agreement between the parties and supersedes all prior oral or written agreements related to its subject matter. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by all parties hereto. If any provision of this Agreement is deemed unlawful or unenforceable, then it shall be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of the Agreement, which shall continue in full force and effect.
- Survival
- Termination of this Agreement shall not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive or be perpetual of irrevocable. Such provisions, including, without limitation, Sections 1, 3f, 5g, 8c, 8f, 9 through 17, 19 through 25, 26b, and 27 through 35 shall survive the expiration or termination of this Agreement.
- Press Release
- Payment Facilitator may issue press releases regarding the parties’ relationship hereunder, after this Agreement becomes effective. Sponsored Merchant shall not make any such public disclosure without Payment Facilitator’s prior written consent.
- Electronic Signature
- This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. A signature or other indication of acceptance received electronically or via facsimile (including by checking a box or clicking a link stating, “I Agree,” or words to similar effect) shall be legally binding for all purposes and equally effective as a wet ink signature.
- Consent to Receipt of Electronic Communications
- From time to time we may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this Agreement confirms your ability and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
- Under this Consent, we may provide all Communications electronically by email or by making them accessible via our websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Agreement, our Privacy Policy, and our Software as a Service Agreement) (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, and (4) all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
- To access and retain the electronic Communications, you will need the following:
- A computer or mobile device with Internet or mobile connectivity.
- For desktop website-based Communications:
- Recent web browser that includes 256-bit encryption;
- The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and
- Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
- For application-based Communications:
- A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
- The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
- Access to the email address used to create an account for the Services.
- Sufficient storage space to save Communications and/or a printer to print them.
- If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add support@paymentbrands.com to your email address book.
- You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to 10133 Sherill Boulevard, Suite 120, Knoxville, Tennessee 37932 (“Company Address”) within 180 days of the date of the original Communication, specifying in detail the Communication you would like to receive in paper form. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
- You may withdraw your consent to receive electronic Communications at any time, by writing to the Company Address. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Company will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
- You can change your email address by writing to the Company Address. You may also be able to change your email address yourself through the Services.
Addendum 1: MERCHANT SERVICES AGREEMENT FOR SUB- MERCHANTS
- Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause employees and third parties acting as Sub-merchant’s agent (“Agents”) to comply, with each Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks, including with respect to the use of an Association’s mark(s) (collectively "Operating Regulations"). Such Operating Regulations are incorporated by reference, and will control with respect to any conflict in terms between this Agreement and such Operating Regulation. Sub-merchant acknowledges and agrees that it is not a third-party beneficiary of any Operating Regulation, however, an Association may be a third-party beneficiary of this Agreement, and that certain Operating Regulations govern the relationships between various parties such as the Associations, Processor, Member Bank, and/or other entities (e.g., partners, etc.), and that any failure by Processor to abide by such Operating Regulation does not provide the basis for a breach of the Agreement claim by Merchant or any other third party. The Associations make excerpts of their Operating Regulations available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html; https://usa.visa.com/support/consumer/visa-rules.html; https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf; https://www.americanexpress.com/merchantopguide. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Sub-merchant hereby authorizes Acquirer to conduct background checks on Sub-merchant, including but not limited to credit checks and banking and financial history investigations, and share any information required by an Association. Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC), and provide all necessary documentation to Acquirer promptly upon request. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers. If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub- merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions. Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.
- Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data, including CVV2, in plain view when mailed; ii) add any tax or surcharge to transactions, except in compliance with Operating Regulations and applicable law; iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant; v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
- Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer or an affiliate of Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer or an affiliate of Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer or affiliate of Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer or an affiliate of Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer or an affiliate of Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer or an affiliate of Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
- Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.
- Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
- EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub- merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then- current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub- merchant.
- Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.
Addendum 2: TERMS OF USE FOR APPLE PAY
- Use of Apple Pay. Apple Pay is offered exclusively by Apple. We do not own, operate, or control Apple Pay, and we are not responsible for any service provided to you by Apple or by any third party engaged by Apple. We are also not responsible for any information or other services provided to you by Apple or any other third parties associated with the Apple Pay service. We are not liable for any failure or performance of the Apple Pay service.
- Registration and Reporting to Apple. You acknowledge and agree that Ministry Brands can share information with Apple to enable registration for Apple Pay and regarding your participation therein, including your name and contact information. Apple may retain and use the information we provide for any lawful purpose. You agree that you will provide us with all required documentation to facilitate such registration. You are responsible for the accuracy and completeness of the information and documents that you provide to us in connection with the registration.
- Non-Discrimination. You agree that (i) you do not discriminate against any person or group of people in your hiring and employment practices, codes of conduct, programs, services or in any other aspect of your operations or activities on the basis of that person or group of people’s personal characteristics or attributes (such discrimination including, but not limited to, hiring and employment policies or practices that discriminate against a person or group of people on the basis of their sexual orientation or gender identity, even if such policies and practices are permitted under applicable law) (“Category Discrimination"); or (ii) you are a religious or faith-based organization exempt from applicable laws that otherwise prohibit such Category Discrimination.
Effective February 14th 2024 to May 14th 2024
DownloadTable of Contents
- Definitions
- “Acquirer” refers to Payment Facilitator, Processor, and/or Bank, any of which shall have the authority to exercise rights belonging to the Acquirer hereunder.
- “Addendum” (and the plural, “Addenda”) refers to each Addendum attached hereto, or any other Addendum otherwise executed or agreed to between the parties.
- “Agreement” refers to these terms and conditions, along with the attached Addenda and the Sponsored Merchant Application, as any of the same may be amended from time to time pursuant to these terms.
- “American Express” refers to American Express Travel Related Services Company, Inc. or its successors or assigns.
- “Applicable Law” refers to all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance, including all laws in both the Cardholder and the Sponsored Merchant’s jurisdictions.
- “Bank” refers to the acquiring bank identified in the Sponsored Merchant Application, or such other acquiring bank(s) as Payment Facilitator or Processor may contract with to provide sponsorship with the Payment Networks, as well as any successors and assigns of such acquiring bank(s).
- “Card” refers to an account, or evidence of an account, authorized and established between a Cardholder and a Payment Network, or representatives or members of a Payment Network, that Sponsored Merchant accepts from Cardholders as payment for a good or service.
- “Card Information” refers to all information related to a Cardholder or Card obtained by Sponsored Merchant in connection with a Transaction, including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, or account balances.
- “Cardholder” refers to the person or entity to whom a Card is issued or who is authorized to use a Card.
- “Chargeback” refers to the reversal of any Transaction pursuant to the Operating Rules for whatever reason.
- “Data Compromise Event” refers to any event that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information, Cardholder information and/or Card Information.
- “Discover” refers to Discover Financial Services, LLC or its successors or assigns.
- “Mastercard” refers to Mastercard International Incorporated or its successors or assigns.
- “Operating Rules” refers to all rules, bylaws, programs, and regulations of the Payment Networks, as the same are amended from time to time, including, without limitation, the provisions thereof governing or otherwise applicable to “Merchants,” “Sponsored Merchants,” or “Submerchants.” The Payment Networks make excerpts of their Operating Rules available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html;
https://usa.visa.com/support/consumer/visa-rules.html;
https://www.americanexpress.com/merchantopguide;
https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf.
The Operating Rules are explicitly incorporated by reference into this Agreement. - “Payment Facilitator,” “Ministry Brands Holdings, LLC,” or “we” refers to Ministry Brands Holdings, LLC.
- “Payment Network” refers to each of Visa, Mastercard, American Express, Discover, and any card network issuing credit or debit cards, and, for purposes of this Agreement, further includes the Payment Card Industry Security Standards Council.
- “PCI DSS” refers to the Payment Card Industry Data Security Standards.
- “Processing Fees” refers to the fees and charges set forth on the fee schedule that is part of the Sponsored Merchant Application and this Agreement or any Addenda thereto, as modified or amended from time to time, whether by the Payment Networks or by Acquirer pursuant to this Agreement, including, without limitation, by messages included on any processing statement.
- “Processor” refers to Worldpay LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384, and its successors and assigns, or such other payment processor as Payment Facilitator may contract with to provide payment processing functionality.
- “Reserve Funds” refers to funds placed in one or more non-segregated and non-interest bearing accounts established by Acquirer in accordance with this Agreement to ensure payment of all obligations or anticipated obligations hereunder, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Security Standards” refers to all rules, regulations, or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, PCI DSS, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and any successor rules, regulations or standards, in each case, as any of the same may be amended from time to time.
- “Services” refers to those services provided by Acquirer, necessary and required to facilitate the authorization, processing, and settling of Transactions.
- “Settlement Account” refers to the account maintained by Sponsored Merchant at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Sponsored Merchant” or “you” refers to the legal entity identified in the Sponsored Merchant Application.
- “Sponsored Merchant Application” refers to the application that Sponsored Merchant completed and signed (including by electronic signature or otherwise electronically indicating acceptance of the terms) and which is subsequently accepted by Acquirer, whether evidenced by the execution of this Agreement or by the processing of presented Transactions.
- “Transaction” refers to any interaction between a Cardholder and a Sponsored Merchant in which a Cardholder uses a Card to purchase Sponsored Merchant’s goods or services or donate to Sponsored Merchant and which results in activity on the Cardholder’s account.
- “Transaction Information” means any data or information resulting from a Transaction, including payment processing-related information collected or stored by Processor or Payment Facilitator, including the price paid for products or services, data, time, approval, unique transaction number, store identifier, and may include Card Information and Cardholder information.
- “Visa” refers to Visa Inc. or its successors or assigns.
- Services
- Subject to Applicable Law and the Operating Rules, Payment Facilitator (or its agents, contractors, or designated representatives) will provide the Services to Sponsored Merchant pursuant to the terms of this Agreement. Sponsored Merchant agrees to abide by, and to use the Services in strict compliance with, Applicable Law, the Security Standards, and the Operating Rules.
- Upon request, Payment Facilitator, Processor, and/or Bank may elect to provide certain Automated Clearing House (“ACH”) processing services to Sponsored Merchant at the rates specified in the Sponsored Merchant Application and under the terms set forth in this Agreement. To the extent Sponsored Merchant uses such ACH processing services, it agrees to abide by the National Automated Clearing House Association (“NACHA”) rules and regulations, as the same may be amended from time to time.
- Sponsored Merchant Representations and Responsibilities
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- The person signing the Sponsored Merchant Application has full legal power and authority to enter into this Agreement;
- Sponsored Merchant meets the definition of, and has satisfied the requirements applicable to, “Merchants” (taking into account the fact that Sponsored Merchant is authorized to accept cards pursuant to this Agreement rather than a merchant agreement), “Sponsored Merchants,” and/or “Submerchants” under the Operating Rules;
- Each statement made by Sponsored Merchant on the Sponsored Merchant Application is and, except as has been disclosed in writing to Payment Facilitator, remains true;
- Sponsored Merchant has its principal place of business in, is located in, and has been formed (if Sponsored Merchant is an entity or organization) under the laws of, the United States;
- The Transaction is legal and genuine, was conducted in accordance with this Agreement, and arises from a bona fide sale of goods or services by, or donation to, Sponsored Merchant (and not by any other entity) in the United States for which, to the extent required by the Operating Rules, authorization was obtained; except as otherwise permitted by the Operating Rules, and where applicable, the goods have been shipped or delivered and/or the services performed; and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose;
- The Transaction is not one that Sponsored Merchant knows or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and the Sponsored Merchant, or that is otherwise unlawful, illegal, or impermissible under this Agreement, Applicable Law or the Operating Rules;
- All information and data provided by Sponsored Merchant in connection with the Transaction is true, correct, and accurate;Sponsor Merchant grants Acquirer the right to provide the same to the Payment Networks; and Sponsor Bank warrants that the provision of such information to the Payment Networks complies with Applicable Law and the terms of any applicable privacy policy(ies) or agreements;
- Sponsored Merchant has taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder;
- The Transaction is not subject to liens, encumbrances, disputes, set- off, or counterclaim (other than ordinary sales taxes);
- The Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules) and the Transaction has not been previously charged back to the Acquirer and subsequently returned to the Sponsored Merchant; provided, however, that Sponsored Merchant may pursue payment from the customer outside of the payment card ecosystem;
- Sponsored Merchant has not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction;
- The Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible;
- The Transaction does not arise from the dishonor of a Cardholder’s personal check;
- Sponsored Merchant has the legal right to sell the goods and services purchased by Cardholder or to accept the donation from the Cardholder via the Transaction and is providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and services, as applicable;
- Sponsored Merchant has accurately provided and has not altered or manipulated its “doing business as” name, country location (which name and country is the same as that disclosed to Cardholders in connection with a Transaction), the description of its business for selection of an appropriate Sponsored Merchant category code/Card acceptor business code (“MCC”), and, as applicable, its unique merchant identification number (“MID”) (defined below) in the authorization request/message and clearing record/message for such Transaction;
- Sponsored Merchant is not operating a business prohibited by the Operating Rules and has correctly identified for Payment Facilitator the MCC that most closely reflects the Sponsored Merchant’s primary business in accordance with applicable MCC guidance from the Payment Networks;
- Sponsored Merchant has made no representation or agreement for the issuance of refunds except as stated in Sponsored Merchant’s refund policy;
- Sponsored Merchant is responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to Payment Facilitator, and/or for any dispute Transaction or credit and has made clear to each Cardholder that the Sponsored Merchant is responsible for the Transaction (including the delivery of goods or provision of services that are the subject of the transaction, if applicable) and for customer service and dispute resolution;
- Sponsored Merchant has not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and
- Any Transaction submitted to Payment Facilitator to credit a Cardholder’s account represents a refund for a Transaction previously submitted to Payment Facilitator.
We reserve the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
- Subject to Applicable Law and the Operating Rules, Sponsored Merchant agrees to accept all categories of Visa and Mastercard Cards unless Sponsored Merchant has notified Payment Facilitator on the Sponsored Merchant Application of its election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. Furthermore, Sponsored Merchant shall not engage in, and shall maintain a policy against engaging in, any practice that discriminates against or discourages the use of any Card or Card Issuer in favor of another Card or Card issuer, except in full compliance with the Operating Rules.
- Except to the extent permitted by both Applicable Law and the Operating Rules and as authorized in writing by Payment Facilitator, Sponsored Merchant shall not (i) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); (ii) add any tax to Transactions unless Applicable Law expressly requires such addition (in which case the tax must be included in the Transaction amount and not collected separately); or (iii) set minimum or maximum transaction amounts.
- Sponsored Merchant must not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
- Sponsored Merchant shall maintain a written refund policy and shall disclose such policy to Payment Facilitator and all its customers (including customers making purchases online by displaying such policy on the website) consistent with Applicable Law and the Operating Rules. The amount of any refund shall not exceed the original Transaction except to the extent a Sponsored Merchant agrees to reimburse a Cardholder for return shipping. The refund policy with respect to any Card must be at least as favorable as Sponsored Merchant’s refund policy with respect to other payments products.
- Subject to Applicable Law, the Operating Rules, and the Security Standards, Sponsored Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer upon request from time to time.
- Sponsored Merchant may not bill or collect from any Cardholder for any purchase or payment on a Card unless a Chargeback has been exercised, the Sponsored Merchant has fully paid for such charge, and it otherwise has the right to do (including under Applicable Law).
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- Processing Agreements; Certain Payment Network Terms
- Sponsored Merchant acknowledges and agrees:
- This Agreement is subject to the terms of each of Payment Facilitator’s agreements with Processor and/or Bank (collectively, the “Processing Agreements”). This Agreement does not, and may not, restrict or interfere with the right of Processor or Bank to terminate this Agreement at any time or the right of Payment Facilitator to terminate this Agreement at any time as required by the Processing Agreements.
- All obligations in or under any of the Processing Agreements that are intended to apply to Sponsored Merchant (including, without limitation, any obligations of a merchant or sponsored merchant thereunder) are hereby incorporated into this Agreement and shall apply to Sponsored Merchant. Notwithstanding anything herein to the contrary, Sponsored Merchant is not a third-party beneficiary of, has no rights under, and may not bring any claim against Processor or Bank relating to, any of the Processing Agreements or any agreement with the Payment Networks.
- This Agreement is also subject to the Operating Rules. Without limiting the preceding sentence:
- This Agreement does not limit the Operating Rules or any of Acquirer’s respective rights thereunder.
- Sponsored Merchant may not take any action that could interfere with, or prevent the exercise of, action by any of Payment Networks to (a) enforce any of the Operating Rules, (b) prohibit Payment Facilitator or Sponsored Merchant from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks or to Processor or its affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
- Notwithstanding anything herein to the contrary, to the extent required by a Payment Network, the Operating Rules of such Payment Network shall govern to the extent of any irreconcilable conflict between this Agreement and such Operating Rules.
- In the event that Sponsored Merchant submits for processing in any twelve-month period more than $1,000,000 in Visa transactions and/or $1,000,000 in MasterCard transactions (or such other amount provided by the Operating Rules as necessitating a tripartite processing agreement) (the “Threshold Amount”), and Sponsored Merchant is categorized within certain MCC does designated by the Payment Networks, Sponsored Merchant will automatically be deemed to have accepted, and will be bound by, the Merchant Agreement (set forth in Addendum 1, Merchant Services Agreement for Sub-Merchants), effective as of the date Sponsored Merchant's transaction volume exceeds the Threshold Amount, the terms of which will be independently enforceable by Processor and Bank.
- In addition to the remaining provisions of this Agreement, the following terms and conditions shall govern Sponsored Merchant’s acceptance of Cards issued by American Express:
- Sponsored Merchant expressly authorizes Payment Facilitator to submit Transactions to, and (if applicable) receive settlement from, American Express on behalf of the Sponsored Merchant.
- Sponsored Merchant authorizes American Express to receive information regarding Sponsored Merchant and its Transactions and agrees that American Express shall be entitled to use such information (i) to perform its responsibilities in connection with the program; (ii) to promote the American Express network; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communication purposes and important transactional or relationship communications from American Express. Furthermore, American Express shall be entitled to use information obtained in the Sponsored Merchant’s application to screen, communicate, and/or monitor Sponsored Merchant in connection with marketing and administrative purposes.
- Sponsored Merchant may opt out of receiving future commercial marketing communications from American Express. Sponsored Merchant agrees, however, that such an opt-out will not preclude American Express from sending important transactional or relationship communications and Sponsored Merchant may continue to receive marketing communications while American Express updates its records. In addition, Sponsored Merchant may opt out of accepting Cards (including Cards issued by American Express) at any time without directly or indirectly affecting its rights to accept other payments products.
- Sponsored Merchant acknowledges that it may be converted to a direct Card acceptance relationship with American Express if and when it becomes “High CV Merchant” in accordance with Operating Rules promulgated by American Express. Upon any such conversion, Sponsored Merchant will be bound by American Express’s then- current card acceptance agreement, and American Express will set pricing and other fees payable by Sponsored Merchant for Card acceptance.
- Sponsored Merchant shall not assign to any third party any payments due to it under this Agreement; provided, however, that Sponsored Merchant may sell and assign future Transaction receivables to Payment Facilitator, its affiliated entities, and/or any other cash advance funding source that partners with Payment Facilitator or its affiliated entities without the consent of American Express.
- Sponsored Merchant will comply with the American Express Technical Specifications as the same may be amended from time to time.
- Sponsored Merchant will comply with applicable privacy and data protection laws and provide specific and adequate disclosures to Cardholders regarding the collection, use, and processing of personal data.
- Sponsored Merchant acknowledges and agrees:
- Term; Termination
- This Agreement shall commence on the date this Agreement is accepted by Acquirer, whether by signature or by the processing of presented Transactions. Unless earlier terminated as provided in this Agreement, or except as may be provided in a contemporaneously submitted order form, the Agreement shall continue until it is terminated by either party on not less than thirty (30) days’ written notice. If Sponsored Merchant presents, and Payment Facilitator elects to process, Transactions beyond the conclusion of the Initial Term or any Renewal Term, then the terms of this Agreement will continue to govern such processing activity.
- Any Payment Network may terminate or limit this Agreement as permitted by the Operating Rules of such Payment Network.
- In addition to any other termination rights, Acquirer may terminate this Agreement (or, pursuant to clause (I) of this Section 5c, may terminate this Agreement as to any Payment Network) or any Addendum immediately, or may suspend Services or decline to process particular Transactions, with or without notice, if (A) Sponsored Merchant fails to strictly comply with any term of this Agreement; (B) Acquirer, in its sole discretion, determines that Sponsored Merchant or any affiliated entity or individual is violating the Operating Rules or Applicable Law or is engaging in suspicious, wrongful, fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Acquirer or the Payment Networks (and Payment Facilitator may also suspend Services or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (C) Sponsored Merchant, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (D) Acquirer deems Sponsored Merchant to be financially insecure; (E) Sponsored Merchant materially alters its business; (F) there is a material change in Sponsored Merchant’s processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application; (G) Acquirer receives direction from any Payment Network to terminate this Agreement; (H) Acquirer, in its reasonable discretion, determines that circumstances otherwise warrant immediate termination or suspension; (I) any Payment Network takes any of the Adverse Registration Actions or limits this Agreement pursuant to the Operating Rules thereof; (J) any of Processing Agreements are terminated; or (K) Payment Facilitator has determined it is required to terminate this Agreement by any of the Processing Agreements or Operating Rules. Furthermore, Payment Facilitator may terminate this Agreement at any time upon thirty (30) days’ written notice.
- This Agreement shall automatically terminate to the extent required by the Operating Rules.
- In addition to any other termination rights, Sponsored Merchant may terminate this Agreement if we have failed to perform a material obligation in this Agreement and such failure has not been cured for thirty (30) days after Sponsored Merchant notifies Payment Facilitator in writing of such failure.
- All Sponsored Merchant obligations with respect to Transactions processed under this Agreement shall survive any termination, including, without limitation, the obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- Non-Exclusivity
- This Agreement is non-exclusive. Sponsored Merchant may receive services, or enter into an agreement to receive services, with another merchant acquirer. Likewise, Sponsored Merchant acknowledges and agrees that Payment Facilitator may provide services to other sponsored merchants.
- Procedures for Transactions
- Within forty-eight (48) hours (or any shorter period mandated by the Operating Rules) after the completion of a Transaction Sponsored Merchant believes to be authorized by a Cardholder, Sponsored Merchant shall submit all Transaction Information therefor to Payment Facilitator for processing. Sponsored Merchant shall submit such information to Payment Facilitator, along with any other information that may reasonably be requested in connection with a Transaction, in such form as Payment Facilitator may specify from time to time. Sponsored Merchant understands that failure to submit such Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and Sponsored Merchant agrees to pay any such fees if assessed; and/or (b) compromise Sponsored Merchant’s ability to be paid for the Transaction(s).
- Sponsored Merchant shall not submit for processing: (a) any Transaction that does not involve Sponsored Merchant, or that does not originate from an interaction between Sponsored Merchant and a Cardholder intending to make a purchase from or donation to Sponsored Merchant; (b) any Transaction for which Sponsored Merchant does not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of Sponsored Merchant’s normal course of business as reflected on the Sponsored Merchant Application. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Agreement.
- Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for Sponsored Merchant that aligns with the Sponsored Merchant’s sales volume, as indicated on the Sponsored Merchant Application.
- Settlement
- Except as elsewhere provided herein, after receiving funds for approved Transactions from any Payment Network, Payment Facilitator will direct Processor and/or Bank to provisionally fund Sponsored Merchant’s Settlement Account, minus (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amounts authorized to be retained under Sections 22 or 23 of this Agreement. Failure to subtract such amounts does not relieve Sponsored Merchant of liability or responsibility for the same, and Sponsored Merchant agrees that Payment Facilitator may Sponsored Merchant agrees to pay all such amounts to Acquirer immediately upon receipt of any invoice and without deduction or offset. Prior to such funding, Processor or Bank, as applicable, may maintain funds associated with Sponsored Merchants’ transactions in a commingled account, and Sponsored Merchant shall have no right to such account, the funds therein, or interest, if any, obtained thereon. Sponsored Merchant acknowledges that Payment Facilitator is not a licensed money transmitter and shall not take receipt of any funds for purposes of transmission to Sponsored Merchant.
- For each approved Transaction for which Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, Sponsored Merchant hereby irrevocably authorizes Payment Facilitator to deliver instructions to Bank and/or Processor with regard to the amount and timing of payments to be made to the Settlement Account, including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts in respect of Payment Facilitator’s fees) and (b) pay remaining settlement funds, if any, to the Settlement Account.
- Sponsored Merchant must maintain a Settlement Account at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks. Sponsored Merchant authorizes Acquirer to initiate debit and credit entries to the Settlement Account, including through the ACH settlement process or via wire transfer, and agrees that Acquirer may debit the Settlement Account for any amounts owed hereunder to Acquirer or to which Acquirer or any of its affiliates may otherwise be entitled for any reason, including, but not limited to, amounts owed to Acquirer or any of its affiliates under any other agreement with Sponsored Merchant. Sponsored Merchant agrees to execute any additional documentation necessary to debit the Settlement Account as described herein. Such authorization shall remain in place until the later of termination of this Agreement or Sponsored Merchant’s satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. Sponsored Merchant may change the Settlement Account only as provided in Section 21 of this Agreement. Sponsored Merchant shall maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds, and shall be solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
- Sponsored Merchant acknowledges and agrees that: (a) Payment Facilitator, Processor, and Bank shall have no liability or responsibility for delays in the transmission or deposit of funds or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Sponsored Merchant or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) time periods set forth in Payment Facilitator’s marketing material, brochures, collateral and/or similar materials are estimates only; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) Payment Facilitator shall not be liable or responsible for any delays in the transmission or deposit of funds due or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Processor or Bank.
- Acquirer reserves the right to refuse to process any Transaction if Acquirer, in its sole discretion, believes that the Transaction may be uncollectible from the Cardholder, is likely to result in a Chargeback, and/or was presented in violation of the terms of this Agreement, the Processing Agreements, Applicable Law, and/or the Operating Rules.
- Sponsored Merchant acknowledges that all payments and credits provided to Sponsored Merchant are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Agreement and the Operating Rules.
- Marks and Intellectual Property
- Sponsored Merchant shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Agreement or at the direction of any Payment Network. Sponsored Merchant acknowledges that all such logos, marks, advertising and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network, which ownership Sponsored Merchant agrees not to challenge, and that such Payment Network may prohibit Sponsored Merchant’s use thereof at any time and for any reason, with or without notice. Further, from time to time, Payment Facilitator may provide Sponsored Merchant with materials that include Payment Facilitator’s name, logo, trademarks, and/or service marks. Sponsored Merchant shall only use such materials as expressly permitted by Payment Facilitator, and shall return to Payment Facilitator such materials upon the termination of this Agreement for any reason or upon Payment Facilitator’s earlier request at any time. Sponsored Merchant shall not at any time represent, directly or by implication, that its goods or services are endorsed, sponsored, or guaranteed by Acquirer or any Payment Network. This Agreement shall not confer on Sponsored Merchant any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
- Acquirer may require any changes to Sponsored Merchant’s website or otherwise that Payment Facilitator deems necessary or appropriate to ensure that Sponsored Merchant remains in compliance with the Operating Rules governing the use of the intellectual property described in Section 9a.
- All of Payment Facilitator’s computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services are and will remain the sole and exclusive property of the Payment Facilitator. Payment Facilitator shall own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from Sponsored Merchant’s request.
- Data Security
- Sponsored Merchant acknowledges that it is its responsibility to abide, and agrees to abide, by all Security Standards, including PCI DSS, and to provide proof of compliance to Acquirer or any Payment Networks as required or upon request, including, without limitation, by attestation or an examination of Sponsored Merchant’s systems to validate such compliance. The costs of any such attestation or examination shall be Sponsored Merchant’s sole responsibility.
- Without in any way limiting the obligations imposed by the preceding paragraph, Sponsored Merchant will (a) secure and keep confidential Cardholder information, Card Information and Transaction Information, including, but not limited to, the magnetic stripe and Card Verification Value 2 (“CVV2”), in strict compliance with this Agreement, the Security Standards, and Applicable Law, and will not use, disclose, or distribute any such information except as permitted by the Security Standards or Applicable Law and, further, may not disclose or distribute such information to any third party other than a third-party service provider described in Section 10c; and (b) maintain systems and media containing any Cardholder information, Card Information or Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information.
- To the extent Sponsored Merchant uses any third party to process, store, receive, transmit, and/or otherwise have access to Cardholder information, Card Information, and/or Transaction Information, Sponsored Merchant assumes full responsibility and liability for such third-party’s compliance with this Agreement, the Security Standards, and Applicable Law. Furthermore, neither Sponsored Merchant nor any such third party shall request CVV2 for card present transactions. Payment Facilitator, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which shall be the sole responsibility and liability of Sponsored Merchant. Sponsored Merchant further agrees to notify Payment Facilitator of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks and are compliant with all applicable Security Standards. Acquirer further reserves the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and to terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
- If Sponsored Merchant discovers or at any time has reason to suspect that a Data Compromise Event has occurred, Sponsored Merchant must immediately notify Payment Facilitator and fully cooperate, at its expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if Sponsored Merchant is undergoing a forensic investigation at the time it signs the Sponsored Merchant Application, it must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules shall be the exclusive responsibility of Sponsored Merchant.
- Sponsored Merchant acknowledges that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on its systems or those of any third party referenced in Section 10c may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Without limiting Sponsored Merchant’s liabilities under any other provision hereof, Sponsored Merchant agrees to fully indemnify Payment Facilitator, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, or any third parties associated with Sponsored Merchant’s actual or alleged failure, or the actual or alleged failure of any third party referenced in Section 10c, to comply with the Security Standards or the occurrence of any Data Compromise Event.
- In the event Sponsored Merchant operates a website capable of accepting Cards, then, in addition to all other obligations specified herein, Sponsored Merchant agrees to maintain, display, and abide by a Cardholder data privacy policy.
- Sponsored Merchants acknowledge that Payment Facilitator shall have no obligation to migrate or export Cardholder information, Card Information, and/or Transaction Information, including to Sponsored Merchant, at any time, including at the termination of this Agreement.
- Authorized Users
- To the extent Sponsored Merchant is granted electronic access to any of Acquirer’s systems or portals, Sponsored Merchant shall be responsible for (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying Payment Facilitator of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such actions were not authorized by Sponsored Merchant.
- Sponsored Merchant is responsible for the acts and omissions of its owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services. Without limiting the preceding sentence, such acts and omissions will be viewed as acts and omissions of Sponsored Merchant for purposes of determining if there has been a breach of this Agreement by Sponsored Merchant and the availability of any right or remedy related to such breach.
- Pricing and Payment
- Sponsored Merchant agrees to pay Processing Fees in the amounts specified in the fee schedule provided to and/or selected by Sponsored Merchant contemporaneously with Sponsored Merchant’s acceptance of this Agreement, as the same may be amended from time to time pursuant to this Agreement. The Processing Fees are qualified in all respects by the other terms of this Agreement, including the assumptions referenced herein.
- Except as otherwise set forth in a Sponsored Merchant Agreement, if a Transaction is revoked, Sponsored Merchant will incur a $5 ACH return fee. If a Transaction is disputed (e.g., a chargeback is initiated, including an ACH chargeback pursuant to reason code R05, R07, R08, R10, R29, R51, or R52), Sponsored Merchant will incur a $25 dispute fee. Following a revocation or dispute of a Transaction, no subsequent sales Transactions or entries should be initiated by the Sponsored Merchant associated with such Transaction.
- Sponsored Merchant is responsible for payment of refunds, Chargebacks, Processing Fees, indemnified losses, assessments, fees and/or other amounts charged by or payable to Acquirer, the Payment Networks, and/or other parties related to or associated with Sponsored Merchant’s use of the Services, its Transactions, and/or its processing activity (such fees and other amounts charged by or payable to any person other than Payment Facilitator, the “Third-Party Charges”). Acquirer may at any time, with or without notice, collect such amounts (a) pursuant to Section 8 of this Agreement; (b) by demanding immediate payment; (c) by debiting the Settlement Account or any Reserve Funds; or (d) by subtracting such amounts from future settlements.
- Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or parties other than Payment Facilitator.
- In addition, Acquirer may amend, revise, change, or supplement the Processing Fees by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to the Payment Networks or other third parties) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation.
- Sponsored Merchant agrees with, and represents and warrants to, Acquirer that such fee schedule constitutes an adequate Fee Disclosure for purposes of the Operating Rules and Applicable Law.
- Sponsored Merchant acknowledges and agrees that it shall be solely responsible for, and the Processing Fees do not cover or include: (a) fines, loss allocations, liability assessments, penalties, and/or similar charges imposed on or assessed against Sponsored Merchant or Acquirer by third parties (including the Payment Networks) and/or (b) all communication expenses associated with its processing activity.
- If Sponsored Merchant does not pay any refunds, Chargebacks, Processing Fees, indemnified losses, or other amounts payable to Acquirer or the Payment Networks when due, such amounts will accrue interest at the lesser of 1.5% per month or the highest amount permitted by applicable law.
- Taxes
- Sponsored Merchant shall be solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of Sponsored Merchant’s goods or services or receipt of donations. Unless Sponsored Merchant is otherwise exempt (and can prove such exemption to Acquirer’s satisfaction), Sponsored Merchant agrees to pay all taxes imposed on the services, equipment, or other property provided to Sponsored Merchant pursuant to this Agreement.
- Chargebacks
- Sponsored Merchant has full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with its Transactions.
- If Sponsored Merchant has reason to dispute or respond to a Chargeback, then Sponsored Merchant must do so by the date provided on the applicable Chargeback notice. Payment Facilitator, Processor, and Bank shall have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback.
- If Acquirer, in its sole discretion, determines that Sponsored Merchant is experiencing excessive Chargebacks, then it may (i) with notice, increase the Processing Fees; (ii) without notice, establish or increase the Reserve Funds; (iii) without notice, suspend the Services; or (iv) without notice, terminate this Agreement.
- Sponsored Merchant shall not ask or require that a Cardholder waive a right to dispute a transaction.
- Indemnification
- Sponsored Merchant shall indemnify and hold Payment Facilitator, Processor, and Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by any of them arising out of: (i) Sponsored Merchant’s acts or omissions, or those of its owners, employees, consultants, contractors, agents, officers, and directors, whether or not those acts or omissions were authorized by Sponsored Merchant (including, without limitation, any obligation of Payment Facilitator to indemnify Processor or Bank with respect to any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (ii) Sponsored Merchant’s Transactions or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (iii) Sponsored Merchant’s breach of this Agreement or violation of Applicable Law or Operating Rules; (iv) the state or configuration of Sponsored Merchant’s equipment, including, without limitation, Sponsored Merchant’s failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; and/or (v) Sponsored Merchant’s use of third-party services or service providers, including gateways, value added resellers, and independent software vendors.
- Without limiting the preceding subsection, in the event that Payment Facilitator, Processor, or Bank is named as a party to any claims, litigation, proceeding, arbitration, or other legal process commenced by a third party arising out of or relating to any act or omission by Sponsored Merchant, Sponsored Merchant shall indemnify, protect, and hold harmless Payment Facilitator, Processor, and Bank with respect to any and all liability associated with such claims, litigation, proceeding, arbitration, or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
- Obligation to Report Statement Discrepancies
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
Statements provided online shall be deemed received the first day they are available online. - YOU ACKNOWLEDGE AND AGREE THAT NEITHER PAYMENT FACILITATOR, PROCESSOR, NOR BANK SHALL BE LIABLE OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO PAYMENT FACILITATOR IN WRITING WITHIN FORTY FIVE (45) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
- You acknowledge and agree that you shall reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit or other means from your Settlement Account or the Reserve Funds.
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
- Limitation of Liability and Disclaimer of Warranties
- UNDER NO CIRCUMSTANCES SHALL ACQUIRER’S AGGREGATE FINANCIAL RESPONSIBILITY FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO PAYMENT FACILITATOR BY SPONSORED MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, AND/OR BANK BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
- FOR PURPOSES OF THIS SECTION 17, FEES OR CHARGES OF THE PAYMENT NETWORKS OR OTHER THIRD PARTIES PASSED THROUGH TO CUSTOMER PURSUANT TO THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, OR BANK, OR ANY OF ITS OR THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY SPONSORED MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK SHALL NOT BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
- PAYMENT FACILITATOR, PROCESSOR, AND BANK MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, EQUIPMENT AND/OR SERVICES PROVIDED HEREUNDER AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SPONSORED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, AND/OR TRADE.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK DO NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES, EQUIPMENT, SOFTWARE, AND/OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; (C) THAT A PRODUCT WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULTS; (D) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS; OR (E) THAT A PRODUCT WILL OPERATE WITHOUT INTERRUPTION.
- Underwriting, Monitoring, and Auditing Rights
- Sponsored Merchant, on behalf of itself and its principals and beneficial owners, acknowledges and agrees that Acquirer may request and obtain external reports, including background checks, credit checks, banking relationship reports, financial history, and credit reports from credit reporting agencies, in connection with the consideration of the Sponsored Merchant Application or at any time thereafter. Sponsored Merchant further acknowledges that its Sponsored Merchant Application may be rejected by Acquirer and that Acquirer shall not have any liability associated with such rejection.
- Sponsored Merchant agrees to promptly furnish Acquirer and any requesting Payment Network with information and documents reasonably necessary to evaluate Sponsored Merchant’s financial condition and business practices upon request. Furthermore, with notice and during Sponsored Merchant’s normal business hours, any of Acquirer’s respective representatives or the representatives of any Payment Network may visit Sponsored Merchant’s business premises to examine Sponsored Merchant’s operations, activities, and/or books and records to the extent necessary to evaluate Sponsored Merchant’s compliance with this Agreement or to the extent necessary for Payment Facilitator to meet its obligations under the Processing Agreements or for the Acquirer to meet its obligations under the Operating Rules.
- Sponsored Merchant agrees to provide Payment Facilitator advance written notice of any actual or anticipated (a) material change in Sponsored Merchant’s products or services, business practices, or the manner in which Sponsored Merchant accepts Cards; (b) change to Sponsored Merchant’s legal form, legal name, trade name, or mailing address; or (c) changes to anticipated Transaction amounts or volume.
- Sponsored Merchant agrees to provide Acquirer with all “know your customer” information that it reasonably requests from time to time, including, without limitation, any information (a) necessary to meet a person’s obligations under, inter alia, United States anti-terrorism or anti- money laundering laws or (b) Payment Facilitator is required to diligence, obtain and/or verify under any of the Processing Agreements or under the Operating Rules (including the names and country of domicile of each of the Sponsored Merchant’s principals and reports of all Transactions).
- Sponsored Merchant shall provide such information within twenty-four (24) hours of a request for the same. Without limiting the foregoing, Sponsored Merchant shall, on an ongoing basis (and at least quarterly), provide Payment Facilitator with each of its office addresses, uniform resource locaters, “doing business as” names, as well as complete descriptions of all goods and services provided by such Sponsored Merchant.
- Reporting
- Sponsored Merchant acknowledges that, under the Operating Rules of the Payment Networks, certain Sponsored Merchant activity and terminations of Sponsored Merchant processing agreements may result in Acquirer’s reporting merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). Sponsored Merchant, on behalf of itself and its principals (and with such principals’ explicit authorization), hereby consents to such reporting and waives any claim related to the same, even in instances where Sponsored Merchant or its principals believe that reporting to have been improper or in error.
- Relationship of the Parties
- Sponsored Merchant designates Acquirer as its agent to receive payments for Transactions processed pursuant to this Agreement. Payment Facilitator, Processor, and/or Bank, however, shall not be considered a partner or fiduciary to Sponsored Merchant, and nothing in this Agreement or the rendition of Services related to this Agreement shall be deemed to create a joint venture, partnership, and/or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm’s length commercial relationship.
- Updates to Settlement Account
- If Sponsored Merchant intends to change its Settlement Account, it must give no fewer than fifteen (15) days’ prior written notice to Payment Facilitator and receive Payment Facilitator written approval of the change. Failure to provide the notice and obtain the approval required in this Section may result in Acquirer’s inability to settle Transaction proceeds to Sponsored Merchant, and may result in the misdirection or loss of the same. Sponsored Merchant shall bear sole responsibility for any such loss and shall have no right of recovery against Payment Facilitator, Processor, and/or Bank associated with such misdirection or loss.
- Reserve Account and Security Interest
- Payment Facilitator, Processor, and/or Bank may at any time, whether at the inception of this Agreement or thereafter (including at the time of termination of this Agreement), require the establishment of Reserve Funds to satisfy Sponsored Merchant’s current or anticipated obligations hereunder, including, without limitation, its obligations with respect to refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Further, at any time during the term of this Agreement or at its termination, Payment Facilitator, Processor, and/or Bank may increase the amount of Reserve Funds established as described herein. All decisions relating to whether to establish one or more Reserve Funds, set the amount of, or increase the Reserve Funds will be in Payment Facilitator, Processor, and/or Bank’s discretion.
- Reserve Funds may be funded by (i) debiting the amount of Transactions that would otherwise be payable to Sponsored Merchant under this Agreement; (ii) demanding funds from Sponsored Merchant; or (iii) debiting the Settlement Account. If Payment Facilitator, Processor, and/or Bank makes a demand for funds pursuant to this Section 22b, Sponsored Merchant shall promptly transfer the amount of funds demanded.
- Reserve Funds may be used at any time to satisfy Sponsored Merchant’s obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer and/or the Payment Networks.
- Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on Sponsored Merchant’s account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy Sponsored Merchant’s current or anticipated obligations under this Agreement, the Operating Rules, and/or Applicable Law.
- Until the expiration of the period referenced in the preceding subsection, Sponsored Merchant shall have no ownership interest in or right to the Reserve Fund. Rather, the Reserve Funds shall be the exclusive property of Payment Facilitator, Processor, and/or Bank. Furthermore, Sponsored Merchant shall have no right to receive interest on any funds maintained in any of the Reserve Funds, which shall be the exclusive property of Payment Facilitator, Processor, and/or Bank.
- Without in any way limiting the foregoing, and merely as an additional form of security, Sponsored Merchant hereby further grants Payment Facilitator a security interest in (a) the Reserve Funds; and (b) the proceeds associated with any Transaction. Payment Facilitator may enforce its security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until Sponsored Merchant satisfies all its obligations to Acquirer. Sponsored Merchant further agrees to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Agreement.
- Holdback Rights
- In addition to any of the other rights granted to Acquirer hereunder, in the event that Acquirer, at any time during the term of this Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, or excessive Chargebacks) or (b) to enable Payment Facilitator or Processor to exercise its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. To the extent (i) the investigation conducted by Acquirer with respect to the unusual, suspicious, or risk-exposing activity determines that such activity is reasonably likely to result in amounts being due from you to Acquirer, and (ii) Acquirer requires the establishment, replenishment, or increase of one or more Reserve Funds in connection therewith, then the funds held pursuant to this Section 23 may be used to fund such Reserve Funds.
- Equipment
- Payment Facilitator, Processor, and Bank make no representations or warranties regarding the compatibility of third-party products and services with Acquirer’s systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer’s respective systems, you understand that a separate agreement may be required with the third-party provider in order to obtain such software, services, or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
- Sponsored Merchant shall be responsible for any fines, penalties, claims, demands, or new or increased fees (including interchange) that result from Sponsored Merchant’s (a) use of value added reseller, independent software vendor, gateway, point of sale systems, or any other software, hardware, or service not provided by us; (b) failure to maintain the most current version of software that has been certified by Payment Facilitator, Processor, and Bank as being compatible with the their respective systems; or (c) misuse of software that has been certified as compatible with Acquirer’s respective systems. Notwithstanding anything in this Section 24b, Sponsored Merchant shall not use any third-party point of sale systems, or any other device or method used for the purpose of obtaining credit or debiting a designated account (including any Card), without the prior written consent of Payment Facilitator.
- To the extent that Sponsored Merchant elects to purchase, lease, or use processing equipment from Acquirer, Sponsored Merchant agrees to pay the stated purchase price or lease amounts, along with all applicable taxes and shipping costs, and agrees that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to Sponsored Merchant’s Settlement Account.
- Equipment provided by Acquirer may only be used for purposes of this Agreement and the receipt of Services pursuant to this Agreement. Sponsored Merchant shall keep any such equipment in a good state of repair, normal wear and tear excepted, and shall follow all instructions regarding the use and maintenance thereof. Sponsored Merchant shall not, and shall not permit others to, alter, modify, and/or deface any such equipment or inscribe or etch anything thereon or attach or affix anything thereto. With respect to leased equipment, title to such equipment remains with the provider at all times, and Sponsored Merchant acquires no right, title, or interest in any such other than the right to use equipment to receive the Services for the period during which the provided thereof permits Sponsored Merchant to use the same. Sponsored Merchant must give Acquirer access to any such equipment at all times, and Acquirer may repair or replace any such equipment at any time. With regard to any equipment provided to Sponsored Merchant, Sponsored Merchant shall bear all risk of loss, damage, destruction, theft, and/or similar to such equipment from any cause whatsoever (each a “Loss Event”) during the term hereof and until such equipment has been returned to the provider thereof. Sponsored Merchant shall return such equipment, at its risk and expense, upon the earlier of the expiration or termination hereof. Sponsored Merchant shall immediately notify Payment Facilitator upon the occurrence of any Loss Event. Sponsored Merchant shall not distribute, sell, transfer, share, sublease, rent and/or give away any such equipment or any interest therein or use, or permit the use of, such equipment by or on any third party’s behalf, except that Sponsored Merchant may allow its customers to use equipment in the course of completing a Transaction.
- Confidentiality and Use of Data
- Sponsored Merchant shall use Card Information solely to receive Services under this Agreement. Under no circumstances shall Sponsored Merchant sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
- Except in response to a validly served subpoena, Sponsored Merchant will not provide Card Information to anyone except to Acquirer, the Payment Networks, or Sponsored Merchant’s agents that have been approved by Processor and are properly registered with Payment Networks for purposes of assisting Sponsored Merchant in completing Transactions. Should Sponsored Merchant receive a subpoena that encompasses Card Information, Sponsored Merchant will notify Payment Facilitator in writing of its receipt of such a subpoena as soon as practicable.
- Sponsored Merchant agrees to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information, Transaction Information, and Cardholder information; (d) any other non-public information regarding any aspect of Acquirer’s respective businesses made available to, or encountered by, Sponsored Merchant under the auspices of this Agreement (“Acquirer Confidential Information”); or (e) other information Payment Facilitator is required to keep confidential. Acquirer Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing or business development plans, technical information, personnel information, and trade secrets.
- Should Sponsored Merchant receive any Acquirer Confidential Information belonging to Acquirer, Sponsored Merchant agrees to protect such confidential information equally to its own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. Sponsored Merchant agrees to return Acquirer’s respective confidential information either upon the termination of this Agreement for any reason, or upon earlier request from Acquirer.
- To the extent permitted by Applicable Law and the Operating Rules, Sponsored Merchant authorizes Acquirer to disclose information regarding Sponsored Merchant to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. Sponsored Merchant authorizes Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of Services under this Agreement. Sponsored Merchant further authorizes Acquirer to provide information about Sponsored Merchant in response to requests for such information from any government body or regulatory authority.
- Notwithstanding anything else in this Agreement, and without otherwise limiting Acquirer’s use of such information, all Card Information, information related to Transactions or Cardholders, and information related to Sponsored Merchant, may be used by Payment Facilitator, Processor, and/or Bank and its or their respective affiliates and designees: (a) to provide Services; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or services; (d) in the course of any sale or reorganization of any of Acquirer’s respective business; (e) to comply with Applicable Laws; (f) for disclosure to credit reporting agencies and other financial institutions; and (g) as otherwise permitted by Applicable Laws.
- Amendments and Waiver
- Payment Facilitator may amend, revise, change, or supplement this Agreement by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to changes to the Operating Rules or Applicable Law) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Rules or Applicable Law may be made on less than thirty (30) days’ notice and shall not be grounds for termination of this Agreement.
- Payment Facilitator will not be deemed to have waived any provision of this Agreement by failing to promptly enforce the same, and no waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision of this Agreement or the same provision on any other occasion.
- Notices; Electronic Notice
- All notices under this Agreement to Payment Facilitator, Processor, and/or Bank must be in writing and delivered via hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices to Payment Facilitator, Processor, and/or Bank must be sent to the addresses respectively designated on the Sponsored Merchant Application for those entities, and will be deemed effective upon receipt. Acquirer may provide Sponsored Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Sponsored Merchant Application (or such other address as Sponsored Merchant may provide); (b) electronically, through the Sponsored Merchant portal or through any other means of electronic communication maintained by Acquirer which Sponsored Merchant may access; or (c) electronically, via any email address designated by Sponsored Merchant. Sponsored Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the Internet for so long as this Agreement is in effect and until all of its obligations hereunder have been satisfied in full. Notices delivered through any of the foregoing means shall include notice provided on statement messages appearing on periodic processing statements.
- Choice of Law and Venue; Time and Procedure for Assertion of Claims
- All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation, or enforceability of the choice of law and venue provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
- Without in any way limiting Section 30 (Arbitration), with respect to any action arising out of, relating to, or in connection with this Agreement, Sponsored Merchant and all individuals executing this Agreement in any capacity hereby consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in the State of New York.
- Each party agrees to provide the other prompt notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon either party’s election, the parties will participate in non-binding mediation before a mutually agreed mediator. Any controversy, claim, or dispute that is not resolved through the procedures set forth above within sixty (60) days following the initial notice (or such longer period as the parties may agree) will be resolved pursuant to arbitration pursuant to Section 30 of this Agreement.
- Neither party may bring a claim more than two (2) years after the underlying cause of action first accrues.
- Attorneys’ Fees
- Sponsored Merchant agrees to reimburse Payment Facilitator for all attorneys’ fees or other costs incurred by it in enforcing any provision of this Agreement against Sponsored Merchant, or in obtaining any sums due under this Agreement from Sponsored Merchant, regardless of whether those fees are incurred in connection with a court proceeding, private dispute resolution, or outside a formal dispute resolution proceeding.
- Arbitration
- ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief.
- The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in State of New York (although, for the convenience of the Sponsored Merchant or guarantor (as applicable), any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Sponsored Merchant and guarantor (if applicable) shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the New York Supreme Court at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 30 is found invalid or unenforceable, the other parts of this Section 30 shall still apply.
- SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
- Remedies Cumulative
- The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative.
- Assignment; Successor Responsibility
- The Bank may assign this Agreement without Sponsored Merchant’s consent. Processor may assign this Agreement to another transaction processor approved by Bank. Payment Facilitator may assign this Agreement to another payment facilitator, to Processor, to one of its affiliates, by operation of law, or in connection with the sale of all or substantially all of its assets. Sponsored Merchant may not assign this Agreement without the express written consent of Payment Facilitator, except as otherwise provided in the Processing Agreements. For purposes of this Agreement, it shall be deemed an assignment by Sponsored Merchant of this Agreement to effectuate any sale or transfer of the equity interests of Sponsored Merchant’s business such that the equity holders listed in the Sponsored Merchant Application collectively hold less than 50% of the equity interests after such sale or transfer. This Agreement will be binding on each party’s successor(s) and/or permitted assigns.
- Third Party Beneficiaries
- Processor and Bank are third-party beneficiaries to this Agreement and may enforce the terms hereof, including those rights and privileges belonging to “Acquirer.” In addition, the Payment Networks are third-party beneficiaries of this Agreement and shall have the rights, but not any obligation, necessary to fully enforce the terms of this Agreement against Sponsored Merchant. There are no other third party beneficiaries to this Agreement.
- Force Majeure
- Payment Facilitator, Processor, and/or Bank shall not be liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, governmental actions, strikes, telecommunications failures, equipment failures, network failures, or other causes beyond such person’s reasonable control.
- Entire Agreement; Severability
- This Agreement constitutes the complete and final agreement between the parties and supersedes all prior oral or written agreements related to its subject matter. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by all parties hereto. If any provision of this Agreement is deemed unlawful or unenforceable, then it shall be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of the Agreement, which shall continue in full force and effect.
- Survival
- Termination of this Agreement shall not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive or be perpetual of irrevocable. Such provisions, including, without limitation, Sections 1, 3f, 5g, 8c, 8f, 9 through 17, 19 through 25, 26b, and 27 through 35 shall survive the expiration or termination of this Agreement.
- Press Release
- Payment Facilitator may issue press releases regarding the parties’ relationship hereunder, after this Agreement becomes effective. Sponsored Merchant shall not make any such public disclosure without Payment Facilitator’s prior written consent.
- Electronic Signature
- This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. A signature or other indication of acceptance received electronically or via facsimile (including by checking a box or clicking a link stating, “I Agree,” or words to similar effect) shall be legally binding for all purposes and equally effective as a wet ink signature.
- Consent to Receipt of Electronic Communications
- From time to time we may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this Agreement confirms your ability and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
- Under this Consent, we may provide all Communications electronically by email or by making them accessible via our websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Agreement, our Privacy Policy, and our Software as a Service Agreement) (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, and (4) all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
- To access and retain the electronic Communications, you will need the following:
- A computer or mobile device with Internet or mobile connectivity.
- For desktop website-based Communications:
- Recent web browser that includes 256-bit encryption;
- The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and
- Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
- For application-based Communications:
- A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
- The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
- Access to the email address used to create an account for the Services.
- Sufficient storage space to save Communications and/or a printer to print them.
- If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add support@paymentbrands.com to your email address book.
- You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to 10133 Sherill Boulevard, Suite 120, Knoxville, Tennessee 37932 (“Company Address”) within 180 days of the date of the original Communication, specifying in detail the Communication you would like to receive in paper form. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
- You may withdraw your consent to receive electronic Communications at any time, by writing to the Company Address. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Company will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
- You can change your email address by writing to the Company Address. You may also be able to change your email address yourself through the Services.
Addendum 1: MERCHANT SERVICES AGREEMENT FOR SUB- MERCHANTS
- Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause employees and third parties acting as Sub-merchant’s agent (“Agents”) to comply, with each Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks, including with respect to the use of an Association’s mark(s) (collectively "Operating Regulations"). Such Operating Regulations are incorporated by reference, and will control with respect to any conflict in terms between this Agreement and such Operating Regulation. Sub-merchant acknowledges and agrees that it is not a third-party beneficiary of any Operating Regulation, however, an Association may be a third-party beneficiary of this Agreement, and that certain Operating Regulations govern the relationships between various parties such as the Associations, Processor, Member Bank, and/or other entities (e.g., partners, etc.), and that any failure by Processor to abide by such Operating Regulation does not provide the basis for a breach of the Agreement claim by Merchant or any other third party. The Associations make excerpts of their Operating Regulations available online, including via: https://www.mastercard.us/en-us/business/overview/support/rules.html; https://usa.visa.com/support/consumer/visa-rules.html; https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf; https://www.americanexpress.com/merchantopguide. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Sub-merchant hereby authorizes Acquirer to conduct background checks on Sub-merchant, including but not limited to credit checks and banking and financial history investigations, and share any information required by an Association. Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC), and provide all necessary documentation to Acquirer promptly upon request. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers. If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub- merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions. Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.
- Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data, including CVV2, in plain view when mailed; ii) add any tax or surcharge to transactions, except in compliance with Operating Regulations and applicable law; iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant;v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
- Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer or an affiliate of Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer or an affiliate of Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer or affiliate of Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer or an affiliate of Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer or an affiliate of Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer or an affiliate of Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
- Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.
- Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
- EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub- merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then- current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub- merchant.
- Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.
Effective January 30th 2023 to February 14th 2024
DownloadTable of Contents
- Definitions
- “Acquirer” refers to Payment Facilitator, Processor, and/or Bank, any of which shall have the authority to exercise rights belonging to the Acquirer hereunder.
- “Addendum” (and the plural, “Addenda”) refers to each Addendum attached hereto, or any other Addendum otherwise executed or agreed to between the parties.
- “Agreement” refers to these terms and conditions, along with the attached Addenda and the Sponsored Merchant Application, as any of the same may be amended from time to time pursuant to these terms.
- “American Express” refers to American Express Travel Related Services Company, Inc. or its successors or assigns.
- “Applicable Law” refers to all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance, including all laws in both the Cardholder and the Sponsored Merchant’s jurisdictions.
- “Bank” refers to the acquiring bank identified in the Sponsored Merchant Application, or such other acquiring bank(s) as Payment Facilitator or Processor may contract with to provide sponsorship with the Payment Networks, as well as any successors and assigns of such acquiring bank(s).
- “Card” refers to an account, or evidence of an account, authorized and established between a Cardholder and a Payment Network, or representatives or members of a Payment Network, that Sponsored Merchant accepts from Cardholders as payment for a good or service.
- “Card Information” refers to all information related to a Cardholder or Card obtained by Sponsored Merchant in connection with a Transaction, including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, or account balances.
- “Cardholder” refers to the person or entity to whom a Card is issued or who is authorized to use a Card.
- “Chargeback” refers to the reversal of any Transaction pursuant to the Operating Rules for whatever reason.
- “Data Compromise Event” refers to any event that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information, Cardholder information and/or Card Information.
- “Discover” refers to Discover Financial Services, LLC or its successors or assigns.
- “Mastercard” refers to Mastercard International Incorporated or its successors or assigns.
- “Operating Rules” refers to all rules, bylaws, programs, and regulations of the Payment Networks, as the same are amended from time to time, including, without limitation, the provisions thereof governing or otherwise applicable to “Merchants,” “Sponsored Merchants,” or “Submerchants.” Operating Rules for Visa and Mastercard are presently available online at usa.visa.com and www.mastercard.us, respectively. The Operating Rules are explicitly incorporated by reference into this Agreement.
- “Payment Facilitator,” “Ministry Brands Holdings, LLC,” or “we” refers to Ministry Brands Holdings, LLC.
- “Payment Network” refers to each of Visa, Mastercard, American Express, Discover, and any card network issuing credit or debit cards, and, for purposes of this Agreement, further includes the Payment Card Industry Security Standards Council.
- “PCI DSS” refers to the Payment Card Industry Data Security Standards.
- “Processing Fees” refers to the fees and charges set forth on the fee schedule that is part of the Sponsored Merchant Application and this Agreement or any Addenda thereto, as modified or amended from time to time, whether by the Payment Networks or by Acquirer pursuant to this Agreement, including, without limitation, by messages included on any processing statement.
- “Processor” refers to Worldpay LLC and its successors and assigns, or such other payment processor as Payment Facilitator may contract with to provide payment processing functionality.
- “Reserve Funds” refers to funds placed in one or more non-segregated and non-interest bearing accounts established by Acquirer in accordance with this Agreement to ensure payment of all obligations or anticipated obligations hereunder, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Security Standards” refers to all rules, regulations, or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, PCI DSS, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and any successor rules, regulations or standards, in each case, as any of the same may be amended from time to time.
- “Services” refers to those services provided by Acquirer, necessary and required to facilitate the authorization, processing, and settling of Transactions.
- “Settlement Account” refers to the account maintained by Sponsored Merchant at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- “Sponsored Merchant” or “you” refers to the legal entity identified in the Sponsored Merchant Application.
- “Sponsored Merchant Application” refers to the application that Sponsored Merchant completed and signed (including by electronic signature or otherwise electronically indicating acceptance of the terms) and which is subsequently accepted by Acquirer, whether evidenced by the execution of this Agreement or by the processing of presented Transactions.
- “Transaction” refers to any interaction between a Cardholder and a Sponsored Merchant in which a Cardholder uses a Card to purchase Sponsored Merchant’s goods or services or donate to Sponsored Merchant and which results in activity on the Cardholder’s account.
- “Transaction Information” means any data or information resulting from a Transaction, including payment processing-related information collected or stored by Processor or Payment Facilitator, including the price paid for products or services, data, time, approval, unique transaction number, store identifier, and may include Card Information and Cardholder information.
- “Visa” refers to Visa Inc. or its successors or assigns.
- Services
- Subject to Applicable Law and the Operating Rules, Payment Facilitator (or its agents, contractors, or designated representatives) will provide the Services to Sponsored Merchant pursuant to the terms of this Agreement. Sponsored Merchant agrees to abide by, and to use the Services in strict compliance with, Applicable Law, the Security Standards, and the Operating Rules.
- Upon request, Payment Facilitator, Processor, and/or Bank may elect to provide certain Automated Clearing House (“ACH”) processing services to Sponsored Merchant at the rates specified in the Sponsored Merchant Application and under the terms set forth in this Agreement. To the extent Sponsored Merchant uses such ACH processing services, it agrees to abide by the National Automated Clearing House Association (“NACHA”) rules and regulations, as the same may be amended from time to time.
- Sponsored Merchant Representations and Responsibilities
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- The person signing the Sponsored Merchant Application has full legal power and authority to enter into this Agreement;
- Sponsored Merchant meets the definition of, and has satisfied the requirements applicable to, “Merchants” (taking into account the fact that Sponsored Merchant is authorized to accept cards pursuant to this Agreement rather than a merchant agreement), “Sponsored Merchants,” and/or “Submerchants” under the Operating Rules;
- Each statement made by Sponsored Merchant on the Sponsored Merchant Application is and, except as has been disclosed in writing to Payment Facilitator, remains true;
- Sponsored Merchant has its principal place of business in, is located in, and has been formed (if Sponsored Merchant is an entity or organization) under the laws of, the United States;
- The Transaction is legal and genuine, was conducted in accordance with this Agreement, and arises from a bona fide sale of goods or services by, or donation to, Sponsored Merchant (and not by any other entity) in the United States for which, to the extent required by the Operating Rules, authorization was obtained; except as otherwise permitted by the Operating Rules, and where applicable, the goods have been shipped or delivered and/or the services performed; and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose;
- The Transaction is not one that Sponsored Merchant knows or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and the Sponsored Merchant, or that is otherwise unlawful, illegal, or impermissible under this Agreement, Applicable Law or the Operating Rules;
- All information and data provided by Sponsored Merchant in connection with the Transaction is true, correct, and accurate;Sponsor Merchant grants Acquirer the right to provide the same to the Payment Networks; and Sponsor Bank warrants that the provision of such information to the Payment Networks complies with Applicable Law and the terms of any applicable privacy policy(ies) or agreements;
- Sponsored Merchant has taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder;
- The Transaction is not subject to liens, encumbrances, disputes, set- off, or counterclaim (other than ordinary sales taxes);
- The Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules) and the Transaction has not been previously charged back to the Acquirer and subsequently returned to the Sponsored Merchant; provided, however, that Sponsored Merchant may pursue payment from the customer outside of the payment card ecosystem;
- Sponsored Merchant has not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction;
- The Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible;
- The Transaction does not arise from the dishonor of a Cardholder’s personal check;
- Sponsored Merchant has the legal right to sell the goods and services purchased by Cardholder or to accept the donation from the Cardholder via the Transaction and is providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and services, as applicable;
- Sponsored Merchant has accurately provided and has not altered or manipulated its “doing business as” name, country location (which name and country is the same as that disclosed to Cardholders in connection with a Transaction), the description of its business for selection of an appropriate Sponsored Merchant category code/Card acceptor business code (“MCC”), and, as applicable, its unique merchant identification number (“MID”) (defined below) in the authorization request/message and clearing record/message for such Transaction;
- Sponsored Merchant is not operating a business prohibited by the Operating Rules and has correctly identified for Payment Facilitator the MCC that most closely reflects the Sponsored Merchant’s primary business in accordance with applicable MCC guidance from the Payment Networks;
- Sponsored Merchant has made no representation or agreement for the issuance of refunds except as stated in Sponsored Merchant’s refund policy;
- Sponsored Merchant is responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to Payment Facilitator, and/or for any dispute Transaction or credit and has made clear to each Cardholder that the Sponsored Merchant is responsible for the Transaction (including the delivery of goods or provision of services that are the subject of the transaction, if applicable) and for customer service and dispute resolution;
- Sponsored Merchant has not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and
- Any Transaction submitted to Payment Facilitator to credit a Cardholder’s account represents a refund for a Transaction previously submitted to Payment Facilitator.
We reserve the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
- Subject to Applicable Law and the Operating Rules, Sponsored Merchant agrees to accept all categories of Visa and Mastercard Cards unless Sponsored Merchant has notified Payment Facilitator on the Sponsored Merchant Application of its election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. Furthermore, Sponsored Merchant shall not engage in, and shall maintain a policy against engaging in, any practice that discriminates against or discourages the use of any Card in favor of another Card.
- Except to the extent permitted by both Applicable Law and the Operating Rules and as authorized in writing by Payment Facilitator, Sponsored Merchant shall not (i) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); (ii) add any tax to Transactions unless Applicable Law expressly requires such addition (in which case the tax must be included in the Transaction amount and not collected separately); or (iii) set minimum or maximum transaction amounts.
- Sponsored Merchant must not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
- Sponsored Merchant shall maintain a written refund policy and shall disclose such policy to Payment Facilitator and all its customers (including customers making purchases online by displaying such policy on the website) consistent with Applicable Law and the Operating Rules. The amount of any refund shall not exceed the original Transaction except to the extent a Sponsored Merchant agrees to reimburse a Cardholder for return shipping. The refund policy with respect to any Card must be at least as favorable as Sponsored Merchant’s refund policy with respect to other payments products.
- Subject to Applicable Law, the Operating Rules, and the Security Standards, Sponsored Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer upon request from time to time.
- Sponsored Merchant may not bill or collect from any Cardholder for any purchase or payment on a Card unless a Chargeback has been exercised, the Sponsored Merchant has fully paid for such charge, and it otherwise has the right to do (including under Applicable Law).
- At the time of signing the Sponsored Merchant Application, and each time Sponsored Merchant submits a Transaction, Sponsored Merchant agrees with, and represents and warrants to, Payment Facilitator, Processor, and Bank that:
- Processing Agreements; Certain Payment Network Terms
- Sponsored Merchant acknowledges and agrees:
- This Agreement is subject to the terms of each of Payment Facilitator’s agreements with Processor and/or Bank (collectively, the “Processing Agreements”). This Agreement does not, and may not, restrict or interfere with the right of Processor or Bank to terminate this Agreement at any time or the right of Payment Facilitator to terminate this Agreement at any time as required by the Processing Agreements.
- All obligations in or under any of the Processing Agreements that are intended to apply to Sponsored Merchant (including, without limitation, any obligations of a merchant or sponsored merchant thereunder) are hereby incorporated into this Agreement and shall apply to Sponsored Merchant. Notwithstanding anything herein to the contrary, Sponsored Merchant is not a third-party beneficiary of, has no rights under, and may not bring any claim against Processor or Bank relating to, any of the Processing Agreements.
- This Agreement is also subject to the Operating Rules. Without limiting the preceding sentence:
- This Agreement does not limit the Operating Rules or any of Acquirer’s respective rights thereunder.
- Sponsored Merchant may not take any action that could interfere with, or prevent the exercise of, action by any of Payment Networks to (a) enforce any of the Operating Rules, (b) prohibit Payment Facilitator or Sponsored Merchant from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks or to Processor or its affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
- Notwithstanding anything herein to the contrary, to the extent required by a Payment Network, the Operating Rules of such Payment Network shall govern to the extent of any irreconcilable conflict between this Agreement and such Operating Rules.
- In the event that Sponsored Merchant submits for processing in any twelve-month period more than $1,000,000 in Visa transactions and/or $1,000,000 in MasterCard transactions (or such other amount provided by the Operating Rules as necessitating a tripartite processing agreement) (the “Threshold Amount”), Sponsored Merchant will automatically be deemed to have accepted, and will be bound by, the Merchant Agreement (set forth in Addendum 1, Merchant Services Agreement for Sub-Merchants), the terms of which will be independently enforceable by Processor and Bank.
- In addition to the remaining provisions of this Agreement, the following terms and conditions shall govern Sponsored Merchant’s acceptance of Cards issued by American Express:
- Sponsored Merchant expressly authorizes Payment Facilitator to submit Transactions to, and (if applicable) receive settlement from, American Express on behalf of the Sponsored Merchant.
- Sponsored Merchant authorizes American Express to receive information regarding Sponsored Merchant and its Transactions and agrees that American Express shall be entitled to use such information (i) to perform its responsibilities in connection with the program; (ii) to promote the American Express network; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communication purposes and important transactional or relationship communications from American Express. Furthermore, American Express shall be entitled to use information obtained in the Sponsored Merchant’s application to screen, communicate, and/or monitor Sponsored Merchant in connection with marketing and administrative purposes.
- Sponsored Merchant may opt out of receiving future commercial marketing communications from American Express. Sponsored Merchant agrees, however, that such an opt-out will not preclude American Express from sending important transactional or relationship communications. In addition, Sponsored Merchant may opt out of accepting Cards (including Cards issued by American Express) at any time without directly or indirectly affecting its rights to accept other payments products.
- Sponsored Merchant acknowledges that it may be converted to a direct Card acceptance relationship with American Express if and when it becomes “High CV Merchant” in accordance with Operating Rules promulgated by American Express. Upon any such conversion, Sponsored Merchant will be bound by American Express’s then- current card acceptance agreement, and American Express will set pricing and other fees payable by Sponsored Merchant for Card acceptance.
- Sponsored Merchant shall not assign to any third party any payments due to it under this Agreement; provided, however, that Sponsored Merchant may sell and assign future Transaction receivables to Payment Facilitator, its affiliated entities, and/or any other cash advance funding source that partners with Payment Facilitator or its affiliated entities without the consent of American Express.
- Sponsored Merchant will comply with the American Express Technical Specifications as the same may be amended from time to time.
- Sponsored Merchant will comply with applicable privacy and data protection laws and provide specific and adequate disclosures to Cardholders regarding the collection, use, and processing of personal data.
- Sponsored Merchant acknowledges and agrees:
- Term; Termination
- This Agreement shall commence on the date this Agreement is accepted by Acquirer, whether by signature or by the processing of presented Transactions. Unless earlier terminated as provided in this Agreement, or except as may be provided in a contemporaneously submitted order form, the Agreement shall continue until it is terminated by either party on not less than thirty (30) days’ written notice. If Sponsored Merchant presents, and Payment Facilitator elects to process, Transactions beyond the conclusion of the Initial Term or any Renewal Term, then the terms of this Agreement will continue to govern such processing activity.
- Any Payment Network may terminate or limit this Agreement as permitted by the Operating Rules of such Payment Network.
- In addition to any other termination rights, Acquirer may terminate this Agreement (or, pursuant to clause (i) of this Section 5.2, may terminate this Agreement as to any Payment Network) or any Addendum immediately, or may suspend Services or decline to process particular Transactions, with or without notice, if (a) Sponsored Merchant fails to strictly comply with any term of this Agreement; (b) Acquirer, in its sole discretion, determines that Sponsored Merchant or any affiliated entity or individual is violating the Operating Rules or Applicable Law or is engaging in suspicious, wrongful, fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Acquirer or the Payment Networks (and Payment Facilitator may also suspend Services or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (c) Sponsored Merchant, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (d) Acquirer deems Sponsored Merchant to be financially insecure; (e) Sponsored Merchant materially alters its business; (f) there is a material change in Sponsored Merchant’s processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application; (g) Acquirer receives direction from any Payment Network to terminate this Agreement; (h) Acquirer, in its reasonable discretion, determines that circumstances otherwise warrant immediate termination or suspension; (i) any Payment Network takes any of the Adverse Registration Actions or limits this Agreement pursuant to the Operating Rules thereof; (j) any of Processing Agreements are terminated; or (k) Payment Facilitator has determined it is required to terminate this Agreement by any of the Processing Agreements or Operating Rules. Furthermore, Payment Facilitator may terminate this Agreement at any time upon thirty (30) days’ written notice.
- This Agreement shall automatically terminate to the extent required by the Operating Rules.
- In addition to any other termination rights, Sponsored Merchant may terminate this Agreement if we have failed to perform a material obligation in this Agreement and such failure has not been cured for thirty (30) days after Sponsored Merchant notifies Payment Facilitator in writing of such failure.
- All Sponsored Merchant obligations with respect to Transactions processed under this Agreement shall survive any termination, including, without limitation, the obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
- Non-Exclusivity
- This Agreement is non-exclusive. Sponsored Merchant may receive services, or enter into an agreement to receive services, with another merchant acquirer. Likewise, Sponsored Merchant acknowledges and agrees that Payment Facilitator may provide services to other sponsored merchants.
- Procedures for Transactions
- Within forty-eight (48) hours (or any shorter period mandated by the Operating Rules) after the completion of a Transaction Sponsored Merchant believes to be authorized by a Cardholder, Sponsored Merchant shall submit all Transaction Information therefor to Payment Facilitator for processing. Sponsored Merchant shall submit such information to Payment Facilitator, along with any other information that may reasonably be requested in connection with a Transaction, in such form as Payment Facilitator may specify from time to time. Sponsored Merchant understands that failure to submit such Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and Sponsored Merchant agrees to pay any such fees if assessed; and/or (b) compromise Sponsored Merchant’s ability to be paid for the Transaction(s).
- Sponsored Merchant shall not submit for processing: (a) any Transaction that does not involve Sponsored Merchant, or that does not originate from an interaction between Sponsored Merchant and a Cardholder intending to make a purchase from or donation to Sponsored Merchant; (b) any Transaction for which Sponsored Merchant does not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of Sponsored Merchant’s normal course of business as reflected on the Sponsored Merchant Application. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Agreement.
- Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for Sponsored Merchant that aligns with the Sponsored Merchant’s sales volume, as indicated on the Sponsored Merchant Application.
- Settlement
- Except as elsewhere provided herein, after receiving funds for approved Transactions from any Payment Network, Payment Facilitator will direct Processor and/or Bank to provisionally fund Sponsored Merchant’s Settlement Account, minus (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amounts authorized to be retained under Sections 22 or 23 of this Agreement. Failure to subtract such amounts does not relieve Sponsored Merchant of liability or responsibility for the same, and Sponsored Merchant agrees that Payment Facilitator may Sponsored Merchant agrees to pay all such amounts to Acquirer immediately upon receipt of any invoice and without deduction or offset. Prior to such funding, Processor or Bank, as applicable, may maintain funds associated with Sponsored Merchants’ transactions in a commingled account, and Sponsored Merchant shall have no right to such account, the funds therein, or interest, if any, obtained thereon. Sponsored Merchant acknowledges that Payment Facilitator is not a licensed money transmitter and shall not take receipt of any funds for purposes of transmission to Sponsored Merchant.
- For each approved Transaction for which Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, Sponsored Merchant hereby irrevocably authorizes Payment Facilitator to deliver instructions to Bank and/or Processor with regard to the amount and timing of payments to be made to the Settlement Account, including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts in respect of Payment Facilitator’s fees) and (b) pay remaining settlement funds, if any, to the Settlement Account.
- Sponsored Merchant must maintain a Settlement Account at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks. Sponsored Merchant authorizes Acquirer to initiate debit and credit entries to the Settlement Account, including through the ACH settlement process or via wire transfer, and agrees that Acquirer may debit the Settlement Account for any amounts owed hereunder to Acquirer to which Acquirer may otherwise be entitled for any reason. Sponsored Merchant agrees to execute any additional documentation necessary to debit the Settlement Account as described herein. Such authorization shall remain in place until the later of termination of this Agreement or Sponsored Merchant’s satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. Sponsored Merchant may change the Settlement Account only as provided in Section 21 of this Agreement. Sponsored Merchant shall maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds, and shall be solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
- Sponsored Merchant acknowledges and agrees that: (a) Payment Facilitator, Processor, and Bank shall have no liability or responsibility for delays in the transmission or deposit of funds or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Sponsored Merchant or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) time periods set forth in Payment Facilitator’s marketing material, brochures, collateral and/or similar materials are estimates only; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) Payment Facilitator shall not be liable or responsible for any delays in the transmission or deposit of funds due or the failure of Sponsored Merchant to receive funds where that delay or failure is in any way attributable to Processor or Bank.
- Acquirer reserves the right to refuse to process any Transaction if Acquirer, in its sole discretion, believes that the Transaction may be uncollectible from the Cardholder, is likely to result in a Chargeback, and/or was presented in violation of the terms of this Agreement, the Processing Agreements, Applicable Law, and/or the Operating Rules.
- Sponsored Merchant acknowledges that all payments and credits provided to Sponsored Merchant are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Agreement and the Operating Rules.
- Marks and Intellectual Property
- Sponsored Merchant shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Agreement or at the direction of any Payment Network. Sponsored Merchant acknowledges that all such logos, marks, advertising and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network, which ownership Sponsored Merchant agrees not to challenge, and that such Payment Network may prohibit Sponsored Merchant’s use thereof at any time and for any reason, with or without notice. Further, from time to time, Payment Facilitator may provide Sponsored Merchant with materials that include Payment Facilitator’s name, logo, trademarks, and/or service marks. Sponsored Merchant shall only use such materials as expressly permitted by Payment Facilitator, and shall return to Payment Facilitator such materials upon the termination of this Agreement for any reason or upon Payment Facilitator’s earlier request at any time. Sponsored Merchant shall not at any time represent, directly or by implication, that its goods or services are endorsed, sponsored, or guaranteed by Acquirer or any Payment Network. This Agreement shall not confer on Sponsored Merchant any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
- Acquirer may require any changes to Sponsored Merchant’s website or otherwise that Payment Facilitator deems necessary or appropriate to ensure that Sponsored Merchant remains in compliance with the Operating Rules governing the use of the intellectual property described in Section 9.1.
- All of Payment Facilitator’s computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services are and will remain the sole and exclusive property of the Payment Facilitator. Payment Facilitator shall own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from Sponsored Merchant’s request.
- Data Security
- Sponsored Merchant acknowledges that it is its responsibility to abide, and agrees to abide, by all Security Standards, including PCI DSS, and to provide proof of compliance to Acquirer or any Payment Networks as required or upon request, including, without limitation, by attestation or an examination of Sponsored Merchant’s systems to validate such compliance. The costs of any such attestation or examination shall be Sponsored Merchant’s sole responsibility.
- Without in any way limiting the obligations imposed by the preceding paragraph, Sponsored Merchant will (a) secure and keep confidential Cardholder information, Card Information and Transaction Information in strict compliance with the Security Standards and Applicable Law, and will not use, disclose, or distribute any such information except as permitted by the Security Standards or Applicable Law and, further, may not disclose or distribute such information to any third party other than a third-party service provider described in Section 10.3; and (b) maintain systems and media containing any Cardholder information, Card Information or Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information.
- To the extent Sponsored Merchant uses any third party to process, store, receive, transmit, and/or otherwise have access to Cardholder information, Card Information, and/or Transaction Information, Sponsored Merchant assumes full responsibility and liability for such third-party’s compliance with this Agreement, the Security Standards, and Applicable Law. Furthermore, neither Sponsored Merchant nor any such third party shall request Card Verification Value 2 (“CVV2”) for card present transactions. Payment Facilitator, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which shall be the sole responsibility and liability of Sponsored Merchant. Sponsored Merchant further agrees to notify Payment Facilitator of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks and are compliant with all applicable Security Standards. Acquirer further reserves the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and to terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
- If Sponsored Merchant discovers or at any time has reason to suspect that a Data Compromise Event has occurred, Sponsored Merchant must immediately notify Payment Facilitator and fully cooperate, at its expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if Sponsored Merchant is undergoing a forensic investigation at the time it signs the Sponsored Merchant Application, it must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules shall be the exclusive responsibility of Sponsored Merchant.
- Sponsored Merchant acknowledges that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on its systems or those of any third party referenced in Section 10.3 may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Without limiting Sponsored Merchant’s liabilities under any other provision hereof, Sponsored Merchant agrees to fully indemnify Payment Facilitator, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, or any third parties associated with Sponsored Merchant’s actual or alleged failure, or the actual or alleged failure of any third party referenced in Section 10.3, to comply with the Security Standards or the occurrence of any Data Compromise Event.
- In the event Sponsored Merchant operates a website capable of accepting Cards, then, in addition to all other obligations specified herein, Sponsored Merchant agrees to maintain, display, and abide by a Cardholder data privacy policy.
- Sponsored Merchants acknowledge that Payment Facilitator shall have no obligation to migrate or export Cardholder information, Card Information, and/or Transaction Information, including to Sponsored Merchant, at any time, including at the termination of this Agreement.
- Authorized Users
- To the extent Sponsored Merchant is granted electronic access to any of Acquirer’s systems or portals, Sponsored Merchant shall be responsible for (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying Payment Facilitator of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such actions were not authorized by Sponsored Merchant.
- Sponsored Merchant is responsible for the acts and omissions of its owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services. Without limiting the preceding sentence, such acts and omissions will be viewed as acts and omissions of Sponsored Merchant for purposes of determining if there has been a breach of this Agreement by Sponsored Merchant and the availability of any right or remedy related to such breach.
- Pricing and Payment
- Sponsored Merchant agrees to pay Processing Fees in the amounts specified in the fee schedule provided to and/or selected by Sponsored Merchant contemporaneously with Sponsored Merchant’s acceptance of this Agreement, as the same may be amended from time to time pursuant to this Agreement. The Processing Fees are qualified in all respects by the other terms of this Agreement, including the assumptions referenced herein.
- Except as otherwise set forth in a Sponsored Merchant Agreement, if a Transaction is revoked, Sponsored Merchant will incur a $5 ACH return fee. If a Transaction is disputed (e.g., a chargeback is initiated, including an ACH chargeback pursuant to reason code R05, R07, R08, R10, R29, R51, or R52), Sponsored Merchant will incur a $25 dispute fee. Following a revocation or dispute of a Transaction, no subsequent sales Transactions or entries should be initiated by the Sponsored Merchant associated with such Transaction.
- Sponsored Merchant is responsible for payment of refunds, Chargebacks, Processing Fees, indemnified losses, assessments, fees and/or other amounts charged by or payable to Acquirer, the Payment Networks, and/or other parties related to or associated with Sponsored Merchant’s use of the Services, its Transactions, and/or its processing activity (such fees and other amounts charged by or payable to any person other than Payment Facilitator, the “Third-Party Charges”). Acquirer may at any time, with or without notice, collect such amounts (a) pursuant to Section 8 of this Agreement; (b) by demanding immediate payment; (c) by debiting the Settlement Account or any Reserve Funds; or (d) by subtracting such amounts from future settlements.
- Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or parties other than Payment Facilitator.
- In addition, Acquirer may amend, revise, change, or supplement the Processing Fees by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to the Payment Networks or other third parties) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation.
- Sponsored Merchant agrees with, and represents and warrants to, Acquirer that such fee schedule constitutes an adequate Fee Disclosure for purposes of the Operating Rules and Applicable Law.
- Sponsored Merchant acknowledges and agrees that it shall be solely responsible for, and the Processing Fees do not cover or include: (a) fines, loss allocations, liability assessments, penalties, and/or similar charges imposed on or assessed against Sponsored Merchant or Acquirer by third parties (including the Payment Networks) and/or (b) all communication expenses associated with its processing activity.
- If Sponsored Merchant does not pay any refunds, Chargebacks, Processing Fees, indemnified losses, or other amounts payable to Acquirer or the Payment Networks when due, such amounts will accrue interest at the lesser of 1.5% per month or the highest amount permitted by applicable law.
- Taxes
- Sponsored Merchant shall be solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of Sponsored Merchant’s goods or services or receipt of donations. Unless Sponsored Merchant is otherwise exempt (and can prove such exemption to Acquirer’s satisfaction), Sponsored Merchant agrees to pay all taxes imposed on the services, equipment, or other property provided to Sponsored Merchant pursuant to this Agreement.
- Chargebacks
- Sponsored Merchant has full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with its Transactions.
- If Sponsored Merchant has reason to dispute or respond to a Chargeback, then Sponsored Merchant must do so by the date provided on the applicable Chargeback notice. Payment Facilitator, Processor, and Bank shall have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback.
- If Acquirer, in its sole discretion, determines that Sponsored Merchant is experiencing excessive Chargebacks, then it may (i) with notice, increase the Processing Fees; (ii) without notice, establish or increase the Reserve Funds; (iii) without notice, suspend the Services; or (iv) without notice, terminate this Agreement.
- Sponsored Merchant shall not ask or require that a Cardholder waive a right to dispute a transaction.
- Indemnification
- Sponsored Merchant shall indemnify and hold Payment Facilitator, Processor, and Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by any of them arising out of: (i) Sponsored Merchant’s acts or omissions, or those of its owners, employees, consultants, contractors, agents, officers, and directors, whether or not those acts or omissions were authorized by Sponsored Merchant (including, without limitation, any obligation of Payment Facilitator to indemnify Processor or Bank with respect to any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (ii) Sponsored Merchant’s Transactions or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (iii) Sponsored Merchant’s breach of this Agreement or violation of Applicable Law or Operating Rules; (iv) the state or configuration of Sponsored Merchant’s equipment, including, without limitation, Sponsored Merchant’s failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; and/or (v) Sponsored Merchant’s use of third-party services or service providers, including gateways, value added resellers, and independent software vendors.
- Without limiting the preceding subsection, in the event that Payment Facilitator, Processor, or Bank is named as a party to any claims, litigation, proceeding, arbitration, or other legal process commenced by a third party arising out of or relating to any act or omission by Sponsored Merchant, Sponsored Merchant shall indemnify, protect, and hold harmless Payment Facilitator, Processor, and Bank with respect to any and all liability associated with such claims, litigation, proceeding, arbitration, or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
- Obligation to Report Statement Discrepancies
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
Statements provided online shall be deemed received the first day they are available online. - YOU ACKNOWLEDGE AND AGREE THAT NEITHER PAYMENT FACILITATOR, PROCESSOR, NOR BANK SHALL BE LIABLE OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO PAYMENT FACILITATOR IN WRITING WITHIN FORTY FIVE (45) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
- You acknowledge and agree that you shall reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit or other means from your Settlement Account or the Reserve Funds.
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to Payment Facilitator in writing, within thirty (30) days of your receipt of any statement, any problems or irregularities with your statements—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such statements or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of transactions that you actually processed during the period indicated by the statement.
- Limitation of Liability and Disclaimer of Warranties
- UNDER NO CIRCUMSTANCES SHALL ACQUIRER’S AGGREGATE FINANCIAL RESPONSIBILITY FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO PAYMENT FACILITATOR BY SPONSORED MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, AND/OR BANK BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
- FOR PURPOSES OF THIS SECTION 17, FEES OR CHARGES OF THE PAYMENT NETWORKS OR OTHER THIRD PARTIES PASSED THROUGH TO CUSTOMER PURSUANT TO THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO PAYMENT FACILITATOR.
- IN NO EVENT SHALL PAYMENT FACILITATOR, PROCESSOR, OR BANK, OR ANY OF ITS OR THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY SPONSORED MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK SHALL NOT BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
- PAYMENT FACILITATOR, PROCESSOR, AND BANK MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, EQUIPMENT AND/OR SERVICES PROVIDED HEREUNDER AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SPONSORED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, AND/OR TRADE.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAYMENT FACILITATOR, PROCESSOR, AND BANK DO NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES, EQUIPMENT, SOFTWARE, AND/OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; (C) THAT A PRODUCT WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULTS; (D) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS; OR (E) THAT A PRODUCT WILL OPERATE WITHOUT INTERRUPTION.
- Underwriting, Monitoring, and Auditing Rights
- Sponsored Merchant, on behalf of itself and its principals and beneficial owners, acknowledges and agrees that Acquirer may request and obtain external reports, including background checks, credit checks, banking relationship reports, financial history, and credit reports from credit reporting agencies, in connection with the consideration of the Sponsored Merchant Application or at any time thereafter. Sponsored Merchant further acknowledges that its Sponsored Merchant Application may be rejected by Acquirer and that Acquirer shall not have any liability associated with such rejection.
- Sponsored Merchant agrees to promptly furnish Acquirer and any requesting Payment Network with information and documents reasonably necessary to evaluate Sponsored Merchant’s financial condition and business practices upon request. Furthermore, with notice and during Sponsored Merchant’s normal business hours, any of Acquirer’s respective representatives or the representatives of any Payment Network may visit Sponsored Merchant’s business premises to examine Sponsored Merchant’s operations, activities, and/or books and records to the extent necessary to evaluate Sponsored Merchant’s compliance with this Agreement or to the extent necessary for Payment Facilitator to meet its obligations under the Processing Agreements or for the Acquirer to meet its obligations under the Operating Rules.
- Sponsored Merchant agrees to provide Payment Facilitator advance written notice of any actual or anticipated (a) material change in Sponsored Merchant’s products or services, business practices, or the manner in which Sponsored Merchant accepts Cards; (b) change to Sponsored Merchant’s legal form, legal name, trade name, or mailing address; or (c) changes to anticipated Transaction amounts or volume.
- Sponsored Merchant agrees to provide Acquirer with all “know your customer” information that it reasonably requests from time to time, including, without limitation, any information (a) necessary to meet a person’s obligations under, inter alia, United States anti-terrorism or anti- money laundering laws or (b) Payment Facilitator is required to diligence, obtain and/or verify under any of the Processing Agreements or under the Operating Rules (including the names and country of domicile of each of the Sponsored Merchant’s principals and reports of all Transactions).
- Sponsored Merchant shall provide such information within twenty-four (24) hours of a request for the same. Without limiting the foregoing, Sponsored Merchant shall, on an ongoing basis (and at least quarterly), provide Payment Facilitator with each of its office addresses, uniform resource locaters, “doing business as” names, as well as complete descriptions of all goods and services provided by such Sponsored Merchant.
- Reporting
- Sponsored Merchant acknowledges that, under the Operating Rules of the Payment Networks, certain Sponsored Merchant activity and terminations of Sponsored Merchant processing agreements may result in Acquirer’s reporting merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). Sponsored Merchant, on behalf of itself and its principals (and with such principals’ explicit authorization), hereby consents to such reporting and waives any claim related to the same, even in instances where Sponsored Merchant or its principals believe that reporting to have been improper or in error.
- Relationship of the Parties
- Sponsored Merchant designates Acquirer as its agent to receive payments for Transactions processed pursuant to this Agreement. Payment Facilitator, Processor, and/or Bank, however, shall not be considered a partner or fiduciary to Sponsored Merchant, and nothing in this Agreement or the rendition of Services related to this Agreement shall be deemed to create a joint venture, partnership, and/or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm’s length commercial relationship.
- Updates to Settlement Account
- If Sponsored Merchant intends to change its Settlement Account, it must give no fewer than fifteen (15) days’ prior written notice to Payment Facilitator and receive Payment Facilitator written approval of the change. Failure to provide the notice and obtain the approval required in this Section may result in Acquirer’s inability to settle Transaction proceeds to Sponsored Merchant, and may result in the misdirection or loss of the same. Sponsored Merchant shall bear sole responsibility for any such loss and shall have no right of recovery against Payment Facilitator, Processor, and/or Bank associated with such misdirection or loss.
- Reserve Account and Security Interest
- Payment Facilitator, Processor, and/or Bank may at any time, whether at the inception of this Agreement or thereafter (including at the time of termination of this Agreement), require the establishment of Reserve Funds to satisfy Sponsored Merchant’s current or anticipated obligations hereunder, including, without limitation, its obligations with respect to refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Further, at any time during the term of this Agreement or at its termination, Payment Facilitator, Processor, and/or Bank may increase the amount of Reserve Funds established as described herein. All decisions relating to whether to establish one or more Reserve Funds, set the amount of, or increase the Reserve Funds will be in Payment Facilitator, Processor, and/or Bank’s discretion.
- Reserve Funds may be funded by (i) debiting the amount of Transactions that would otherwise be payable to Sponsored Merchant under this Agreement; (ii) demanding funds from Sponsored Merchant; or (iii) debiting the Settlement Account. If Payment Facilitator, Processor, and/or Bank makes a demand for funds pursuant to this Section 22.2, Sponsored Merchant shall promptly transfer the amount of funds demanded.
- Reserve Funds may be used at any time to satisfy Sponsored Merchant’s obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer and/or the Payment Networks.
- Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on Sponsored Merchant’s account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy Sponsored Merchant’s current or anticipated obligations under this Agreement, the Operating Rules, and/or Applicable Law.
- Until the expiration of the period referenced in the preceding subsection, Sponsored Merchant shall have no ownership interest in or right to the Reserve Fund. Rather, the Reserve Funds shall be the exclusive property of Payment Facilitator, Processor, and/or Bank. Furthermore, Sponsored Merchant shall have no right to receive interest on any funds maintained in any of the Reserve Funds, which shall be the exclusive property of Payment Facilitator, Processor, and/or Bank.
- Without in any way limiting the foregoing, and merely as an additional form of security, Sponsored Merchant hereby further grants Payment Facilitator a security interest in (a) the Reserve Funds; and (b) the proceeds associated with any Transaction. Payment Facilitator may enforce its security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until Sponsored Merchant satisfies all its obligations to Acquirer. Sponsored Merchant further agrees to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Agreement.
- Holdback Rights
- In addition to any of the other rights granted to Acquirer hereunder, in the event that Acquirer, at any time during the term of this Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, or excessive Chargebacks) or (b) to enable Payment Facilitator or Processor to exercise its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. To the extent (i) the investigation conducted by Acquirer with respect to the unusual, suspicious, or risk-exposing activity determines that such activity is reasonably likely to result in amounts being due from you to Acquirer, and (ii) Acquirer requires the establishment, replenishment, or increase of one or more Reserve Funds in connection therewith, then the funds held pursuant to this Section 23 may be used to fund such Reserve Funds.
- Equipment
- Payment Facilitator, Processor, and Bank make no representations or warranties regarding the compatibility of third-party products and services with Acquirer’s systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer’s respective systems, you understand that a separate agreement may be required with the third-party provider in order to obtain such software, services, or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
- Sponsored Merchant shall be responsible for any fines, penalties, claims, demands, or new or increased fees (including interchange) that result from Sponsored Merchant’s (a) use of value added reseller, independent software vendor, gateway, point of sale systems, or any other software, hardware, or service not provided by us; (b) failure to maintain the most current version of software that has been certified by Payment Facilitator, Processor, and Bank as being compatible with the their respective systems; or (c) misuse of software that has been certified as compatible with Acquirer’s respective systems. Notwithstanding anything in this Section 24.2, Sponsored Merchant shall not use any third-party point of sale systems, or any other device or method used for the purpose of obtaining credit or debiting a designated account (including any Card), without the prior written consent of Payment Facilitator.
- To the extent that Sponsored Merchant elects to purchase, lease, or use processing equipment from Acquirer, Sponsored Merchant agrees to pay the stated purchase price or lease amounts, along with all applicable taxes and shipping costs, and agrees that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to Sponsored Merchant’s Settlement Account.
- Equipment provided by Acquirer may only be used for purposes of this Agreement and the receipt of Services pursuant to this Agreement. Sponsored Merchant shall keep any such equipment in a good state of repair, normal wear and tear excepted, and shall follow all instructions regarding the use and maintenance thereof. Sponsored Merchant shall not, and shall not permit others to, alter, modify, and/or deface any such equipment or inscribe or etch anything thereon or attach or affix anything thereto. With respect to leased equipment, title to such equipment remains with the provider at all times, and Sponsored Merchant acquires no right, title, or interest in any such other than the right to use equipment to receive the Services for the period during which the provided thereof permits Sponsored Merchant to use the same. Sponsored Merchant must give Acquirer access to any such equipment at all times, and Acquirer may repair or replace any such equipment at any time. With regard to any equipment provided to Sponsored Merchant, Sponsored Merchant shall bear all risk of loss, damage, destruction, theft, and/or similar to such equipment from any cause whatsoever (each a “Loss Event”) during the term hereof and until such equipment has been returned to the provider thereof. Sponsored Merchant shall return such equipment, at its risk and expense, upon the earlier of the expiration or termination hereof. Sponsored Merchant shall immediately notify Payment Facilitator upon the occurrence of any Loss Event. Sponsored Merchant shall not distribute, sell, transfer, share, sublease, rent and/or give away any such equipment or any interest therein or use, or permit the use of, such equipment by or on any third party’s behalf, except that Sponsored Merchant may allow its customers to use equipment in the course of completing a Transaction.
- Confidentiality and Use of Data
- Sponsored Merchant shall use Card Information solely to receive Services under this Agreement. Under no circumstances shall Sponsored Merchant sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
- Except in response to a validly served subpoena, Sponsored Merchant will not provide Card Information to anyone except to Acquirer, the Payment Networks, or Sponsored Merchant’s agents that have been approved by Processor and are properly registered with Payment Networks for purposes of assisting Sponsored Merchant in completing Transactions. Should Sponsored Merchant receive a subpoena that encompasses Card Information, Sponsored Merchant will notify Payment Facilitator in writing of its receipt of such a subpoena as soon as practicable.
- Sponsored Merchant agrees to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information, Transaction Information, and Cardholder information; (d) any other non-public information regarding any aspect of Acquirer’s respective businesses made available to, or encountered by, Sponsored Merchant under the auspices of this Agreement (“Acquirer Confidential Information”); or (e) other information Payment Facilitator is required to keep confidential. Acquirer Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing or business development plans, technical information, personnel information, and trade secrets.
- Should Sponsored Merchant receive any Acquirer Confidential Information belonging to Acquirer, Sponsored Merchant agrees to protect such confidential information equally to its own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. Sponsored Merchant agrees to return Acquirer’s respective confidential information either upon the termination of this Agreement for any reason, or upon earlier request from Acquirer.
- To the extent permitted by Applicable Law and the Operating Rules, Sponsored Merchant authorizes Acquirer to disclose information regarding Sponsored Merchant to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. Sponsored Merchant authorizes Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of Services under this Agreement. Sponsored Merchant further authorizes Acquirer to provide information about Sponsored Merchant in response to requests for such information from any government body or regulatory authority.
- Notwithstanding anything else in this Agreement, and without otherwise limiting Acquirer’s use of such information, all Card Information, information related to Transactions or Cardholders, and information related to Sponsored Merchant, may be used by Payment Facilitator, Processor, and/or Bank and its or their respective affiliates and designees: (a) to provide Services; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or services; (d) in the course of any sale or reorganization of any of Acquirer’s respective business; (e) to comply with Applicable Laws; (f) for disclosure to credit reporting agencies and other financial institutions; and (g) as otherwise permitted by Applicable Laws.
- Amendments and Waiver
- Payment Facilitator may amend, revise, change, or supplement this Agreement by giving Sponsored Merchant thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that Sponsored Merchant may terminate this Agreement, without penalty, in response to such amendment, revision, change, or supplementation (not attributable to changes to the Operating Rules or Applicable Law) by providing Payment Facilitator with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Rules or Applicable Law may be made on less than thirty (30) days’ notice and shall not be grounds for termination of this Agreement.
- Payment Facilitator will not be deemed to have waived any provision of this Agreement by failing to promptly enforce the same, and no waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision of this Agreement or the same provision on any other occasion.
- Notices; Electronic Notice
- All notices under this Agreement to Payment Facilitator, Processor, and/or Bank must be in writing and delivered via hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices to Payment Facilitator, Processor, and/or Bank must be sent to the addresses respectively designated on the Sponsored Merchant Application for those entities, and will be deemed effective upon receipt. Acquirer may provide Sponsored Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Sponsored Merchant Application (or such other address as Sponsored Merchant may provide); (b) electronically, through the Sponsored Merchant portal or through any other means of electronic communication maintained by Acquirer which Sponsored Merchant may access; or (c) electronically, via any email address designated by Sponsored Merchant. Sponsored Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the Internet for so long as this Agreement is in effect and until all of its obligations hereunder have been satisfied in full. Notices delivered through any of the foregoing means shall include notice provided on statement messages appearing on periodic processing statements.
- Choice of Law and Venue; Time and Procedure for Assertion of Claims
- All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation, or enforceability of the choice of law and venue provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
- Without in any way limiting Section 30 (Arbitration), with respect to any action arising out of, relating to, or in connection with this Agreement, Sponsored Merchant and all individuals executing this Agreement in any capacity hereby consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in the State of New York.
- Each party agrees to provide the other prompt notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon either party’s election, the parties will participate in non-binding mediation before a mutually agreed mediator. Any controversy, claim, or dispute that is not resolved through the procedures set forth above within sixty (60) days following the initial notice (or such longer period as the parties may agree) will be resolved pursuant to arbitration pursuant to Section 30 of this Agreement.
- Neither party may bring a claim more than two (2) years after the underlying cause of action first accrues.
- Attorneys’ Fees
- Sponsored Merchant agrees to reimburse Payment Facilitator for all attorneys’ fees or other costs incurred by it in enforcing any provision of this Agreement against Sponsored Merchant, or in obtaining any sums due under this Agreement from Sponsored Merchant, regardless of whether those fees are incurred in connection with a court proceeding, private dispute resolution, or outside a formal dispute resolution proceeding.
- Arbitration
- ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief.
- The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in State of New York (although, for the convenience of the Sponsored Merchant or guarantor (as applicable), any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Sponsored Merchant and guarantor (if applicable) shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the New York Supreme Court at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 30 is found invalid or unenforceable, the other parts of this Section 30 shall still apply.
- SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. SPONSORED MERCHANT AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
- Remedies Cumulative
- The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative.
- Assignment; Successor Responsibility
- The Bank may assign this Agreement without Sponsored Merchant’s consent. Processor may assign this Agreement to another transaction processor approved by Bank. Payment Facilitator may assign this Agreement to another payment facilitator, to Processor, to one of its affiliates, by operation of law, or in connection with the sale of all or substantially all of its assets. Sponsored Merchant may not assign this Agreement without the express written consent of Payment Facilitator, except as otherwise provided in the Processing Agreements. For purposes of this Agreement, it shall be deemed an assignment by Sponsored Merchant of this Agreement to effectuate any sale or transfer of the equity interests of Sponsored Merchant’s business such that the equity holders listed in the Sponsored Merchant Application collectively hold less than 50% of the equity interests after such sale or transfer. This Agreement will be binding on each party’s successor(s) and/or permitted assigns.
- Third Party Beneficiaries
- Processor and Bank are third-party beneficiaries to this Agreement and may enforce the terms hereof, including those rights and privileges belonging to “Acquirer.” In addition, the Payment Networks are third-party beneficiaries of this Agreement with respect to those provisions giving Payment Networks (including American Express) specific rights. There are no other third party beneficiaries to this Agreement.
- Force Majeure
- Payment Facilitator, Processor, and/or Bank shall not be liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, governmental actions, strikes, telecommunications failures, equipment failures, network failures, or other causes beyond such person’s reasonable control.
- Entire Agreement; Severability
- This Agreement constitutes the complete and final agreement between the parties and supersedes all prior oral or written agreements related to its subject matter. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by all parties hereto. If any provision of this Agreement is deemed unlawful or unenforceable, then it shall be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of the Agreement, which shall continue in full force and effect.
- Survival
- Termination of this Agreement shall not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive or be perpetual of irrevocable. Such provisions, including, without limitation, Sections 1, 3.6, 5.6, 8.3, 8.6, 9 through 17, 19 through 25, 26.2, and 27 through 35 shall survive the expiration or termination of this Agreement.
- Press Release
- Payment Facilitator may issue press releases regarding the parties’ relationship hereunder, after this Agreement becomes effective. Sponsored Merchant shall not make any such public disclosure without Payment Facilitator’s prior written consent.
- Electronic Signature
- This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. A signature or other indication of acceptance received electronically or via facsimile (including by checking a box or clicking a link stating, “I Agree,” or words to similar effect) shall be legally binding for all purposes and equally effective as a wet ink signature.
- Consent to Receipt of Electronic Communications
- From time to time we may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this Agreement confirms your ability and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
- Under this Consent, we may provide all Communications electronically by email or by making them accessible via our websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Agreement, our Privacy Policy, and our Software as a Service Agreement) (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, and (4) all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
- To access and retain the electronic Communications, you will need the following:
- A computer or mobile device with Internet or mobile connectivity.
- For desktop website-based Communications:
- Recent web browser that includes 256-bit encryption;
- The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and
- Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
- For application-based Communications:
- A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
- The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
- Access to the email address used to create an account for the Services.
- Sufficient storage space to save Communications and/or a printer to print them.
- If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add [support@paymentbrands.com] to your email address book.
- You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to 14488 Old Stage Road, Lenoir City, Tennessee 37772 (“Company Address”) within 180 days of the date of the original Communication, specifying in detail the Communication you would like to receive in paper form. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
- You may withdraw your consent to receive electronic Communications at any time, by writing to the Company Address. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Company will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
- You can change your email address by writing to the COMPANY Address. You may also be able to change your email address yourself through the Services.
Addendum 1: MERCHANT SERVICES AGREEMENT FOR SUB- MERCHANTS
- Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with each Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Sub-merchant hereby authorizes Acquirer to conduct background checks on Sub-merchant, including but not limited to credit checks and banking and financial history investigations. Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade Commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC), and provide all necessary documentation to Acquirer promptly upon request. For purposes of this section, Agents include, but are not limited to, Sub- merchant’s software providers and/or equipment providers.
If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub- merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand. - Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed; ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (Any tax amount, if allowed, must be included in the transaction amount and not collected separately); iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant; v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
- Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub- merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
- Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations. - Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub- merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then- current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to
Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub- merchant. - Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.
Professional Services Addendum
Effective May 11th 2023
DownloadTable of Contents
- Scope of Services. Subject to the terms and conditions of the Agreement and this Addendum, Ministry Brands will provide you with the services (the “Professional Services”) set forth in statements of work or an Order Form executed by you and Ministry Brands (each, a “Statement of Work” or “SOW”). All Statements of Work shall be deemed part of and subject to this Addendum. If a change in project scope is required, such change(s) and associated fees for additional Professional Services to be provided will be described in a document signed by the parties (a “Change Order”). Subject to the terms and conditions of the Agreement, and while this Agreement is in effect, Customer shall have the non-exclusive, non-transferable, worldwide, limited right to use any deliverables and/or training materials delivered by Ministry Brands to you as part of the Professional Services (“Deliverables”) solely for your internal business operations in connection with its authorized use of the Services as described in the Agreement.
Unless otherwise authorized in writing by Ministry Brands, you are prohibited from: (i) modifying the Deliverables; (ii) reselling or sublicensing any Deliverables; (iii) using the Deliverables to replicate or attempt to perform the Professional Services, including without limitation any portion of the Professional Services that involves training unless Ministry Brands has authorized you to do so; and (iv) developing or attempting to develop any of the products or services described in any training Deliverables. - Intellectual Property Rights. All right, title and interest in and to all recommendations, ideas, techniques, know-how, designs, programs, training manuals, development tools, processes, integrations enhancements in the course of providing Professional Services, including all Intellectual Property Rights pertaining thereto shall vest in Ministry Brands (the “Ministry Brands Intellectual Property”). Nothing contained in this Addendum shall be construed as transferring any such rights to Customer or any third party except as expressly set forth herein. Subject to the foregoing, Ministry Brands grants Customer a royalty-free, non-exclusive, non-transferable license to use the Ministry Brands Intellectual Property incorporated into the Deliverables solely for its internal purposes in connection with its authorized use of the Platform as set forth in the Agreement.
- Fees and Expenses. We may offer Professional Services for prepaid fees based on hours purchased. If you have purchased Professional Services on such basis, you must use all Professional Services hours that you purchase within two (2) years of the Effective Date or the date of any SOW or you will forfeit any unused hours. Ministry Brands will update you periodically regarding the number of Professional Service hours you have remaining. You agree to reimburse Ministry Brands for any out-of-pocket expenses that it incurs in connection with delivering the Professional services, including without limitation, all reasonable travel costs and expenses. Such travel expenses may be invoiced separately from the Professional Services.
- Term. This Addendum shall be effective as of the Effective Date of the Agreement and shall continue in effect until this Agreement expires or is terminated. Each SOW shall commence on the effective date of the SOW as set forth therein and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW or Order Form. Once signed by both parties, and SOW shall be non-cancellable, except as otherwise expressly provided in such SOW or Order Form.
- Independent Contractors. The relationship between you and Ministry Brands pursuant to this Addendum will be that of independent contractors. Neither party shall have the authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any representations and warranties on behalf of the other.
Effective February 28th 2023 to May 11th 2023
DownloadTable of Contents
- Scope of Services. Subject to the terms and conditions of the Agreement and this Addendum, Ministry Brands will provide you with the services (the “Professional Services”) set forth in statements of work or an Order Form executed by you and Ministry Brands (each, a “Statement of Work” or “SOW”). All Statements of Work shall be deemed part of and subject to this Addendum. If a change in project scope is required, such change(s) and associated fees for additional Professional Services to be provided will be described in a document signed by the parties (a “Change Order”). Subject to the terms and conditions of the Agreement, and while this Agreement is in effect, Customer shall have the non-exclusive, non-transferable, worldwide, limited right to use any deliverables and/or training materials delivered by Ministry Brands to you as part of the Professional Services (“Deliverables”) solely for your internal business operations in connection with its authorized use of the Services as described in the Agreement.
Unless otherwise authorized in writing by Ministry Brands, you are prohibited from: (i) modifying the Deliverables; (ii) reselling or sublicensing any Deliverables; (iii) using the Deliverables to replicate or attempt to perform the Professional Services, including without limitation any portion of the Professional Services that involves training unless Ministry Brands has authorized you to do so; and (iv) developing or attempting to develop any of the products or services described in any training Deliverables. - Intellectual Property Rights. All right, title and interest in and to all recommendations, ideas, techniques, know-how, designs, programs, training manuals, development tools, processes, integrations enhancements in the course of providing Professional Services, including all Intellectual Property Rights pertaining thereto shall vest in Ministry Brands (the “Ministry Brands Intellectual Property”). Nothing contained in this Addendum shall be construed as transferring any such rights to Customer or any third party except as expressly set forth herein. Subject to the foregoing, Ministry Brands grants Customer a royalty-free, non-exclusive, non-transferable license to use the Ministry Brands Intellectual Property incorporated into the Deliverables solely for its internal purposes in connection with its authorized use of the Platform as set forth in the Agreement.
- Fees and Expenses. We may offer Professional Services for prepaid fees based on hours purchased. If you have purchased Professional Services on such basis, you must use all Professional Services hours that you purchase within two (2) years of the Effective Date or the date of any SOW or you will forfeit any unused hours. Ministry Brands will update you periodically regarding the number of Professional Service hours you have remaining. You agree to reimburse Ministry Brands for any out-of-pocket expenses that it incurs in connection with delivering the Professional services, including without limitation, all reasonable travel costs and expenses. Such travel expenses may be invoiced separately from the Professional Services.
- Term. This Addendum shall be effective as of the Effective Date of the Agreement and shall continue in effect until this Agreement expires or is terminated. Each SOW shall commence on the effective date of the SOW as set forth therein and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW or Order Form. Once signed by both parties, and SOW shall be non-cancellable, except as otherwise expressly provided in such SOW or Order Form.
- Independent Contractors. The relationship between you and Ministry Brands pursuant to this Addendum will be that of independent contractors. Neither party shall have the authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any representations and warranties on behalf of the other.
Effective January 30th 2023 to February 28th 2023
DownloadTable of Contents
- Scope of Services. Subject to the terms and conditions of the Agreement and this Addendum, Ministry Brands will provide you with the services (the “Professional Services”) set forth in statements of work or an Order Form executed by you and Ministry Brands (each, a “Statement of Work” or “SOW”). All Statements of Work shall be deemed part of and subject to this Addendum. If a change in project scope is required, such change(s) and associated fees for additional Professional Services to be provided will be described in a document signed by the parties (a “Change Order”). Subject to the terms and conditions of the Agreement, and while this Agreement is in effect, Customer shall have the non-exclusive, non-transferable, worldwide, limited right to use any deliverables and/or training materials delivered by Ministry Brands to you as part of the Professional Services (“Deliverables”) solely for your internal business operations in connection with its authorized use of the Services as described in the Agreement.
Unless otherwise authorized in writing by Ministry Brands, you are prohibited from: (i) modifying the Deliverables; (ii) reselling or sublicensing any Deliverables; (iii) using the Deliverables to replicate or attempt to perform the Professional Services, including without limitation any portion of the Professional Services that involves training unless Ministry Brands has authorized you to do so; and (iv) developing or attempting to develop any of the products or services described in any training Deliverables. - Intellectual Property Rights. All right, title and interest in and to all recommendations, ideas, techniques, know-how, designs, programs, training manuals, development tools, processes, integrations enhancements in the course of providing Professional Services, including all Intellectual Property Rights pertaining thereto shall vest in Ministry Brands (the “Ministry Brands Intellectual Property”). Nothing contained in this Addendum shall be construed as transferring any such rights to Customer or any third party except as expressly set forth herein. Subject to the foregoing, Ministry Brands grants Customer a royalty-free, non-exclusive, non-transferable license to use the Ministry Brands Intellectual Property incorporated into the Deliverables solely for its internal purposes in connection with its authorized use of the Platform as set forth in the Agreement.
- Fees. We may offer Professional Services for prepaid fees based on hours purchased. If you have purchased Professional Services on such basis, you must use all Professional Services hours that you purchase within two (2) years of the Effective Date or the date of any SOW or you will forfeit any unused hours. Ministry Brands will update you periodically regarding the number of Professional Service hours you have remaining.
- Term. This Addendum shall be effective as of the Effective Date of the Agreement and shall continue in effect until this Agreement expires or is terminated. Each SOW shall commence on the effective date of the SOW as set forth therein and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW or Order Form. Once signed by both parties, and SOW shall be non-cancellable, except as otherwise expressly provided in such SOW or Order Form.
- Independent Contractors. The relationship between you and Ministry Brands pursuant to this Addendum will be that of independent contractors. Neither party shall have the authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any representations and warranties on behalf of the other.
Privacy Policy
Effective May 22nd 2023
DownloadTable of Contents
Information Collected From You
- Communications, which may include information you provide to us in email, chat services, or through online forms, as well as information you provide when you use our messaging services.
- Payment information, such as details about the payment method (e.g., credit or debit card number), date and amount of transaction, and recipient. Our payment processors collect your payment card information and other information necessary to process the donation.
- Affiliations, such as information about the organizations you represent, donate to, or interact with, as well as how you interact with those organizations. This information may be combined with information we collect from our Clients.
- Generated content and interactions, which may include profiles, posts and comments, liking or viewing other users’ content, and direct messages to other users.
- Photographs, videos, and audio recordings, such as audio or video recordings tied to certain content that you may upload, as well as information supporting the functionality of video and audio features such as video effects that allow you to overlay effects over objects or people displayed within the camera frame.
- Location data. You may tag your location in connection with certain content that you create via the Sites.
Information Collected Automatically
Information Obtained Through Our Clients Use of Our Services
Information Obtained Through Interactive Features and Third Party Integrations
How We Use Personal Information
- Provide access to, secure, and improve the Sites, which may include facilitating and personalizing your user experience; monitoring and analyzing trends, usage, and activities of Site visitors and users; delivering promotional content; improving the Sites; providing technical support; and preventing, identifying, and stopping suspected or actual fraudulent or illegal activity, or any activity that violates our policies.
- Provide services to our Clients, such as managing Client access to our Sites, fulfilling requests related to Client-held information, and otherwise providing requested services or products.
- Payment services, which may include processing online payment transactions, providing information about past payments, and generating receipts.
- Communications, such as using contact details to provide information about our products and services and our Clients, business partners, and affiliates’ services, inviting you to participate in our events or surveys, or otherwise communicating with you. As permitted by applicable law, we may use your Personal Information to advertise and market our products and services to you.
- Fraud detection services, which may include using your Personal Information to detect and prevent fraud against us and our Clients, including to detect unauthorized log-ins.
- Compliance. We may use Personal Information to comply with applicable laws, regulations, or legal processes, industry standards, and Ministry Brands policies.
How We Disclose Personal Information
- Affiliates, such as disclosing information to third parties to inform you of special discounts or offers, provide products and services to you, or notify you about updates to products or services you have purchased or participated in.
- Clients, which may include Client representatives, and third parties authorized by our Clients, in accordance with the Client’s privacy policies and practices.
- Service providers or contractors, such as service providers to help us provide, analyze, and improve the Sites and to communicate, market, and advertise regarding the Sites. We authorize such service providers to use or disclose the Personal Information that we make available to them to perform services on our behalf and to comply with applicable legal requirements.
- Compliance with law, which may include disclosing your information to a third party if we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request (including to meet national security or law enforcement requirements) or to enforce our agreements and policies.
- Safety and security, such as disclosing your information to a third party to protect the security or integrity of the Sites or our services and products; to protect ourselves, our Clients, or the public from harm or illegal activities; or to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
- Corporate transactions, we may share Personal Information with third parties in connection with a business transaction, such as a reorganization, merger, sale, joint venture, assignment, transfer, change of control, or other disposition of all or any portion of our business assets, including negotiations of the transaction.
Your Choices
Security and Retention
Children’s Privacy
California Residents
Information for Users Outside the United States
Changes to This Policy
Contact Us
Effective February 28th 2023 to May 22nd 2023
DownloadTable of Contents
Information Collected From You
- Communications, which may include information you provide to us in email, chat services, or through online forms, as well as information you provide when you use our messaging services.
- Payment information, such as details about the payment method (e.g., credit or debit card number), date and amount of transaction, and recipient. Our payment processors collect your payment card information and other information necessary to process the donation.
- Affiliations, such as information about the organizations you represent, donate to, or interact with, as well as how you interact with those organizations. This information may be combined with information we collect from our Clients.
- Generated content and interactions, which may include profiles, posts and comments, liking or viewing other users’ content, and direct messages to other users.
- Photographs, videos, and audio recordings, such as audio or video recordings tied to certain content that you may upload, as well as information supporting the functionality of video and audio features such as video effects that allow you to overlay effects over objects or people displayed within the camera frame.
- Location data. You may tag your location in connection with certain content that you create via the Sites.
Information Collected Automatically
Information Obtained Through Our Clients Use of Our Services
Information Obtained Through Interactive Features and Third Party Integrations
How We Use Personal Information
- Provide access to, secure, and improve the Sites, which may include facilitating and personalizing your user experience; monitoring and analyzing trends, usage, and activities of Site visitors and users; delivering promotional content; improving the Sites; providing technical support; and preventing, identifying, and stopping suspected or actual fraudulent or illegal activity, or any activity that violates our policies.
- Provide services to our Clients, such as managing Client access to our Sites, fulfilling requests related to Client-held information, and otherwise providing requested services or products.
- Payment services, which may include processing online payment transactions, providing information about past payments, and generating receipts.
- Communications, such as using contact details to provide information about our products and services and our Clients, business partners, and affiliates’ services, inviting you to participate in our events or surveys, or otherwise communicating with you. As permitted by applicable law, we may use your Personal Information to advertise and market our products and services to you.
- Fraud detection services, which may include using your Personal Information to detect and prevent fraud against us and our Clients, including to detect unauthorized log-ins.
- Compliance. We may use Personal Information to comply with applicable laws, regulations, or legal processes, industry standards, and Ministry Brands policies.
How We Disclose Personal Information
- Affiliates, such as disclosing information to third parties to inform you of special discounts or offers, provide products and services to you, or notify you about updates to products or services you have purchased or participated in.
- Clients, which may include Client representatives, and third parties authorized by our Clients, in accordance with the Client’s privacy policies and practices.
- Service providers or contractors, such as service providers to help us provide, analyze, and improve the Sites and to communicate, market, and advertise regarding the Sites. We authorize such service providers to use or disclose the Personal Information that we make available to them to perform services on our behalf and to comply with applicable legal requirements.
- Compliance with law, which may include disclosing your information to a third party if we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request (including to meet national security or law enforcement requirements) or to enforce our agreements and policies.
- Safety and security, such as disclosing your information to a third party to protect the security or integrity of the Sites or our services and products; to protect ourselves, our Clients, or the public from harm or illegal activities; or to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
- Corporate transactions, we may share Personal Information with third parties in connection with a business transaction, such as a reorganization, merger, sale, joint venture, assignment, transfer, change of control, or other disposition of all or any portion of our business assets, including negotiations of the transaction.
Your Choices
Security and Retention
Children’s Privacy
California Residents
Information for Users Outside the United States
Changes to This Policy
Contact Us
Effective February 13th 2023 to February 28th 2023
DownloadTable of Contents
Information Collected From You
- Communications, which may include information you provide to us in email, chat services, or through online forms, as well as information you provide when you use our messaging services.
- Payment information, such as details about the payment method (e.g., credit or debit card number), date and amount of transaction, and recipient. Our payment processors collect your payment card information and other information necessary to process the donation.
- Affiliations, such as information about the organizations you represent, donate to, or interact with, as well as how you interact with those organizations. This information may be combined with information we collect from our Clients.
- Generated content and interactions, which may include profiles, posts and comments, liking or viewing other users’ content, and direct messages to other users.
- Photographs, videos, and audio recordings, such as audio or video recordings tied to certain content that you may upload, as well as information supporting the functionality of video and audio features such as video effects that allow you to overlay effects over objects or people displayed within the camera frame.
- Location data. You may tag your location in connection with certain content that you create via the Sites.
Information Collected Automatically
Information Obtained Through Our Clients Use of Our Services
Information Obtained Through Interactive Features and Third Party Integrations
How We Use Personal Information
- Provide access to, secure, and improve the Sites, which may include facilitating and personalizing your user experience; monitoring and analyzing trends, usage, and activities of Site visitors and users; delivering promotional content; improving the Sites; providing technical support; and preventing, identifying, and stopping suspected or actual fraudulent or illegal activity, or any activity that violates our policies.
- Provide services to our Clients, such as managing Client access to our Sites, fulfilling requests related to Client-held information, and otherwise providing requested services or products.
- Payment services, which may include processing online payment transactions, providing information about past payments, and generating receipts.
- Communications, such as using contact details to provide information about our products and services and our Clients, business partners, and affiliates’ services, inviting you to participate in our events or surveys, or otherwise communicating with you. As permitted by applicable law, we may use your Personal Information to advertise and market our products and services to you.
- Fraud detection services, which may include using your Personal Information to detect and prevent fraud against us and our Clients, including to detect unauthorized log-ins.
- Compliance. We may use Personal Information to comply with applicable laws, regulations, or legal processes, industry standards, and Ministry Brands policies.
How We Disclose Personal Information
- Affiliates, such as disclosing information to third parties to inform you of special discounts or offers, provide products and services to you, or notify you about updates to products or services you have purchased or participated in.
- Clients, which may include Client representatives, and third parties authorized by our Clients, in accordance with the Client’s privacy policies and practices.
- Service providers or contractors, such as service providers to help us provide, analyze, and improve the Sites and to communicate, market, and advertise regarding the Sites. We authorize such service providers to use or disclose the Personal Information that we make available to them to perform services on our behalf and to comply with applicable legal requirements.
- Compliance with law, which may include disclosing your information to a third party if we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request (including to meet national security or law enforcement requirements) or to enforce our agreements and policies.
- Safety and security, such as disclosing your information to a third party to protect the security or integrity of the Sites or our services and products; to protect ourselves, our Clients, or the public from harm or illegal activities; or to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
- Corporate transactions, we may share Personal Information with third parties in connection with a business transaction, such as a reorganization, merger, sale, joint venture, assignment, transfer, change of control, or other disposition of all or any portion of our business assets, including negotiations of the transaction.
Your Choices
Security and Retention
Children’s Privacy
California Residents
Information for Users Outside the United States
Changes to This Policy
Contact Us
Effective January 30th 2023 to February 13th 2023
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Quick Links
Information Collected From You
- Communications, which may include information you provide to us in email, chat services, or through online forms, as well as information you provide when you use our messaging services.
- Payment information, such as details about the payment method (e.g., credit or debit card number), date and amount of transaction, and recipient. Our payment processors collect your payment card information and other information necessary to process the donation.
- Affiliations, such as information about the organizations you represent, donate to, or interact with, as well as how you interact with those organizations. This information may be combined with information we collect from our Clients.
- Generated content and interactions, which may include profiles, posts and comments, liking or viewing other users’ content, and direct messages to other users.
- Photographs, videos, and audio recordings, such as audio or video recordings tied to certain content that you may upload, as well as information supporting the functionality of video and audio features such as video effects that allow you to overlay effects over objects or people displayed within the camera frame.
- Location data. You may tag your location in connection with certain content that you create via the Sites.
Information Collected Automatically
Information Obtained Through Our Clients Use of Our Services
Information Obtained Through Interactive Features and Third Party Integrations
How We Use Personal Information
- Provide access to, secure, and improve the Sites, which may include facilitating and personalizing your user experience; monitoring and analyzing trends, usage, and activities of Site visitors and users; delivering promotional content; improving the Sites; providing technical support; and preventing, identifying, and stopping suspected or actual fraudulent or illegal activity, or any activity that violates our policies.
- Provide services to our Clients, such as managing Client access to our Sites, fulfilling requests related to Client-held information, and otherwise providing requested services or products.
- Payment services, which may include processing online payment transactions, providing information about past payments, and generating receipts.
- Communications, such as using contact details to provide information about our products and services and our Clients, business partners, and affiliates’ services, inviting you to participate in our events or surveys, or otherwise communicating with you. As permitted by applicable law, we may use your Personal Information to advertise and market our products and services to you.
- Fraud detection services, which may include using your Personal Information to detect and prevent fraud against us and our Clients, including to detect unauthorized log-ins.
- Compliance. We may use Personal Information to comply with applicable laws, regulations, or legal processes, industry standards, and Ministry Brands policies.
How We Disclose Personal Information
- Affiliates, such as disclosing information to third parties to inform you of special discounts or offers, provide products and services to you, or notify you about updates to products or services you have purchased or participated in.
- Clients, which may include Client representatives, and third parties authorized by our Clients, in accordance with the Client’s privacy policies and practices.
- Service providers or contractors, such as service providers to help us provide, analyze, and improve the Sites and to communicate, market, and advertise regarding the Sites. We authorize such service providers to use or disclose the Personal Information that we make available to them to perform services on our behalf and to comply with applicable legal requirements.
- Compliance with law, which may include disclosing your information to a third party if we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request (including to meet national security or law enforcement requirements) or to enforce our agreements and policies.
- Safety and security, such as disclosing your information to a third party to protect the security or integrity of the Sites or our services and products; to protect ourselves, our Clients, or the public from harm or illegal activities; or to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
- Corporate transactions, we may share Personal Information with third parties in connection with a business transaction, such as a reorganization, merger, sale, joint venture, assignment, transfer, change of control, or other disposition of all or any portion of our business assets, including negotiations of the transaction.
Your Choices
Security and Retention
Children’s Privacy
California Residents
Information for Users Outside the United States
Changes to This Policy
Contact Us
California Privacy Notice
Effective January 30th 2023
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Personal Information We Collect and How We Collect It
- Identifiers, including real name, alias, postal address, unique personal identifier, online identifier, IP address, email address, account name, social security number, or other similar identifiers.
- Personal Information described in Cal. Civ. Code § 1798.80(e), including name, signature, social security number, physical characteristics or description, address, telephone number, passport number, driver’s license or state identification card number, education, employment, employment history, bank account number, credit card number, debit card number, or other financial information.
- Characteristics of protected classifications under California or federal law, including age and date of birth, marital status, race, ancestry, ethnic origin, sex, gender, sexual orientation, gender identity, religion or creed, military or veteran status, medical condition, or disability.
- Commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies
- Internet or other electronic network activity information, including Internet or other similar activity, browsing history, search history, information on a consumer’s interaction with our Sites, application logs, device data and registration, social media account information, or advertisement.
- Geolocation data, including location data inferred from your device IP address.
- Audio, electronic, visual, thermal, olfactory, or similar information, including photographs and video of you, and audio recordings as may relate to your application.
- Professional or employment-related information, including employer; skills, qualifications, work experience, references, recommendations, and other information included in a resume, CV, application form, or cover letter; answers to behavioral or other screening questions in an application or interview; information contained in any personal webpages or documents you choose to share with us; information relating to professional licenses, training, disciplinary actions, and membership in professional organizations; and information relating to membership in civic organizations.
- Non-public education information, including school(s) attended, grades, transcripts, record of attendance, disciplinary records, or other information relating to your secondary and post-secondary education.
- Inferences used to create a profile reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.
- Sensitive Personal Information, including Personal Information that reveals a consumer’s religious or philosophical beliefs.
- Additional categories. We also collect some Personal Information that does not directly fit within one of the categories defined by the CCPA. For example, we collect the contents of communications you send to us; citizenship; immigration, visa status, and work authorization information; and languages spoken.
Purposes for Which We Collect Your Personal Information
- Provide access to, secure, and improve the Sites, which may include facilitating and personalizing your user experience; monitoring and analyzing trends, usage, and activities of Site visitors and users; delivering promotional content; improving the Sites; providing technical support; and preventing, identifying, and stopping suspected or actual fraudulent or illegal activity, or any activity that violates our policies.
- Provide services to our Clients, such as managing Client access to our Sites, fulfilling requests related to Client-held information, and otherwise providing requested services or products.
- Payment services, which may include facilitating online payment transactions, providing information about past payments, and generating receipts.
- Communications, such as using contact details to provide information about our products and services and our Clients, business partners, and affiliates’ services, inviting you to participate in our events or surveys, or otherwise communicating with you. As permitted by applicable law, we may use your Personal Information to advertise and market our products and services to you.
- Fraud detection services, which may include using your Personal Information to detect and prevent fraud against us and our Clients, including to detect unauthorized log-ins.
- Compliance. We may use Personal Information to comply with applicable laws, regulations, or legal processes, industry standards, and Ministry Brands’ policies.
How Long We Keep Your Personal Information
- Your Personal Information is reasonably necessary to manage our operations, to manage your relationship with us, or to satisfy another purpose for which we collected the information;
- Your Personal Information is reasonably necessary to carry out a disclosed purpose that is reasonably compatible with the context in which the Personal Information was collected;
- Your Personal Information is reasonably required to protect or defend our rights or property (which will generally relate to applicable laws that limit actions in a particular case); or
- We are otherwise required or permitted to keep your Personal Information by applicable laws or regulations.
How We Disclose, Share, and Sell Personal Information
Sales and Sharing of Personal Information
- Identifiers
- Personal Information described in Cal. Civ. Code § 1798.80(e)
- Internet or other electronic network activity information
- Geolocation data
- Inferences
Disclosures for a Business or Commercial Purpose
- Auditing related to ad impressions.
- Ensuring security and integrity of Personal Information.
- Debugging to identify and repair errors that impair existing intended functionality.
- Short-term, transient use, including, but not limited to, nonpersonalized advertising.
- Performing services on our behalf.
- Providing advertising and marketing services (except for cross-context behavioral advertising).
- Undertaking internal research for technological development and demonstration.
- Undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by us.
- Processing, maintaining, or collecting Personal Information on our behalf.
- Detecting or protecting against malicious, deceptive, fraudulent, or illegal activity.
- For internal use by the service provider.
Privacy Rights Relating to Your Personal Information
- The categories of sources from which the Personal Information was collected
- Our business or commercial purposes for collecting, selling, sharing, or disclosing Personal Information
- The categories of recipients to which we disclose Personal Information
- The categories of Personal Information that we sold, and for each category identified, the categories of third parties to which we sold that particular category of Personal Information
- The categories of Personal Information that we disclosed for a business purpose, and for each category identified, the categories of recipients to which we disclosed that particular category of Personal Information
How to Contact Us
Cookie Notice
Effective February 28th 2023
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Cookies and Tracking Technologies
First-Party and Third-Party Cookies
Cookie Types and Uses
Information Automatically Collected through Cookies
- Device Identifiers, including internet browser, IP address, device ID, operating system version, approximate location, and push notification token.
- Information about Your Interaction with the Sites, including the times and dates you visited the Sites, pages you viewed, and links you clicked.
- Usage Preferences, including time zone, language, screen resolution, and other usage preferences you select when visiting the Sites.
- Referring Link, including the website or advertisement that referred you to our Sites.
How We Use and Share Automatically Collected Information
Improve User Experience
Third-Party Analytics
Advertising and Marketing
Your Choices about Cookies
Browser Settings
Device Settings
Third-Party Opt-Out Mechanisms
- For more information on how Google Analytics uses data it collects, visit google.com/policies/privacy/partners/. To opt out of Google Analytics, visit tools.google.com/dlpage/gaoptout. To adjust your Google advertising settings, visit adssettings.google.com.
- For more information regarding Microsoft’s data practices, visit privacy.microsoft.com/en-us/privacystatement.
- To change your privacy and advertising settings with Facebook, login to your Facebook account and navigate to the Privacy Center at https://www.facebook.com/privacy/center/ or review your Ad Preferences at https://www.facebook.com/adpreferences/.
- To learn more about opting out of data collection by Oracle, visit datacloudoptout.oracle.com/optout.
- For more information about Matamo’s functionality and data collection, visit https://matomo.org/privacy-policy/.
Contact
Effective January 30th 2023 to February 28th 2023
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Cookies and Tracking Technologies
First-Party and Third-Party Cookies
Cookie Types and Uses
Information Automatically Collected through Cookies
- Device Identifiers, including internet browser, IP address, device ID, operating system version, approximate location, and push notification token.
- Information about Your Interaction with the Sites, including the times and dates you visited the Sites, pages you viewed, and links you clicked.
- Usage Preferences, including time zone, language, screen resolution, and other usage preferences you select when visiting the Sites.
- Referring Link, including the website or advertisement that referred you to our Sites.
How We Use and Share Automatically Collected Information
Improve User Experience
Third-Party Analytics
Advertising and Marketing
Your Choices about Cookies
Browser Settings
Device Settings
Third-Party Opt-Out Mechanisms
- For more information on how Google Analytics uses data it collects, visit google.com/policies/privacy/partners/. To opt out of Google Analytics, visit tools.google.com/dlpage/gaoptout. To adjust your Google advertising settings, visit adssettings.google.com.
- For more information regarding Microsoft’s data practices, visit privacy.microsoft.com/en-us/privacystatement.
- To change your privacy and advertising settings with Facebook, login to your Facebook account and navigate to the Privacy Center at https://www.facebook.com/privacy/center/ or review your Ad Preferences at https://www.facebook.com/adpreferences/.
- To learn more about opting out of data collection by Oracle, visit datacloudoptout.oracle.com/optout.
- For more information about Matamo’s functionality and data collection, visit https://matomo.org/privacy-policy/.
Contact
DMCA Notice
Effective February 28th 2023
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- A description of the copyrighted work you claim to have been infringed. If you are not the owner of the copyrighted work, you must also include your electronic or digital signature as a person authorized to act on behalf of the copyright owner;
- A description of where the material that you claim is infringing is located on our Website;
- Information reasonably sufficient to permit MB to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notification is accurate, and that you are the copyright owner or are authorized to act on behalf of the copyright owner.
- MB shall remove or disable access to the material that is alleged to be infringing;
- MB shall forward the written notification to such alleged infringer (“Subscriber”);
- MB shall take reasonable steps to promptly notify the Subscriber that it has removed or disabled access to the material.
- A physical or electronic signature of the Subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
- MB shall promptly provide you, the complaining party, with a copy of the Counter Notification;
- MB shall inform you that it will replace the removed material or cease disabling access to it within ten (10) business days;
- MB shall replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter Notification, provided MB’s Designated Agent has not received notice from you that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on MB’s network or system.
Effective January 30th 2023 to February 28th 2023
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- A description of the copyrighted work you claim to have been infringed. If you are not the owner of the copyrighted work, you must also include your electronic or digital signature as a person authorized to act on behalf of the copyright owner;
- A description of where the material that you claim is infringing is located on our Website;
- Information reasonably sufficient to permit MB to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notification is accurate, and that you are the copyright owner or are authorized to act on behalf of the copyright owner.
- MB shall remove or disable access to the material that is alleged to be infringing;
- MB shall forward the written notification to such alleged infringer (“Subscriber”);
- MB shall take reasonable steps to promptly notify the Subscriber that it has removed or disabled access to the material.
- A physical or electronic signature of the Subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
- MB shall promptly provide you, the complaining party, with a copy of the Counter Notification;
- MB shall inform you that it will replace the removed material or cease disabling access to it within ten (10) business days;
- MB shall replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter Notification, provided MB’s Designated Agent has not received notice from you that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on MB’s network or system.
Legacy Terms of Service (prior to January 30, 2023)
Effective February 28th 2023
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SOFTWARE LICENSE TERMS AND CONDITIONS
These standard terms and conditions (the “Terms and Conditions”) shall apply to any purchase or procurement of certain products or services by the legal entity identified as Licensee under the applicable Order Form with Licensor procuring Licensed Software, SaaS and/or Support Services (defined below) (“Licensee”) from the legal entity selling such Services and identified as ‘Licensor’ under the applicable Order Form with Licensee (“Licensor”). These Terms and Conditions consists of the attached Order Form executed by these parties (including any attachments to such Order Form), and any related agreements previously executed by these parties concerning the specific subject-matter of the Order Form. Unless otherwise specifically agreed upon in writing by Licensor and Licensee, these Terms and Conditions shall apply to any Licensed Software, SaaS and/or Support Services provided to Licensee by any affiliate or subsidiary of Licensor. In the event of a conflict between the provisions of these Terms and Conditions, the Order Form, an attachment to the Order Form, or any related agreements previously executed between these parties the following order of precedence shall apply: (a) the Order Form; (b) these Terms and Conditions; (c) an attachment to the Order Form; (d) any related agreements previously executed between these parties. Unless otherwise specifically set forth in the Order Form, upon any conflict with the terms of any Licensee terms and conditions, including, without limitation, pricing, the terms of the Order Form shall control.
ARTICLE 1 DEFINITIONS. The following terms will have the meanings set forth in this Article 1 when used in these Terms and Conditions.
- “Aggregated Data” means data, which is based on or derived from Licensee Data and which has been aggregated and de-identified in a manner that does not designate or identify Licensee or its Authorized Users as the source of the data.
- “Authorized Users” means those employees, consultants, or agents of Licensee, or certain other third parties to the extent expressly identified in the Order Form, who will be authorized by Licensee to have access to and/or use the Services on behalf of Licensee as set forth in the Order Form, and are subject to the terms of these Terms and Conditions. Licensee shall be liable for any Authorized User’s violation of these Terms and Conditions.
- “Confidential Information” is defined in Article 6 below.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- “Licensed Software” means software that Licensor provides for Licensee’s use. For the avoidance of doubt, Licensed Software does not include SaaS, though Licensed Software may interface with SaaS.
- “Licensee Data” means information, in any form, format, or media, accessed or otherwise processed by Licensor in connection with performance of the Services, including, without limitation all Personal Data and Confidential Information, whether such information is that of Licensee or any Authorized User.
- “Personal Data” means information which, alone or in combination with other personal information, can be used to distinguish or trace a specific individual. Personal Data includes individual names, social security numbers, telephone numbers, home addresses, driver’s license numbers, account numbers, email addresses, and vehicle registration numbers.
- “SaaS” means a software-as-a-service where Licensor hosts (directly or indirectly) for Licensee’s use. For the avoidance of doubt, SaaS does not include Licensed Software.
- “Services” shall mean Licensed Software, SaaS, and Support Services collectively, as applicable.
- “Specifications” refers to such technical and functional specifications for Licensed Software and/or SaaS as are included or referenced in the Order Form.
- “Support Services” refers to maintenance support for the Licensed Software and/or SaaS.
- “Order Form” means an addendum addressing acquisition of a specific set of Services executed by authorized representatives of each party. References the Order Form include any attachments to the Order Form, except where these Terms and Conditions specifically addresses attachments separately.
ARTICLE 2 SERVICES AND FEES.
- Description of Services. Licensee will order Services from Licensor as documented in the Order Form.
- Fees. Licensee shall pay Licensor the fees and charges (“Fees”) set forth in, and in accordance with, the Order Form. Fees are non-cancelable and non-refundable.
- Payment Term. Any payment not received from Licensor by the payment due date within will accrue simple interest at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, without limiting its other rights or liabilities, if any undisputed amount is owing by Licensee, Licensor may (a) terminate the Order Form; (b) accelerate Licensee’s unpaid fee obligations under the Order Form; or (c) suspend the applicable Services until all undisputed overdue amounts are paid in full. Notwithstanding the foregoing, payment subject to a good faith dispute pursuant to Article 2.4 will not accrue late charges.
- Disputed Payments. Licensee may dispute part or the entirety of an invoice by: (a) providing written notice to Licensor of such dispute within ten (10) days of invoice receipt; (b) providing a reasonably detailed description of the dispute, at least sufficient to allow Licensor to analyze the dispute, as part of the written notice; (c) only submitting such dispute in good faith; (d) paying all undisputed amounts when due; and (e) paying all disputed amounts promptly after resolution of such dispute.
- Taxes. All Fees are exclusive of any sales or use taxes, value added tax, goods or services tax, or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Licensee whether due now or subsequently imposed by any jurisdiction. Licensee is not responsible for any taxes based upon the net income of Licensor or its employees unless agreed to elsewhere in these Terms and Conditions or the Order Form.
- Withholding Tax. Any taxes that are required to be withheld from the Services provided under these Terms and Conditions shall be withheld.
ARTICLE 3 INTELLECTUAL PROPERTY.
- Reservation of Rights. Licensee hereby recognizes that Licensor retains all Intellectual Property Rights in the Services, including without limitation, all corrections, modifications and other derivative works to the Services developed by Licensee. All Intellectual Property Rights in any work arising from or created, produced or developed by Licensor, whether alone or jointly with others, under or in the course of these Terms and Conditions, will immediately upon creation or performance vest absolutely in and will be and remain the property of Licensor, and Licensee will not acquire any right, title or interest in and to the same.
- Licensee Rights. Licensee is and will remain the exclusive owner of all right, title and interest in and to Licensee Confidential Information, including, without limitation, any Intellectual Property Rights relating thereto. Licensor shall not acquire any rights in Licensee Confidential Information except for those limited rights expressly specified in these Terms and Conditions, including, without limitation, the right to access Authorized User accounts and Licensee Confidential Information to deliver Services, respond to technical problems, and to otherwise perform its obligations under these Terms and Conditions. For certainty, nothing in these Terms and Conditions will be deemed to grant to Licensor any ownership interests in any of Licensee’s Intellectual Property Rights.
- Licensee Input. Licensor will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, license to use or incorporate into the Services any suggestions, enhancements, requests, recommendations or other feedback provided by Licensee.
- Marks. Except as otherwise set forth in these Terms and Conditions, nothing contained herein shall grant to either party any right, title or interest in the other party’s marks.
- Aggregated Data. Licensee hereby grants to Licensor a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Aggregated Data in connection with developing, providing, maintaining, supporting or improving Licensor’s current and future products and services, as they may be provided to Licensee or other customers of Licensor, or for any other lawful purpose.
ARTICLE 4 USE RIGHTS.
Licensor hereby grants to Licensee a non-exclusive, non-transferable license use the Licensed Software and/or SaaS for its internal business purposes during the term of the Order Form. Licensee shall not sell, lease, assign, sublicense or otherwise transfer or disclose the Licensed Software and/or SaaS in whole or in part, to any third party. Licensee shall not copy the Licensed Software and/or SaaS in whole or in part, except as reasonably necessary for archival back-up purposes and for Licensee's internal modification and use of the Licensed Software and/or SaaS as permitted under these Terms and Conditions. All copies of the Licensed Software and/or SaaS must contain all proprietary marks, legends and copyright notices that appear on the original copies delivered to Licensee by Licensor. In connection with the limited license granted under the Order Form, Licensor may from time to time provide updates, upgrades, new releases, replacements, modifications and/or patches or fixes to the Licensed Software and/or SaaS, in its discretion, deems necessary or appropriate, on the condition that such changes do not materially decrease the functionality or features of the Licensed Software and/or SaaS, or violate any SLA (defined below). Any such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS will be considered part of the Licensed Software and/or SaaS and subject to the terms of these Terms and Conditions (unless these Terms and Conditions is superseded by a further agreement accompanying such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS).
ARTICLE 5 SUPPORT SERVICES.
If set forth in the Order Form, Licensor shall provide Licensee with Support Services in accordance with an applicable service level agreement (“SLA”), incorporated as an exhibit to the Order Form. If Licensor fails to provide the Services in accordance with the applicable SLA, the SLA outlines potential remedies for the Licensee. Licensor shall have no obligation to provide such Support Services if there is a material defect in the Licensed Software or SaaS caused by malfunction of non-Licensor hardware or software, by modification of the Licensed Software and/or SaaS not made by Licensor, by operator error, or by use of the Licensed Software and/or SaaS that is not in accordance with any Licensor documentation. Licensor shall have no obligation to provide Support Services to any non-Authorized User. THE TERMS OF THE SLA SETS FORTH LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN THIS ARTICLE 5.
ARTICLE 6 CONFIDENTIALITY.
- Definition. For purposes of these Terms and Conditions, “Confidential Information” refers to the following items one party to these Terms and Conditions discloses (the “Discloser”) to the other party (the “Recipient”) under these Terms and Conditions: (a) the terms and conditions of these Terms and Conditions and the Order Form; (b) information relating to a party’s business, customers, financial condition, or operations; (c) a party’s information technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium or oral and marked or clearly identified by a party as confidential or proprietary at the time of disclosure; and (e) any other nonpublic, sensitive information, including Personal Data.
- Exceptions. Confidential Information does not include information that: (a) is known to the Recipient prior to its first receipt of such information from the Discloser; (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by Recipient; (c) is independently developed by the Recipient without access to or use of the Confidential Information; or (d) is approved for release by the Discloser.
- Nondisclosure. Recipient will not use Confidential Information for any purpose other than pursuant to these Terms and Conditions. Recipient: (a) will not disclose Confidential Information to any third party, except employees, contractors and service providers of Recipient who reasonably needs access for such purpose and is subject to a nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms and Conditions; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
- Retention of Rights. These Terms and Conditions does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
- Return of Confidential Information. Upon termination of these Terms and Conditions, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
- Data Security. In addition to, the foregoing confidentiality obligations, Licensor agrees that it will maintain appropriate technical and organizational measures intended to comply with industry standard practices and all applicable laws and regulations, including without limitation all applicable laws and regulations relating to privacy, security, and with respect to the use, processing, handling, security, storage, and disclosure of Personal Data under these Terms and Conditions. In addition, Licensor shall provide its Services in accordance with generally recognized information security practices, guidelines, or requirements. Upon reasonable written request by Licensee, Licensor shall make available to Licensee its most recent Customer Data Security Statement and/or its Privacy Policies.
- Security Incident. In the event of unauthorized disclosure of Personal Data in Licensor’s possession resulting from a security incident, Licensor shall, after Licensor first becomes aware of such occurrence: (a) promptly notify Licensee of the incident; and (b) reasonably cooperate with Licensee to investigate the incident.
ARTICLE 7 REPRESENTATIONS & WARRANTIES.
- Right to Contract & Disclose. Each party represents and warrants that (a) it has the legal power to enter into these Terms and Conditions; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; and (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder.
- Compliance with Laws. Each party’s business and performance under these Terms and Conditions is and will be in compliance with all applicable international, federal, state, and local laws and government rules and regulations.
- Licensed Software Warranties. Licensor warrants that the Licensed Software shall perform substantially in accordance with the technical specifications and general industry standards for sixty (60) days following delivery (the “Warranty Period”). If Licensee believes there has been a breach of warranty it must notify Licensor in writing within the Warranty Period describing the issue in sufficient detail. In the event of breach of the warranty in this Article 7.3, Licensee’s sole remedy shall be, at Licensor’s discretion: (a) Licensor shall repair the Licensed Software; (b) replace the Licensed Software with software of substantially similar functionality; or (c) terminate the Order Form and refund Licensee applicable Fees paid to Licensor by Licensee for the Licensed Software not in compliance with this warranty.
- SaaS Warranties. Licensor warrants that: (a) it has a right to grant a license to use the SaaS in accordance with the terms of these Terms and Conditions; (b) the SaaS will be delivered in a workmanlike manner in accordance with industry standards; and (c) the SaaS will perform substantially in accordance with the technical specifications during the term of the Order Form. If Licensee believes there has been a breach of warranty it must notify Licensor in writing within the term of the Order Form describing the issue in sufficient detail. In the event of breach of the warranty in this Article 7.4, Licensee’s sole remedy shall be, at Licensor’s discretion: (i) Licensor shall repair the SaaS; (ii) replace the SaaS with software of substantially similar functionality; or (iii) terminate the Order Form and refund Licensee applicable Fees paid to Licensor by Licensee for the SaaS not in compliance with this warranty.
- Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED HEREIN, ALL SAAS AND LICENSED SOFTWARE ARE PROVIDED “AS-IS,” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SAAS OR LICENSED SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SAAS OR LICENSED SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SAAS OR LICENSED SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SAAS OR LICENSED SOFTWARE S (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SAAS OR LICENSED SOFTWARE) WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) SAAS OR LICENSED SOFTWARE (OR ANY SERVER(S) THAT MAKE THE SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ARTICLE 8 INDEMNIFICATION.
- Licensee Indemnification. Licensee shall defend, indemnify and hold Licensor and its affiliates, trustees, officers, employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with third party claims, demands, suits or proceedings made or brought against Licensor based on: (a) Licensee’s use of the Services in violation of any local, state, federal or foreign law applicable to Licensee’s use of the Services or in a way that damages a third party; or (b) any Licensee Confidential Information infringing Intellectual Property Rights of any third party.
- Licensor Indemnification. Licensor will defend, at its expense, any action brought against Licensee to the extent that it is based on a third party claim that the use of the Services directly infringes any U.S. copyright or misappropriates any trade secret recognized under U.S. law, and Licensor will indemnify Licensee from any costs, damages and fees finally awarded against Licensee in such action which are attributable to such claim. Licensee agrees to notify Licensor promptly in writing of any claim, to permit Licensor to defend, compromise or settle the claim and to provide all available information and reasonable assistance regarding such claim.
Should any Services become, or in Licensor’s opinion be likely to become, the subject of a claim for infringement, Licensor may: (a) procure for Licensee, at no cost to Licensee, the right to continue to use the Services; (b) replace or modify the Services at no cost to Licensee, to make such non-infringing, provided that the replacement or modified Services provides substantially similar function and performance; or (c) if neither (a) or (b) are practical, terminate the right to use such Services.
Licensor shall have no liability for any claim based upon: (i) the combination, operation or use of any Services with equipment, devices or software not supplied or specified by Licensor; (ii) the alteration or modification of any Services that was not made by Licensor; or (iii) the failure by Licensee to use a supported version of the Services after it has been made available to Licensee. This Article 8.2 states the entire liability of Licensor with respect to infringement of any third party Intellectual Property Rights by the Services and Licensor shall have no additional liability with respect to any alleged or proven infringement.
Licensee shall promptly notify Licensor in writing upon its discovery of any unauthorized use or infringement of the Services, Confidential Information, or Licensor’s Intellectual Property Rights with respect thereto.
Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate and provide full information and reasonable assistance to Licensor and its counsel in connection with any such action or proceeding.
ARTICLE 9 LIMITATION OF LIABILITY.
EXCEPT FOR (A) THIRD PARTY CLAIMS COVERED BY THE INDEMNIFICATION OBLIGATIONS, OR (B) NONPAYMENT OF FEES DUE AND PAYABLE BY LICENSEE UNDER THESE TERMS AND CONDITIONS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE LICENSEE TO LICENSOR UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 10 TERM AND TERMINATION.
- Term. The terms and conditions of these Terms and Conditions will continue in full force and effect to the extent necessary to give effect to the Order Form.
- Renewal of Order Form. Unless otherwise set forth in the Order Form, the Order Form shall automatically renew for a term of the same length as the Order Form’s initial term, unless either party provides written notice of intent not to renew no later than one hundred twenty (120) days prior to the expiration of the Order Form’s then current term. In the event that the Order Form is automatically renewed as set forth in this Article 10.2, unless otherwise set forth therein, Licensor may increase Fees no more than once per annum.
- Termination for Breach. In the event of any material breach, the non-breaching party may terminate the Order Form by giving thirty (30) days prior written notice to the other party; provided, however, the Order Form shall not terminate if the other party has cured the breach prior to the expiration of such thirty (30) day period.
- Termination for Insolvency. Either party may terminate the Order Form for cause by providing written notice, without opportunity to cure, in the event that: (a) the other party fails to function as a going concern; (b) a receiver, trustee, or other custodian for the other party or its assets is appointed, applied for, or consented to; (c) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course; (d) the other party makes an assignment for the benefit of creditors; (e) the other party is liquidated or dissolved; or (f) any proceedings are commenced by or against the other party under any bankruptcy, insolvency, or debtor’s relief law and not dismissed within sixty (60) days.
- Effect of Termination. Upon termination of the Order Form, Licensee shall return to Licensor all copies of the Services, Confidential Information, documentation and all other tangible materials related to the Services, including without limitation, all modifications and derivative works thereof. Unless otherwise set forth in the Order Form, upon Licensor’s termination due to a material breach by Licensee, (a) Licensee shall pay Licensor all Fees due through the end of the Order Form’s term; (b) all rights granted with respect to the Services will immediately terminate; and (c) Licensee will delete or transfer to Licensor any Licensor Confidential Information, as provided hereunder. Upon termination, where Licensor is the breaching party, Licensor will (i) refund any unearned Fees paid by Licensee prior to the effective date of termination; and (ii) delete or transfer to Licensee any Licensee Confidential Information, as provided hereunder.
- Survival. Articles concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination the Order Form.
ARTICLE 11 GENERAL TERMS.
- Force Majeure. Neither party shall be deemed in breach of these Terms and Conditions to the extent that performance of their obligations (other than Licensee’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include: acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party, provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.
- Equitable Remedies. Nothing herein shall prohibit either party from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Licensor from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by Licensee involving Licensor’s Intellectual Property Rights or Confidential Information.
- Non-Solicitation. Licensee shall not hire, employ, or contract for services, attempt to hire, employ or contract for services, directly or indirectly through a third party, any current employee of Licensor without prior written consent, for a minimum time period of twelve (12) months after termination or expiration of these Terms and Conditions.
Licensee may hire, employ or contract for services any previously employed employee or agent of Licensor so long as said employee or agent has been separated from such relationship for at least twelve (12) months from the date of such employees’ separation. Notwithstanding the foregoing, Licensee shall be permitted to hire, employ or contract for services an employee as a result of a general advertisement for employment. - Waiver. Neither party will be deemed to have waived any of its rights under these Terms and Conditions by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms and Conditions will constitute a waiver of any other breach of these Terms and Conditions.
- Notices. Notices shall be addressed to that party at its address as set out in the Order Form (or to other such address as notified to the other party in writing in accordance with these Terms and Conditions). Wherever one party is required or permitted to give notice to the other pursuant to these Terms and Conditions, such notice shall be deemed given when delivered in hand, when mailed by registered or certified mail, return receipt requested, postage prepaid, or when sent by a third party courier service where receipt is verified by the receiving party’s acknowledgment.
- Interpretation. These Terms and Conditions will be construed as a whole according to the fair meaning of its language and, regardless of who is responsible for its original drafting, will not be construed for or against either party.
- Severability. If a court of competent jurisdiction rules that a provision of these Terms and Conditions is unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of these Terms and Conditions will continue in full force and effect.
- Independent Contractors. Nothing contained herein or done in pursuance of these Terms and Conditions shall constitute either party the agent, partner or joint venture of the other for any purpose or in any sense whatsoever.
- No Third Party Beneficiaries. There are no third-party beneficiaries to these Terms and Conditions.
- Section Titles. Section titles or references used in these Terms and Conditions shall be without substantive meaning or content of any kind and are not a part of the agreements among the Parties evidenced hereby.
- Governing Law and Venue. These Terms and Conditions and all matters arising out of or relating to these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms and Conditions. All such disputes will be brought and decided in a court of law in the State of Delaware.
- Assignment. Licensee shall not assign its rights or delegate its obligations under these Terms and Conditions without the prior written consent of Licensor except that Licensee may assign any right or obligation set forth in these Terms and Conditions to a successor entity in the event of a merger, consolidation or sale of Licensee’s business or all or substantially all of Licensee's stock or assets, provided the assignee agrees in writing to assume all of Licensee’s obligations and obligations under these Terms and Conditions. Any attempted assignment in violation hereof shall be void and of no force or effect. Licensor may assign its rights and delegate its duties hereunder at any time without the consent of Licensee.
- Entire Agreement; Modification. These Terms and Conditions together with the Order Form constitutes the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and Conditions and such additional documents. These Terms and Conditions and/or the Order Form may not be modified or amended except in writing signed by both parties.
- Export Controls. Each party agrees that it will individually obtain any export licenses that may be required under applicable laws prior to any export or re-export of goods or information provided under these Terms and Conditions.
- Counterparts. The Order Form may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
- Electronic Signatures. Signature pages may be signed manually or electronically, and may be transmitted by facsimile or another secure mode of transmission. Electronic signatures and electronically transmitted signatures shall have the same legal effect as an original.
PROFESSIONAL SERVICES TERMS AND CONDITIONS
These standard terms and conditions (the “Terms and Conditions”) shall apply to any purchase or procurement of certain product or services by the legal entity identified as Licensee under the applicable Order Form with Licensor procuring Professional Services (defined below) (“Licensee”) from the legal entity selling such Services and identified as ‘Licensor’ under the applicable Order Form with Licensee (“Licensor”). These Terms and Conditions consists of the attached Order Form executed by these parties (including any attachments to such Order Form), and any related agreements previously executed by these parties concerning the specific subject-matter of the Order Form. Unless otherwise specifically agreed upon in writing by Licensor and Licensee, these Terms and Conditions shall apply to any Professional Services provided to Licensee by any affiliate or subsidiary of Licensor. In the event of a conflict between the provisions of these Terms and Conditions, the Order Form, an attachment to the Order Form, or any related agreements previously executed between these parties the following order of precedence shall apply: (a) the Order Form; (b) these Terms and Conditions; (c) an attachment to the Order Form; (d) any related agreements previously executed between these parties. Unless otherwise specifically set forth in the Order Form, upon any conflict with the terms of any Licensee terms and conditions, including, without limitation, pricing, the terms of the Order Forms shall control.
ARTICLE 1 DEFINITIONS. The following terms will have the meanings set forth in this Article 1 when used in these Terms and Conditions.
- “Confidential Information” is defined in Article 4 below.
- “Deliverable” means deliverables to be created, developed and delivered by Licensor pursuant to the Order Form.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- “Professional Services” or “Services” means implementation, training, configuration, migration, consulting and/or professional services provided by Licensor to Licensee pursuant to the Order Form.
- “Order Form” means an addendum addressing acquisition of a specific set of Services executed by authorized representatives of each party. References the Order Form include any attachments to the Order Form, except where these Terms and Conditions specifically addresses attachments separately.
ARTICLE 2 SERVICES AND FEES.
- Description of Services. All Professional Services to be performed and Deliverables to be developed by Licensor shall be described in the Order Form.
- Licensee Obligations. Licensee acknowledges and agrees that performance of Professional Services is heavily dependent upon information and responses to be provided by Licensee. Accordingly, in addition to any specific responsibilities set out in the Order Form, Licensee shall: (a) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Licensor, to allow Licensor to perform the Professional Services and develop the Deliverables; (b) carry out reviews and respond to requests for approval and information on a timely basis; (c) ensure that Licensor has available to them personnel familiar with Licensee’s requirements and with the expertise necessary to permit Licensor to undertake and complete the Professional Services; and (d) Licensee shall make available to Licensor all equipment, material, information, data, network access and/or facilities that Licensor may reasonably require to carry out its obligations under the Order Form. Licensee acknowledges that any delay on its part in the performance of its obligations may have an impact on Licensor’s performance of its activities under the Order Form and Licensor shall not be liable for any delay to the extent caused by Licensee’s failure to fulfill any of its material requirements under the Agreement or any Order Form.
- Project Manager. Licensee will designate a “Project Manager”, if applicable under the Order Form, as the primary point of contact for Licensee for matter relating to the provision of the Professional Services and development of the Deliverables.
- Fees. Licensee shall pay Licensor the fees and charges (“Fees”) set forth in, and in accordance with, the Order Form. Fees are non-cancelable and non-refundable.
- Payment Term. Any payment not received from Licensor by the payment due date within will accrue simple interest at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, without limiting its other rights or liabilities, if any undisputed amount is owing by Licensee, Licensor may (a) terminate the Order Form; (b) accelerate Licensee’s unpaid fee obligations under the Order Form; or (c) suspend the applicable Services until all undisputed overdue amounts are paid in full. Notwithstanding the foregoing, payment subject to a good faith dispute pursuant to Article 2.6 will not accrue late charges.
- Disputed Payments. Licensee may dispute part or the entirety of an invoice by: (a) providing written notice to Licensor of such dispute within ten (10) days of invoice receipt; (b) providing a reasonably detailed description of the dispute, at least sufficient to allow Licensor to analyze the dispute, as part of the written notice; (c) only submitting such dispute in good faith; (d) paying all undisputed amounts when due; and (e) paying all disputed amounts promptly after resolution of such dispute.
- Travel Expenses. Subject to Licensor’s Travel and Expense Policy, Licensee will reimburse Licensor for documented travel costs, including cancellation fees, and expenses incurred by Licensor employees and contractors involved in the provision of the Professional Services. Licensor’s Travel and Expense Policy is available to Licensee upon request.
- Taxes. All Fees are exclusive of any sales or use taxes, value added tax, goods or services tax, or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Licensee whether due now or subsequently imposed by any jurisdiction. Licensee is not responsible for any taxes based upon the net income of Licensor or its employees unless agreed to elsewhere in these Terms and Conditions or the Order Form.
- Withholding Tax. Any taxes that are required to be withheld from the Services provided under these Terms and Conditions shall be withheld.
ARTICLE 3 INTELLECTUAL PROPERTY.
- Reservation of Rights. Licensee hereby recognizes that Licensor retains all Intellectual Property Rights in the Services, including without limitation, all corrections, modifications and other derivative works to the Services developed by Licensee. All Intellectual Property Rights in any work arising from or created, produced or developed by Licensor, whether alone or jointly with others, under or in the course of these Terms and Conditions, will immediately upon creation or performance vest absolutely in and will be and remain the property of Licensor, and Licensee will not acquire any right, title or interest in and to the same. Notwithstanding the foregoing, the parties acknowledge they may agree to modify the ownership of Deliverables prepared or created by Licensor in the course of performing Professional Services under the Order Form in said document, and in the event of a conflict between such terms and these Terms and Conditions, the terms of the Order Form shall apply.
- Licensee Rights. Licensee is and will remain the exclusive owner of all right, title and interest in and to Licensee Confidential Information, including, without limitation, any Intellectual Property Rights relating thereto. Licensor shall not acquire any rights in Licensee Confidential Information except for those limited rights expressly specified in these Terms and Conditions. For certainty, nothing in these Terms and Conditions will be deemed to grant to Licensor any ownership interests in any of Licensee’s Intellectual Property Rights.
- Licensee Input. Licensor will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, license to use or incorporate into the Services any suggestions, enhancements, requests, recommendations or other feedback provided by Licensee.
- Marks. Except as otherwise set forth in these Terms and Conditions, nothing contained herein shall grant to either party any right, title or interest in the other party’s marks.
ARTICLE 4 CONFIDENTIALITY.
- Definition. For purposes of these Terms and Conditions, “Confidential Information” refers to the following items one party to these Terms and Conditions discloses (the “Discloser”) to the other party (the “Recipient”) under these Terms and Conditions: (a) the terms and conditions of these Terms and Conditions and the Order Form; (b) information relating to a party’s business, customers, financial condition, or operations; (c) a party’s information technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium or oral and marked or clearly identified by a party as confidential or proprietary at the time of disclosure; and (e) any other nonpublic, sensitive information.
- Exceptions. Confidential Information does not include information that: (a) is known to the Recipient prior to its first receipt of such information from the Discloser; (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by Recipient; (c) is independently developed by the Recipient without access to or use of the Confidential Information; or (d) is approved for release by the Discloser.
- Nondisclosure. Recipient will not use Confidential Information for any purpose other than pursuant to these Terms and Conditions. Recipient: (a) will not disclose Confidential Information to any third party, except employees, contractors and service providers of Recipient who reasonably needs access for such purpose and is subject to a nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms and Conditions; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
- Retention of Rights. These Terms and Conditions does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
- Return of Confidential Information. Upon termination of these Terms and Conditions, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
ARTICLE 5 REPRESENTATIONS & WARRANTIES.
- Right to Contract & Disclose. Each party represents and warrants that (a) it has the legal power to enter into these Terms and Conditions; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; and (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder.
- Compliance with Laws. Each party’s business and performance under these Terms and Conditions is and will be in compliance with all applicable international, federal, state, and local laws and government rules and regulations.
- Licensor Warranty. Licensor shall perform Professional Services and Deliverables in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. Licensor shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and Deliverables. If during the term of Order Form, Licensor receives written notice from Licensee of a defect with the performance of the Professional Services and/or Deliverables, Licensor will promptly re-perform the relevant Professional Services and/or Deliverables for no additional fee.
- Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE 5, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 6 INDEMNIFICATION.
- Licensee Indemnification. Licensee shall defend, indemnify and hold Licensor and its affiliates, trustees, officers, employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with third party claims, demands, suits or proceedings made or brought against Licensor based on: (a) Licensee’s use of the Services in violation of any local, state, federal or foreign law applicable to Licensee’s use of the Services or in a way that damages a third party; or (b) any Licensee Confidential Information infringing Intellectual Property Rights of any third party.
- Licensor Indemnification. Licensor will defend, at its expense, any action brought against Licensee to the extent that it is based on a third party claim that the use of the Services directly infringes any U.S. copyright or misappropriates any trade secret recognized under U.S. law, and Licensor will indemnify Licensee from any costs, damages and fees finally awarded against Licensee in such action which are attributable to such claim. Licensee agrees to notify Licensor promptly in writing of any claim, to permit Licensor to defend, compromise or settle the claim and to provide all available information and reasonable assistance regarding such claim.
Should any Services become, or in Licensor’s opinion be likely to become, the subject of a claim for infringement, Licensor may: (a) procure for Licensee, at no cost to Licensee, the right to continue to use the Services; (b) replace or modify the Services at no cost to Licensee, to make such non-infringing, provided that the replacement or modified Services provides substantially similar function and performance; or (c) if neither (a) or (b) are practical, terminate the right to use such Services.
Licensor shall have no liability for any claim based upon: (i) the combination, operation or use of any Services with equipment, devices or software not supplied or specified by Licensor; (ii) the alteration or modification of any Services that was not made by Licensor; or (iii) the failure by Licensee to use a supported version of the Services after it has been made available to Licensee. This Article 6.2 states the entire liability of Licensor with respect to infringement of any third party Intellectual Property Rights by the Services and Licensor shall have no additional liability with respect to any alleged or proven infringement.
Licensee shall promptly notify Licensor in writing upon its discovery of any unauthorized use or infringement of the Services, Confidential Information, or Licensor’s Intellectual Property Rights with respect thereto.
Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate and provide full information and reasonable assistance to Licensor and its counsel in connection with any such action or proceeding.
ARTICLE 7LIMITATION OF LIABILITY.
EXCEPT FOR (A) THIRD PARTY CLAIMS COVERED BY THE INDEMNIFICATION OBLIGATIONS, OR (B) NONPAYMENT OF FEES DUE AND PAYABLE BY LICENSEE UNDER THESE TERMS AND CONDITIONS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE LICENSEE TO LICENSOR UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 8 TERM AND TERMINATION.
- Term. The terms and conditions of these Terms and Conditions will continue in full force and effect to the extent necessary to give effect to the active Order Form.
- Renewal of Order Form. Unless otherwise set forth in the Order Form, the Order Form shall automatically renew for a term of the same length as the Order Form’s initial term, unless either party provides written notice of intent not to renew no later than one hundred twenty (120) days prior to the expiration of the Order Form’s then current term. In the event that the Order Form is automatically renewed as set forth in this Article 8.2, unless otherwise set forth therein, Licensor may increase Fees no more than once per annum.
- Termination for Breach. In the event of any material breach, the non-breaching party may terminate the Order Form by giving thirty (30) days prior written notice to the other party; provided, however, the Order Form shall not terminate if the other party has cured the breach prior to the expiration of such thirty (30) day period.
- Termination for Insolvency. Either party may terminate the Order Form for cause by providing written notice, without opportunity to cure, in the event that: (a) the other party fails to function as a going concern; (b) a receiver, trustee, or other custodian for the other party or its assets is appointed, applied for, or consented to; (c) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course; (d) the other party makes an assignment for the benefit of creditors; (e) the other party is liquidated or dissolved; or (f) any proceedings are commenced by or against the other party under any bankruptcy, insolvency, or debtor’s relief law and not dismissed within sixty (60) days.
- Effect of Termination. Upon termination of the Order Form, Licensee shall return to Licensor all copies of the Services, Confidential Information, documentation and all other tangible materials related to the Services, including without limitation, all modifications and derivative works thereof. Unless otherwise set forth in the Order Form, upon Licensor’s termination due to a material breach by Licensee, (a) Licensee shall pay Licensor all Fees due through the end of the Order Form’s term; (b) all rights granted with respect to the Services will immediately terminate; and (c) Licensee will delete or transfer to Licensor any Licensor Confidential Information, as provided hereunder. Upon termination, where Licensor is the breaching party, Licensor will (i) refund any unearned Fees paid by Licensee prior to the effective date of termination; and (ii) delete or transfer to Licensee any Licensee Confidential Information, as provided hereunder.
- Survival. Articles concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination the Order Form.
ARTICLE 9 GENERAL TERMS.
- Force Majeure. Neither party shall be deemed in breach of these Terms and Conditions to the extent that performance of their obligations (other than Licensee’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include: acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party, provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.
- Equitable Remedies. Nothing herein shall prohibit either party from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Licensor from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by Licensee involving Licensor’s Intellectual Property Rights or Confidential Information.
- Non-Solicitation. Licensee shall not hire, employ, or contract for services, attempt to hire, employ or contract for services, directly or indirectly through a third party, any current employee of Licensor without prior written consent, for a minimum time period of twelve (12) months after termination or expiration of these Terms and Conditions. Licensee may hire, employ or contract for services any previously employed employee or agent of Licensor so long as said employee or agent has been separated from such relationship for at least twelve (12) months from the date of such employees’ separation. Notwithstanding the foregoing, Licensee shall be permitted to hire, employ or contract for services an employee as a result of a general advertisement for employment.
- Waiver. Neither party will be deemed to have waived any of its rights under these Terms and Conditions by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms and Conditions will constitute a waiver of any other breach of these Terms and Conditions.
- Notices. Notices shall be addressed to that party at its address as set out in the Order Form (or to other such address as notified to the other party in writing in accordance with these Terms and Conditions). Wherever one party is required or permitted to give notice to the other pursuant to these Terms and Conditions, such notice shall be deemed given when delivered in hand, when mailed by registered or certified mail, return receipt requested, postage prepaid, or when sent by a third party courier service where receipt is verified by the receiving party’s acknowledgment.
- Interpretation. These Terms and Conditions will be construed as a whole according to the fair meaning of its language and, regardless of who is responsible for its original drafting, will not be construed for or against either party.
- Severability. If a court of competent jurisdiction rules that a provision of these Terms and Conditions is unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of these Terms and Conditions will continue in full force and effect.
- Independent Contractors. Nothing contained herein or done in pursuance of these Terms and Conditions shall constitute either party the agent, partner or joint venture of the other for any purpose or in any sense whatsoever.
- No Third Party Beneficiaries. There are no third-party beneficiaries to these Terms and Conditions.
- Section Titles. Section titles or references used in these Terms and Conditions shall be without substantive meaning or content of any kind and are not a part of the agreements among the Parties evidenced hereby.
- Governing Law and Venue. These Terms and Conditions and all matters arising out of or relating to these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware, except for its conflict of law provisions, which shall not apply. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to these Terms and Conditions. All such disputes will be brought and decided in a court of law in the State of Delaware.
- Assignment. Licensee shall not assign its rights or delegate its obligations under these Terms and Conditions without the prior written consent of Licensor except that Licensee may assign any right or obligation set forth in these Terms and Conditions to a successor entity in the event of a merger, consolidation or sale of Licensee’s business or all or substantially all of Licensee's stock or assets, provided the assignee agrees in writing to assume all of Licensee’s obligations and obligations under these Terms and Conditions. Any attempted assignment in violation hereof shall be void and of no force or effect. Licensor may assign its rights and delegate its duties hereunder at any time without the consent of Licensee.
- Entire Agreement; Modification. These Terms and Conditions together with the Order Form constitutes the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and Conditions and such additional documents. These Terms and Conditions and/or the Order Form may not be modified or amended except in writing signed by both parties.
- Export Controls. Each party agrees that it will individually obtain any export licenses that may be required under applicable laws prior to any export or re-export of goods or information provided under these Terms and Conditions.
- Counterparts. The Order Form may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
- Electronic Signatures. Signature pages may be signed manually or electronically, and may be transmitted by facsimile or another secure mode of transmission. Electronic signatures and electronically transmitted signatures shall have the same legal effect as an original.
Media Release
Effective June 5th 2023
DownloadTable of Contents
Background Screening Master Terms
Effective October 3rd 2024
DownloadTable of Contents
- Summary of Your Rights Under the Fair Credit Reporting Act (16 CFR Part 601)
- Notice to Users of Consumer Reports (16 CFR Part 601)
- YOUR ACCOUNT.
- Credentialing. You shall be subject to our customer credentialling process prior to gaining access to our Services. You agree to provide all documents that we may request in order for us to verify and confirm your identity, your status as a legitimate business or other organization, and any applicable licensing requirements. YOU UNDERSTAND THAT WE HAVE THE RIGHT TO REJECT OR DENY SERVICE TO ANY CUSTOMER WHO DOES NOT MEET OUR CUSTOMER CREDENTIALING REQUIREMENTS.
- Account Information. To use our Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. We may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from us and our partners at the email address and/or phone number you provide. You agree to provide us with your current, valid contact information and to update your email address and phone number any time this information changes. In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify us if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Provider will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials. Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Right to Use Platform; Restrictions on Use. Subject to your compliance with these Terms, Provider hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Platform solely as expressly authorized by Provider under these Terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Platform and maintain an account may provide access to the Services to Authorized Users. “Platform” means the background checking platform offered by Provider or one of its licensors that allows you to submit orders (“Orders”) and access the Services offered by Provider. With respect to the Platform you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to the Platform in whole or in part, to any third party, or include such Platform in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit the Platform, including any part, feature, function, or user interface thereof except as expressly permitted by Provider under these Terms;
- interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- access the Platform in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode the Platform, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Platform, in whole or in part;
- access or use the Platform in order to benchmark or compare the performance of the Platform, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform;
- violate any applicable law or regulation in your use of the Platform; or
- use the Platform in any manner not permitted by these Terms.
- Cancellations and Refunds. All Orders must be carefully reviewed before submission. All submitted Orders are final and non-refundable. You will incur the cost of all Orders upon submission, including any Order that is later cancelled.
- Responsibility for Accurate Search Criteria. –You acknowledge and agree that it is your responsibility to provide accurate search criteria with respect to each consumer who is the subject of an Order. Further, you understand that you must carefully review all search information submitted with each Order and acknowledge that information cannot be changed following an Order submission. If you do need to correct or modify any information regarding the subject of your Order, including without limitation: name, date of birth, social security number, current address (if such change results in a different city or county of residence), such modified Order will be treated as a new search, and you will be charged fees for the original Order and the modified Order.
- USE OF CONSUMER REPORTS.
- Employment Purposes. If the Consumer Reports you obtain from us are used for Employment Purposes: (i) where state and local law mandates, you shall order a Consumer Report only after a conditional offer of employment has been made, and (ii) you shall, in every case prior to obtaining or causing a Consumer Report to be obtained, disclose to each consumer with respect to whom a Consumer Report is ordered, in a clear and conspicuous manner in a document consisting solely of the disclosure, that the Consumer Report is being obtained by You for employment purposes and shall also obtain written authorization from the applicable consumer that authorizes You to obtain a Consumer Report with respect to such consumer.
- EEO Certification. You hereby certify that you shall not use any Consumer Report in violation of any federal or state equal employment opportunity laws or regulations or in violation of any state or local ban-the-box, fair chance hiring, or related laws or regulations.
- New York City Certifications. If you are located in New York City or an applicant with respect to whom a Consumer Report is sought is a New York City resident or worker, you shall: (i) request a Consumer Report that includes criminal history information only after extending a conditional offer of employment to the job applicant, or, in the alternative that the position for which You are requesting a criminal history search is exempt under the Fair Chance Act; and (ii) request a Consumer Report that includes consumer credit history about an applicant or employee only if one of the permissible exemptions under Stop Credit Discrimination in Employment Act (N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015)) applies.
- California Certifications. If you are located in California or an applicant with respect to whom a Consumer Report is sought is a California resident or worker, you hereby certify that you shall, in accordance with the Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq. (ICRAA), and the Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq. (CCRAA):
- Request and use reports solely for a permissible purpose(s) identified under the ICRAA and the CCRAA
- When, at any time, reports are sought for employment purposes, unless a legal exception otherwise applies, provide a clear and conspicuous disclosure in writing to the consumer, in a document that consists solely of the disclosure (1) that a Consumer Report may be obtained; (2) the permissible purpose of the Consumer Report; (3) that information on the individual’s character, general reputation, personal characteristics and mode of living may be disclosed; (4) the name, address, telephone number, and website of Provider; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22; and (6) notify the individual of the Internet website address of Provider where the consumer may find information about Provider’s privacy practices;
- Provide the individual a means by which the individual may indicate on a written form by means of a box to check that the consumer wishes to receive a copy of any report that is prepared; and,
- If taking any adverse action, you shall comply with California Civil Code Sections 1785.20 and 1786.40, including, but not limited to, advising the consumer against whom the adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Consumer Report, informing the consumer in writing of your name, address and telephone number, and providing the consumer a written notice of his rights under the ICRAA and the CCRAA.
- Retention. You shall maintain copies of all written authorizations from consumers for a minimum of six (6) years from the date of request and shall make such written authorizations available to Provider upon request.
- Pre-Adverse Action. Prior to taking any adverse action that is based in whole or in part on a Consumer Report you shall adhere to the conditions imposed by the FCRA (15 U.S.C §1681b(b)(3)) which include: providing the consumer a copy of the applicable Consumer Report along with a letter that contains the name, address and toll-free number of provider, enclosing a copy of Summary of Your Rights Under the Fair Credit Reporting Act. Further, you shall allow the consumer a reasonable amount of time to respond to the pre-adverse notification before the adverse action is taken, taking into account weekends and holidays.
- Adverse Action Requirements. If you take an adverse action that is based in whole or in part on a Consumer Report you shall comply with the requirements of the FCRA (15 U.S.C. §1681m), including providing oral, written or electronic notice to the consumer of the adverse action; providing the name, address and toll-free telephone number of Provider to the consumer; informing the consumer that Provider did not make the decision with respect to the adverse action and is therefore unable to provide the consumer with the specific reasons why the adverse action was taken; and notifying the consumer of their right to obtain a free copy of the Consumer Report within sixty (60) days and to dispute with Provider the accuracy or completeness of any information in the Consumer Report.
- Authorizations. You shall ensure that Consumer Reports are requested only by one of Your authorized representatives and shall further ensure that authorized representatives do not obtain Consumer Reports on themselves or any other person except in furtherance of a permissible purpose under the FCRA.
- Nondisclosure of Report. You shall hold all Consumer Reports obtained hereunder in strict confidence and shall not disclose any Consumer Report to any third party unless disclosure to a third party is in furtherance of a permissible under the FCRA. You shall use the Consumer Report one time only and shall only use the Consumer Report for a permissible purpose under the FCRA. You shall not sell, sublicense, lease, deliver, display or otherwise distribute any Consumer Report provided hereunder except as may be permitted under these Terms.
- Disposal of Reports. You may retain copies of Consumer Reports for as long as permitted under your document retention policies. You shall use reasonable best efforts to prevent unauthorized access to the Consumer Reports. Any data or Consumer Report that must be destroyed shall be destroyed in a secure manner to make it inaccessible, unreadable and/or unrecoverable, including without limitation by: burning, pulverizing or shredding, destroying or erasing electronic files beyond use, or hiring an authorized document destruction firm.
- Compliance Assessment. Upon reasonable notice, you agree to provide to us Consumer Report-related documents maintained as to consumers upon whom Consumer Reports were obtained, including copies of executed disclosures and authorizations, any pre-adverse and adverse action correspondence, and reasonable evidence of your compliance with applicable laws regarding consumer data privacy in order to enable us to satisfy our obligations under federal and state laws and regulations and our vendor agreements.
- Notification. You shall immediately notify Provider in writing of any data security breach affecting or reasonably likely to have affected any Consumer Report obtained hereunder.
- SERVICE-SPECIFIC TERMS AND CERTIFICATIONS.
- National Criminal Database. You acknowledge that any information obtained from our National Criminal Database is comprised of information obtained from various government agencies throughout the country. The content of the National Criminal Database is subject to change with or without notice. A complete list of the agencies providing information to the National Criminal Database is available upon your request. The National Criminal Database search is considered a pointer search. We will not report any information solely from this product without first verifying such information for accuracy through records obtained at the court level, as defined by Section 613 of the FCRA. We make no express or implied warranty as to the accuracy or the completeness of the information from the National Criminal Database.
- Motor Vehicle Records. You hereby certify that you will only order Motor Vehicle Records or Driving Records (in either case, “MVRs”) in compliance with applicable state and federal laws, including but not limited to the Drivers Privacy Protection Act (18 U.S.C. §2721 et seq.). You acknowledge and agree that we may conduct audits of your compliance with the terms of this Section 3.B. in our sole discretion and we may terminate the MVR services in the event we determine you are not compliant. You further certify and agree as follows:
- you will not allow unauthorized access to MVRs;
- you shall indemnify any state and its agent(s) from any wrongful use, sale, or release of MVRs;
- your intended use of MVRs is for a permissible purpose under the FCRA and the DPPA;
- no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to us in the form of the consumer’s signed release authorization form;
- you shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means;
- you shall immediately notify us if you discover that MVRs provided pursuant to this Agreement have been disclosed or used in violation of this agreement or any applicable state or federal law;
- you shall not use any information provided by any state to create or update a file that would allow you to develop your own source of driving history information; and
- you shall provide an Affidavit of Intended Use and Statement of Confidentiality upon our request, and you agree to execute all individual state-required documents for the receipt and use of MVRs.
- Investigative Consumer Reports. If you request an Investigative Consumer Report (which includes character references and extended employment verification), you hereby certify as follows:
- you have implemented safeguards to protect the integrity of your screening programs.
- you shall submit a release signed by the subject of the Consumer Report that contains the following:
- A clear disclosure to the consumer that an Investigative Consumer Report – including information as to the consumer’s character, general reputation, personal characteristics and mode of living – may be made;
- A statement informing the consumer of their right to request from you the nature and scope of any Investigative Consumer Report; and
- A statement informing the consumer of their right to request a Summary of Consumer Rights in the form approved by the Consumer Financial Protection Bureau. As defined by Section 603(e) of the FCRA, an “Investigative Consumer Report” is a Consumer Report for which information on a consumer’s character, general reputation, personal characteristics, or mode of living, is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information.
- International Searches. You acknowledge that we may engage third party contractors to perform international background screening. Because of the differences in foreign laws, access restrictions, language, and recordkeeping capabilities, we cannot ensure or guarantee the accuracy of international background screening services. You understand and agree that you are fully responsible for complying with all foreign laws and regulations applicable to your use of international search results.
- Employment Eligibility; I-9 Services. If you have requested that Provider serve as your E-Verify Employer Agent for purposes of your participation in the Department of Homeland Security’s (“DHS”) E-Verify program for purposes of employment eligibility determinations, you hereby certify and agree to the following:
- you shall be responsible for providing the fully executed DHS-required Memorandum of Understanding (“MOU”) to Provider, retaining copies of all applicable documents and complying with all aspects of the MOU;
- you shall comply with the requirements of the E-Verify program, including the E-Verify User Manual and the MOU, and the posting of the following E-Verify Posters: “E-Verify Participation Poster” and “Right to Work Poster”;
- you will not use the Employment Eligibility Program for pre- employment inquiries and acknowledge that such use is strictly prohibited;
- you will provide us with the names, titles, addresses, telephone numbers, and email addresses for your representative(s) serving as point(s) of contact for program verification matters;
- you will not modify or alter in any way any Further Action Notices (including Tentative Non-confirmation notices) provided to you by Provider in order for you to contact an applicant and determine if the applicant wishes to contest the findings;
- you shall not to take “adverse action” against an applicant based upon the employment eligibility status of the verification and shall give the applicant the option of contesting the findings by checking the appropriate status directly on the non-confirmation notice; and
- you shall not engage in discriminatory practices against anyone and shall apply verification procedures to all new hires (not selectively).
- Consent Based Social Security Number Verification Service. This Section shall only apply if you elect to use our Consent Based Social Security Number Verification Service (“SSNVS”). You hereby agree to the following:
- you will obtain from the consumer and provide to us a release signed by the consumer prior to submitting a verification request. You will further provide all information requested in order for us to provide the SSNVS, including without limitation, the consumer’s first and last names and social security number.
- you accept all liability for all decisions based upon the SSNVS.
- you acknowledge that the SSNVS does not verify employment eligibility or an employee’s immigration status, and does not interface with the DHS employment eligibility verification system
- Drug Testing. This Section shall only apply if you elect to order drug tests. You understand and agree that any drug tests you order will be performed by third parties who are acting at your direction. We will include the results of any such tests in Consumer Reports. Service fees charged to you shall include Medical Review Officer (“MRO”) services from a MRO we have chosen in our sole discretion, for review of all positive drug tests. The MRO will be responsible for: (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results in accordance with DOT regulations; (v) resolution of correctable flaws on COC forms; (vi) acting as Designated Employee Representative (“DER”) contact if unable to contact the consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated and unacceptable results; (ix) maintenance of drug test reports pursuant to applicable state and federal laws and regulations; and (x) medical review of “medically necessary” substances and protection of the consumer’s privacy rights in accordance with state and federal laws.
- Continuous Monitoring Service. This Section shall only apply if you have elected to use our Continuous Monitoring Service. We will provide criminal record monitoring services to identify criminal activity with respect to consumers who have been selected by you after they have been onboarded by you as an employee, volunteer or independent contractor. You certify that you have obtained the appropriate consent(s) from the consumer, as required by the FCRA and state law. No later than 48 hours after a consumer is no longer engaged by you as an employee, volunteer or independent contractor, you shall notify us so that the Continuous Monitoring Service may be discontinued with respect to such consumer. You certify that all consumers who are subject to Continuous Monitoring Service have been made aware of it through your policies and procedures. You shall be billed on a monthly basis for the Continuous Monitoring Service and shall be charged per consumer.
- Adjudication Services. This Section shall only apply if you have elected to use our Adjudication/Risk Assessment Services. You are solely responsible for selecting the selection criteria (the “Selection Criteria”) that a potential applicant or employee must meet in order to be hired, trained or promoted, as applicable, and for any decisions taken based on the hiring criteria you have selected. You agree to consult with your own legal counsel to determine whether the Selection Criteria complies with applicable laws and regulations. You acknowledge and agree that we shall not be liable for any application of your Selection Criteria, that the application of your Selection Criteria is purely clerical in nature and shall be performed by us on your behalf. You acknowledge that we are not authorized to make any decision regarding hiring, training or promotion on your behalf. You shall review the content of the Consumer Reports in the manner and method prescribed by applicable law, including but not limited to, conducting individualized assessments and making final decisions on all Consumer Reports. You shall ensure that your use of the Selection Criteria in evaluating the Consumer Report and in your final decision with respect to an applicant or employee is in compliance with all applicable laws and regulations. Notwithstanding the foregoing, you shall not provide to us, and we shall not be obligated to follow, any “no hire” policy for a set level of offense such as a “no felony rule” unless you are required by law or regulation to make such criteria a condition of employment. We reserve the right to refuse to apply any Selection Criteria in our sole and complete discretion. You acknowledge that in performing the Adjudication Services we rely solely upon third party information, including without limitation educational institutions, past employers, and public records. We have not and will not conduct an independent investigation to determine the accuracy of the information furnished to us. We therefore cannot ensure or guarantee the accuracy of such information.
You agree to indemnify and hold harmless Provider and its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, damages, expenses (including attorneys’ fees) and costs arising or resulting from any claim that the Selection Criteria or the use thereof does not comply with any law or regulation. Provider shall have the right, in its sole discretion, to defend any such claim. - FCRA Adverse Action Notification Service. This Section shall only apply if you have elected to use our Adverse Action Notification Service. At your direction and to help you comply with your obligations under the federal FCRA, we will provide pre-adverse and adverse action notices to an applicant in connection with any pre-adverse or adverse action on an applicant-by-applicant basis and only after you have received a Consumer Report. You shall be deemed to have approved the content of any notice. You shall determine the timing and delivery of any notices. You understand that any decision regarding taking any pre-adverse or adverse action with respect to an applicant is solely your responsibility. You shall provide to us an email address for the impacted consumer to allow us to send any notices electronically. This service does not cover your compliance with any applicable state or local laws that may require additional adverse action responsibilities.
- Credit Reports. This Section shall only apply if you elect to order credit reports. You understand and agree to be subject to additional credentialing and application procedures as required by the credit bureaus furnishing the credit report product. You certify that you will promptly notify us of any change in your location, structure, ownership, or control, including but not limited to the addition of any branch(es) that will be requesting and/or accessing credit reports. Credit bureaus issuing credit reports may prohibit the following persons, entities and/or businesses from obtaining credit reports: adult entertainment service of any kind; asset location service; attorney or law firm engaged in the practice of law (unless engaged in collection or using the report in connection with a consumer bankruptcy pursuant to the written authorization of the consumer); bail bondsman (unless licensed by the state in which they are operating); child location service (i.e. a company that locates missing children); credit counseling (except not-for-profit credit counselors); credit repair clinic; dating service; financial counseling (except a registered securities broker dealer or a certified financial planner); foreign company or agency of a foreign government; genealogical or heir research firm; law enforcement agency; massage service; news agency or journalist; pawn shop; private detective, detective agency or investigative company; repossession company; subscriptions (magazines, book clubs, record clubs, etc.); tattoo service; time shares - company seeking information in connection with time shares (exception: financers of time shares); weapons dealer, seller or distributor.
- Equifax’s The Work Number®. If you have purchased The Work Number® information, you agree that you will hold Equifax harmless in the purchase and use of the information. You further agree that: (a) the information obtained will not be forwarded or shared with any third party; (b) the information will only be obtained for a permissible purpose under the FCRA; (c) you will comply with all applicable state laws regarding consumer credit or consumer identity protection; and (d) you will provide notice of consumer rights as required for Employment Purposes or identity theft as follows: www.consumerfinance.gov/learnmore/.
- THIRD PARTY APPLICATIONS. If Provider provides any integration or interfaces between the Platform and any third party products and/or services with functionality that interoperates with the Platform (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Provider to integrate with such Third Party-Applications. Provider and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Provider cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with the Platform in a manner acceptable to Provider. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use the Platform. You will indemnify Provider and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Provider or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Consumer PII (defined below)).
- FEES AND PAYMENT.
- We will invoice you for any Order(s) on a monthly basis. Fees are non-cancellable and non-refundable. Governmental or other third-party data vendor pass-through fees are subject to change without notice. We reserve the right to change the fees charged for our Services upon thirty (30) days’ prior written notice to you. You shall pay all invoices within thirty (30) days of the date of the invoice. Payment may be made by credit card, check, e-check or ACH/wire.
- Past due amounts shall accrue simple interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less, from the date such payment was due until the date paid. If any invoice to Customer is not paid within thirty (30) days of its due date, in our sole discretion, we may temporarily suspend or downgrade your account until payment is received. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Services and/or Platform. If collection efforts are required, you shall pay all costs of collection including attorneys’ fees. Customer may only dispute charges appearing upon an invoice if notice of such dispute is provided to us in writing within thirty (30) days from the date of the invoice. Any check or other payment returned due to insufficient funds or any other reason is subject to a $25.00 fee.
- You shall pay or reimburse Provider for all taxes arising out of these Terms other than Provider’s income taxes. If you are required to withhold or deduct any taxes from the payment of any fees, you will increase the amount payable to Provider by the amount of such taxes so that Provider receives the full amount of fees and expenses. If Provider has the legal obligation to pay or collect taxes for which you are responsible, including without limitation sales tax, such taxes shall be paid by you unless you provide Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Provider’s failure to initially invoice you for any applicable taxes does not relieve you of responsibility for such taxes.
- If you have subscribed to a subscription-based plan for the Platform or Services, you agree to the terms, conditions and limitations associated with them that are posted on our websites or applications. The following additional terms shall also apply to subscription-based plans:
- We may offer subscription-based plans, including plans that include credits for Orders through the Platform (“Credits”). Credits may only be redeemed through the Platform, have no cash value, are non-transferrable and non-refundable. CREDITS ARE ONLY VALID DURING THE SUBSCRIPTION PERIOD IN WHICH THEY ARE PURCHASED AND ISSUED. CREDITS EXPIRE IMMEDIATELY UPON EXPIRATION OR TERMINATION OF THE SUBSCRIPTION PLAN OR SUBSCRIPTION PERIOD AND THEY DO NOT ROLL OVER.
- You may choose to cancel your subscription early at your convenience provided that we will not provide any refunds of prepaid fees or unused fees, and you will promptly pay all unpaid fees due through the end of your current subscription period. If you are paying via credit card or ACH, you authorize us to charge the applicable subscription fees at the then applicable rate plus any applicable taxes for the subscription to your credit card or account on file at the expiration of the term.
- Your subscription may only be cancelled by submitting your cancellation request here or as otherwise provided during the subscription sign-up process.
- We may offer a free trial of the Platform or Services. When a free-trial period ends, your paid subscription begins, and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. If you cancel your subscription for any reason, or if the free-trial period ends and you cancel your subscription, unless required by law, you will not be able to access or retrieve any data you added, uploaded, or created during the time you subscribed to the Platform or Services or during the free trial period.
- INTELLECTUAL PROPERTY OF PROVIDER. You recognize that Provider and its third-party licensors own all rights, title, and interests in and to the Platform (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Platform), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Provider, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Provider or its third-party licensors, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Provider does not grant you any rights to the Platform. . You do not acquire any ownership interest in the Platform under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Provider or its licensors or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- TERM AND TERMINATION
- Term and Termination. Except with respect to Ministry Mobilizer, these Terms shall commence on the date these Terms are accepted by you and shall continue unless terminated by either of us as follows: (i) upon sixty (60) days’ prior written notice by one of us to the other, (ii) immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation. Notwithstanding the foregoing, with respect to Ministry Mobilizer, the subscription term shall be a period of one (1) year and shall automatically renew for additional one (1) year terms unless either party has provided at least sixty (60) days’ prior written notice to the other of its intent to not renew prior to the end of the initial term or the then current renewal term. In addition, with respect to Ministry Mobilizer, either party may terminate these Terms immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation.
- Effect of Termination. Upon the termination of these Terms: (a) Provider shall have no obligation to perform any Services hereunder after the effective date of such termination; (b) you shall pay to Provider any fees or other amounts payable for the Services performed hereunder prior to the effective date of termination; and (c) all rights and licenses granted to you with respect to the Platform will immediately terminate, and you shall immediately discontinue use of the Platform. You understand and agree that in the event you request the return of any data or Consumer PII that you have provided to us or the Platform we have the right to charge you service fees and any applicable costs and expenses as a condition of returning any such data or Consumer PII.
- DATA PRIVACY AND SECURITY. You agree to keep and maintain Consumer Reports and any Consumer PII secure and confidential. “Consumer PII” means any personal information you provide to the Platform to conduct a background check on a consumer who is the subject of a Consumer Report. You represent and warrant that you maintain a comprehensive data security policy, plan, system and facility that implements all necessary and reasonable precautions for the protection of Consumer Reports and Consumer PII, including without limitation, storing the Consumer Reports and PII in a secure environment, transmitting the Consumer Reports and any Consumer PII in a secure manner, destroying paper copies of Consumer Reports when no longer needed, designating a limited number of key personnel who have a need to know about the Consumer PII and Consumer Reports, and maintaining strict procedures to ensure that your personnel are not able to use the Platform or Consumer Reports for improper, illegal or unauthorized purposes. You are solely responsible for the activities of any person accessing the Platform using any credentials issued to you. You shall promptly notify us of any security breach involving unauthorized access to any Consumer PII or Consumer Report provided to you by us pursuant to these Terms.
We shall only process Consumer PII in connection with our obligations and responsibilities under these Terms and both you and we agree to comply with federal, state, and local laws, rules, and regulations related to privacy and data protection that are applicable to the performance of the Services (“Applicable Data Privacy Laws”). We will notify you if we receive a request to exercise an individual’s privacy rights under Applicable Data Privacy Laws. We will not respond directly to an individual rights request unless explicitly instructed in writing by you to respond, provided such response can be reasonably carried out without undue burden on us. Upon written request, we shall delete or return all Consumer PII at the end of the Term, unless we have a valid legal obligation to retain such Consumer PII. We will maintain the confidentiality and security of any Consumer PII that we receive and any archival Consumer Reports that we maintain in accordance with our own data security and confidentiality policies and practices. We will notify you without undue delay when we become aware of any unauthorized access to, misappropriation of, loss of, damage to, or other compromise of the security, integrity, availability, or confidentiality of personal information (a “Security Incident”). We will take steps to address the Security Incident and mitigate potential harm that may result from the Security Incident and will provide timely information to you about the Security Incident as necessary for you to comply with Applicable Data Privacy Laws.
We may review your records that are reasonably required to demonstrate compliance with these Terms at any time upon reasonable prior notice during the Term and for 5 years thereafter. Your breach of this Agreement or violation of any applicable law, regulation or rule discovered by us may result in immediate suspension and/or termination of your account, legal action and referral to regulatory agencies. - CONFIDENTIALITY. By virtue of this Agreement, each party may obtain, learn, develop or have access to non-public information of the other party (“Confidential Information”). “Confidential Information” shall include all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked “confidential” or should be known to the Receiving Party to be confidential given the circumstances of its disclosure, whether communicated orally or in writing, and whether intangible or intangible form. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature against unauthorized use, disclosure or publication. The confidentiality obligations set forth in this Section do not apply to information that can be shown by the Receiving Party’s written records which: (i) was or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party that, insofar as is known to the Receiving Party, did not acquire the information from the Disclosing Party under an obligation of confident; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
- DISCLAIMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE PLATFORM WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.
- COMPLIANCE. You represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- CONSULTATION WITH LEGAL COUNSEL. You understand and agree that we do not provide any legal advice regarding your compliance with the various federal, state, and international laws which might apply. YOU ARE RESPONSIBLE FOR CONSULTATION WITH YOUR OWN LEGAL COUNSEL REGARDING THE PURCHASE AND USE OF CONSUMER REPORTS. You are solely responsible for the content of Disclosures, Authorizations, Pre-Adverse and Adverse letters, and the Summary of Rights, even when obtaining such sample documents from Provider for your own use. You agree not to rely on Provider for legal advice and acknowledge that you are solely responsible for your legal obligations and decisions and will consult with your own legal counsel at your own discretion regarding all legal matters, including but not limited to your obligations under the FCRA, applicable privacy laws and applicable state laws.
- INDEMNIFICATION; LIMITATION OF LIABILITY You agree to indemnify and hold us, our affiliates, and our and their respective directors, officers, employees and agents harmless against any cause of action, loss, liability, damage, cost or expense, including, without limitation, attorney’s fees and costs, arising out of or relating to: (A) your breach of any covenants, representatives or warranties of these Terms; (B) your violation of any applicable law or regulation, including without limitation, the FCRA; (C) for any misuse, abuse, or unlawful procurement of a Consumer Report by your agents or employees; and (D) the willful or malicious conduct by you or your employees. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY AND DAMAGES ARISING OT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. - EQUITABLE REMEDIES. Nothing herein shall prohibit Provider from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Provider from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Provider’ Intellectual Property Rights.
- WAIVER. No failure or delay by Provider in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- CONTACT US. You may contact Provider by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SEVERABILITY. If a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- SECTION TITLES. Section titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- GOVERNING LAW AND VENUE. These Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- ASSIGNMENT. You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Provider. Any attempted assignment in violation hereof shall be void and of no force or effect. Provider may assign its rights and delegate its duties hereunder at any time without your consent.
- ENTIRE AGREEMENT; MODIFICATION. These Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Provider reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
Effective June 27th 2023 to October 3rd 2024
DownloadSummary of changes
Table of Contents
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- Summary of Your Rights Under the Fair Credit Reporting Act (16 CFR Part 601) 	
- Notice to Users of Consumer Reports (16 CFR Part 601)
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- YOUR ACCOUNT. 		
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- Credentialing. You shall be subject to our customer credentialling process prior to gaining access to our Services. You agree to provide all documents that we may request in order for us to verify and confirm your identity, your status as a legitimate business or other organization, and any applicable licensing requirements. YOU UNDERSTAND THAT WE HAVE THE RIGHT TO REJECT OR DENY SERVICE TO ANY CUSTOMER WHO DOES NOT MEET OUR CUSTOMER CREDENTIALING REQUIREMENTS. 			
- Account Information. To use our Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. We may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from us and our partners at the email address and/or phone number you provide. You agree to provide us with your current, valid contact information and to update your email address and phone number any time this information changes. In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify us if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Provider will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials. Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old. 			
- Right to Use Platform; Restrictions on Use. Subject to your compliance with these Terms, Provider hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Platform solely as expressly authorized by Provider under these Terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Platform and maintain an account may provide access to the Services to Authorized Users. “Platform” means the background checking platform offered by Provider or one of its licensors that allows you to submit orders (“Orders”) and access the Services offered by Provider. With respect to the Platform you shall not (and shall not authorize or encourage any other person to):				
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- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to the Platform in whole or in part, to any third party, or include such Platform in a service bureau, time sharing or outsourcing offering; 					
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit the Platform, including any part, feature, function, or user interface thereof except as expressly permitted by Provider under these Terms; 					
- interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; 					
- attempt to gain unauthorized access to the Platform or its related systems or networks; 					
- access the Platform in order to build a competitive product or service; 					
- reverse engineer, disassemble, decompile, or decode the Platform, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Platform, in whole or in part; 					
- access or use the Platform in order to benchmark or compare the performance of the Platform, or any portion thereof, against another company’s products or services; 					
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof; 					
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform; 					
- violate any applicable law or regulation in your use of the Platform; or 					
- use the Platform in any manner not permitted by these Terms. 				
			 - Cancellations and Refunds. All Orders must be carefully reviewed before submission. All submitted Orders are final and non-refundable. You will incur the cost of all Orders upon submission, including any Order that is later cancelled. 			
- Responsibility for Accurate Search Criteria. –You acknowledge and agree that it is your responsibility to provide accurate search criteria with respect to each consumer who is the subject of an Order. Further, you understand that you must carefully review all search information submitted with each Order and acknowledge that information cannot be changed following an Order submission. If you do need to correct or modify any information regarding the subject of your Order, including without limitation: name, date of birth, social security number, current address (if such change results in a different city or county of residence), such modified Order will be treated as a new search, and you will be charged fees for the original Order and the modified Order. 		
	 - USE OF CONSUMER REPORTS.		
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- Employment Purposes. If the Consumer Reports you obtain from us are used for Employment Purposes: (i) where state and local law mandates, you shall order a Consumer Report only after a conditional offer of employment has been made, and (ii) you shall, in every case prior to obtaining or causing a Consumer Report to be obtained, disclose to each consumer with respect to whom a Consumer Report is ordered, in a clear and conspicuous manner in a document consisting solely of the disclosure, that the Consumer Report is being obtained by You for employment purposes and shall also obtain written authorization from the applicable consumer that authorizes You to obtain a Consumer Report with respect to such consumer. 			
- EEO Certification. You hereby certify that you shall not use any Consumer Report in violation of any federal or state equal employment opportunity laws or regulations or in violation of any state or local ban-the-box, fair chance hiring, or related laws or regulations. 			
- New York City Certifications. If you are located in New York City or an applicant with respect to whom a Consumer Report is sought is a New York City resident or worker, you shall: (i) request a Consumer Report that includes criminal history information only after extending a conditional offer of employment to the job applicant, or, in the alternative that the position for which You are requesting a criminal history search is exempt under the Fair Chance Act; and (ii) request a Consumer Report that includes consumer credit history about an applicant or employee only if one of the permissible exemptions under Stop Credit Discrimination in Employment Act (N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015)) applies. 			
- California Certifications. If you are located in California or an applicant with respect to whom a Consumer Report is sought is a California resident or worker, you hereby certify that you shall, in accordance with the Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq. (ICRAA), and the Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq. (CCRAA):				
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- Request and use reports solely for a permissible purpose(s) identified under the ICRAA and the CCRAA 					
- When, at any time, reports are sought for employment purposes, unless a legal exception otherwise applies, provide a clear and conspicuous disclosure in writing to the consumer, in a document that consists solely of the disclosure (1) that a Consumer Report may be obtained; (2) the permissible purpose of the Consumer Report; (3) that information on the individual’s character, general reputation, personal characteristics and mode of living may be disclosed; (4) the name, address, telephone number, and website of Provider; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22; and (6) notify the individual of the Internet website address of Provider where the consumer may find information about Provider’s privacy practices; 					
- Provide the individual a means by which the individual may indicate on a written form by means of a box to check that the consumer wishes to receive a copy of any report that is prepared; and, 					
- If taking any adverse action, you shall comply with California Civil Code Sections 1785.20 and 1786.40, including, but not limited to, advising the consumer against whom the adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Consumer Report, informing the consumer in writing of your name, address and telephone number, and providing the consumer a written notice of his rights under the ICRAA and the CCRAA. 				
			 - Retention. You shall maintain copies of all written authorizations from consumers for a minimum of six (6) years from the date of request and shall make such written authorizations available to Provider upon request. 			
- Pre-Adverse Action. Prior to taking any adverse action that is based in whole or in part on a Consumer Report you shall adhere to the conditions imposed by the FCRA (15 U.S.C §1681b(b)(3)) which include: providing the consumer a copy of the applicable Consumer Report along with a letter that contains the name, address and toll-free number of provider, enclosing a copy of Summary of Your Rights Under the Fair Credit Reporting Act. Further, you shall allow the consumer a reasonable amount of time to respond to the pre-adverse notification before the adverse action is taken, taking into account weekends and holidays. 			
- Adverse Action Requirements. If you take an adverse action that is based in whole or in part on a Consumer Report you shall comply with the requirements of the FCRA (15 U.S.C. §1681m), including providing oral, written or electronic notice to the consumer of the adverse action; providing the name, address and toll-free telephone number of Provider to the consumer; informing the consumer that Provider did not make the decision with respect to the adverse action and is therefore unable to provide the consumer with the specific reasons why the adverse action was taken; and notifying the consumer of their right to obtain a free copy of the Consumer Report within sixty (60) days and to dispute with Provider the accuracy or completeness of any information in the Consumer Report. 			
- Authorizations. You shall ensure that Consumer Reports are requested only by one of Your authorized representatives and shall further ensure that authorized representatives do not obtain Consumer Reports on themselves or any other person except in furtherance of a permissible purpose under the FCRA. 			
- Nondisclosure of Report. You shall hold all Consumer Reports obtained hereunder in strict confidence and shall not disclose any Consumer Report to any third party unless disclosure to a third party is in furtherance of a permissible under the FCRA. You shall use the Consumer Report one time only and shall only use the Consumer Report for a permissible purpose under the FCRA. You shall not sell, sublicense, lease, deliver, display or otherwise distribute any Consumer Report provided hereunder except as may be permitted under these Terms. 			
- Disposal of Reports. You may retain copies of Consumer Reports for as long as permitted under your document retention policies. You shall use reasonable best efforts to prevent unauthorized access to the Consumer Reports. Any data or Consumer Report that must be destroyed shall be destroyed in a secure manner to make it inaccessible, unreadable and/or unrecoverable, including without limitation by: burning, pulverizing or shredding, destroying or erasing electronic files beyond use, or hiring an authorized document destruction firm. 			
- Compliance Assessment. Upon reasonable notice, you agree to provide to us Consumer Report-related documents maintained as to consumers upon whom Consumer Reports were obtained, including copies of executed disclosures and authorizations, any pre-adverse and adverse action correspondence, and reasonable evidence of your compliance with applicable laws regarding consumer data privacy in order to enable us to satisfy our obligations under federal and state laws and regulations and our vendor agreements. 			
- Notification. You shall immediately notify Provider in writing of any data security breach affecting or reasonably likely to have affected any Consumer Report obtained hereunder. 		
	 - SERVICE-SPECIFIC TERMS AND CERTIFICATIONS.		
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- National Criminal Database. You acknowledge that any information obtained from our National Criminal Database is comprised of information obtained from various government agencies throughout the country. The content of the National Criminal Database is subject to change with or without notice. A complete list of the agencies providing information to the National Criminal Database is available upon your request. The National Criminal Database search is considered a pointer search. We will not report any information solely from this product without first verifying such information for accuracy through records obtained at the court level, as defined by Section 613 of the FCRA. We make no express or implied warranty as to the accuracy or the completeness of the information from the National Criminal Database. 			
- Motor Vehicle Records. You hereby certify that you will only order Motor Vehicle Records or Driving Records (in either case, “MVRs”) in compliance with applicable state and federal laws, including but not limited to the Drivers Privacy Protection Act (18 U.S.C. §2721 et seq.). You acknowledge and agree that we may conduct audits of your compliance with the terms of this Section 3.B. in our sole discretion and we may terminate the MVR services in the event we determine you are not compliant. You further certify and agree as follows: 				
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- you will not allow unauthorized access to MVRs; 					
- you shall indemnify any state and its agent(s) from any wrongful use, sale, or release of MVRs; 					
- your intended use of MVRs is for a permissible purpose under the FCRA and the DPPA; 					
- no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to us in the form of the consumer’s signed release authorization form; 					
- you shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means; 					
- you shall immediately notify us if you discover that MVRs provided pursuant to this Agreement have been disclosed or used in violation of this agreement or any applicable state or federal law; 					
- you shall not use any information provided by any state to create or update a file that would allow you to develop your own source of driving history information; and 					
- you shall provide an Affidavit of Intended Use and Statement of Confidentiality upon our request, and you agree to execute all individual state-required documents for the receipt and use of MVRs. 				
			 - Investigative Consumer Reports. If you request an Investigative Consumer Report (which includes character references and extended employment verification), you hereby certify as follows:				
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- you have implemented safeguards to protect the integrity of your screening programs. 					
- you shall submit a release signed by the subject of the Consumer Report that contains the following:						
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- A clear disclosure to the consumer that an Investigative Consumer Report – including information as to the consumer’s character, general reputation, personal characteristics and mode of living – may be made; 							
- A statement informing the consumer of their right to request from you the nature and scope of any Investigative Consumer Report; and 							
- A statement informing the consumer of their right to request a Summary of Consumer Rights in the form approved by the Consumer Financial Protection Bureau. As defined by Section 603(e) of the FCRA, an “Investigative Consumer Report” is a Consumer Report for which information on a consumer’s character, general reputation, personal characteristics, or mode of living, is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information. 						
				
			 - International Searches. You acknowledge that we may engage third party contractors to perform international background screening. Because of the differences in foreign laws, access restrictions, language, and recordkeeping capabilities, we cannot ensure or guarantee the accuracy of international background screening services. You understand and agree that you are fully responsible for complying with all foreign laws and regulations applicable to your use of international search results. 			
- Employment Eligibility; I-9 Services. If you have requested that Provider serve as your E-Verify Employer Agent for purposes of your participation in the Department of Homeland Security’s (“DHS”) E-Verify program for purposes of employment eligibility determinations, you hereby certify and agree to the following:				
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- you shall be responsible for providing the fully executed DHS-required Memorandum of Understanding (“MOU”) to Provider, retaining copies of all applicable documents and complying with all aspects of the MOU; 					
- you shall comply with the requirements of the E-Verify program, including the E-Verify User Manual and the MOU, and the posting of the following E-Verify Posters: “E-Verify Participation Poster” and “Right to Work Poster”; 					
- you will not use the Employment Eligibility Program for pre- employment inquiries and acknowledge that such use is strictly prohibited; 					
- you will provide us with the names, titles, addresses, telephone numbers, and email addresses for your representative(s) serving as point(s) of contact for program verification matters; 					
- you will not modify or alter in any way any Further Action Notices (including Tentative Non-confirmation notices) provided to you by Provider in order for you to contact an applicant and determine if the applicant wishes to contest the findings; 					
- you shall not to take “adverse action” against an applicant based upon the employment eligibility status of the verification and shall give the applicant the option of contesting the findings by checking the appropriate status directly on the non-confirmation notice; and 					
- you shall not engage in discriminatory practices against anyone and shall apply verification procedures to all new hires (not selectively). 				
			 - Consent Based Social Security Number Verification Service. This Section shall only apply if you elect to use our Consent Based Social Security Number Verification Service (“SSNVS”). You hereby agree to the following:				
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- you will obtain from the consumer and provide to us a release signed by the consumer prior to submitting a verification request. You will further provide all information requested in order for us to provide the SSNVS, including without limitation, the consumer’s first and last names and social security number. 					
- you accept all liability for all decisions based upon the SSNVS. 					
- you acknowledge that the SSNVS does not verify employment eligibility or an employee’s immigration status, and does not interface with the DHS employment eligibility verification system 				
			 - Drug Testing. This Section shall only apply if you elect to order drug tests. You understand and agree that any drug tests you order will be performed by third parties who are acting at your direction. We will include the results of any such tests in Consumer Reports. Service fees charged to you shall include Medical Review Officer (“MRO”) services from a MRO we have chosen in our sole discretion, for review of all positive drug tests. The MRO will be responsible for: (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results in accordance with DOT regulations; (v) resolution of correctable flaws on COC forms; (vi) acting as Designated Employee Representative (“DER”) contact if unable to contact the consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated and unacceptable results; (ix) maintenance of drug test reports pursuant to applicable state and federal laws and regulations; and (x) medical review of “medically necessary” substances and protection of the consumer’s privacy rights in accordance with state and federal laws. 			
- Continuous Monitoring Service. This Section shall only apply if you have elected to use our Continuous Monitoring Service. We will provide criminal record monitoring services to identify criminal activity with respect to consumers who have been selected by you after they have been onboarded by you as an employee, volunteer or independent contractor. You certify that you have obtained the appropriate consent(s) from the consumer, as required by the FCRA and state law. No later than 48 hours after a consumer is no longer engaged by you as an employee, volunteer or independent contractor, you shall notify us so that the Continuous Monitoring Service may be discontinued with respect to such consumer. You certify that all consumers who are subject to Continuous Monitoring Service have been made aware of it through your policies and procedures. You shall be billed on a monthly basis for the Continuous Monitoring Service and shall be charged per consumer. 			
- Adjudication Services. This Section shall only apply if you have elected to use our Adjudication/Risk Assessment Services. You are solely responsible for selecting the selection criteria (the “Selection Criteria”) that a potential applicant or employee must meet in order to be hired, trained or promoted, as applicable, and for any decisions taken based on the hiring criteria you have selected. You agree to consult with your own legal counsel to determine whether the Selection Criteria complies with applicable laws and regulations. You acknowledge and agree that we shall not be liable for any application of your Selection Criteria, that the application of your Selection Criteria is purely clerical in nature and shall be performed by us on your behalf. You acknowledge that we are not authorized to make any decision regarding hiring, training or promotion on your behalf. You shall review the content of the Consumer Reports in the manner and method prescribed by applicable law, including but not limited to, conducting individualized assessments and making final decisions on all Consumer Reports. You shall ensure that your use of the Selection Criteria in evaluating the Consumer Report and in your final decision with respect to an applicant or employee is in compliance with all applicable laws and regulations. Notwithstanding the foregoing, you shall not provide to us, and we shall not be obligated to follow, any “no hire” policy for a set level of offense such as a “no felony rule” unless you are required by law or regulation to make such criteria a condition of employment. We reserve the right to refuse to apply any Selection Criteria in our sole and complete discretion. You acknowledge that in performing the Adjudication Services we rely solely upon third party information, including without limitation educational institutions, past employers, and public records. We have not and will not conduct an independent investigation to determine the accuracy of the information furnished to us. We therefore cannot ensure or guarantee the accuracy of such information.
You agree to indemnify and hold harmless Provider and its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, damages, expenses (including attorneys’ fees) and costs arising or resulting from any claim that the Selection Criteria or the use thereof does not comply with any law or regulation. Provider shall have the right, in its sole discretion, to defend any such claim. 			 - FCRA Adverse Action Notification Service.This Section shall only apply if you have elected to use our Adverse Action Notification Service. At your direction and to help you comply with your obligations under the federal FCRA, we will provide pre-adverse and adverse action notices to an applicant in connection with any pre-adverse or adverse action on an applicant-by-applicant basis and only after you have received a Consumer Report. You shall be deemed to have approved the content of any notice. You shall determine the timing and delivery of any notices. You understand that any decision regarding taking any pre-adverse or adverse action with respect to an applicant is solely your responsibility. You shall provide to us an email address for the impacted consumer to allow us to send any notices electronically. This service does not cover your compliance with any applicable state or local laws that may require additional adverse action responsibilities. 			
- Credit Reports. This Section shall only apply if you elect to order credit reports.You understand and agree to be subject to additional credentialing and application procedures as required by the credit bureaus furnishing the credit report product. You certify that you will promptly notify us of any change in your location, structure, ownership, or control, including but not limited to the addition of any branch(es) that will be requesting and/or accessing credit reports. Credit bureaus issuing credit reports may prohibit the following persons, entities and/or businesses from obtaining credit reports: adult entertainment service of any kind; asset location service; attorney or law firm engaged in the practice of law (unless engaged in collection or using the report in connection with a consumer bankruptcy pursuant to the written authorization of the consumer); bail bondsman (unless licensed by the state in which they are operating); child location service (i.e. a company that locates missing children); credit counseling (except not-for-profit credit counselors); credit repair clinic; dating service; financial counseling (except a registered securities broker dealer or a certified financial planner); foreign company or agency of a foreign government; genealogical or heir research firm; law enforcement agency; massage service; news agency or journalist; pawn shop; private detective, detective agency or investigative company; repossession company; subscriptions (magazines, book clubs, record clubs, etc.); tattoo service; time shares - company seeking information in connection with time shares (exception: financers of time shares); weapons dealer, seller or distributor. 			
- Equifax’s The Work Number®. If you have purchased The Work Number® information, you agree that you will hold Equifax harmless in the purchase and use of the information. You further agree that: (a) the information obtained will not be forwarded or shared with any third party; (b) the information will only be obtained for a permissible purpose under the FCRA; (c) you will comply with all applicable state laws regarding consumer credit or consumer identity protection; and (d) you will provide notice of consumer rights as required for Employment Purposes or identity theft as follows: www.consumerfinance.gov/learnmore/. 		
	 - THIRD PARTY APPLICATIONS. If Provider provides any integration or interfaces between the Platform and any third party products and/or services with functionality that interoperates with the Platform (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Provider to integrate with such Third Party-Applications. Provider and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Provider cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with the Platform in a manner acceptable to Provider. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use the Platform. You will indemnify Provider and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Provider or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Consumer PII (defined below)). 	
- FEES AND PAYMENT. We will invoice you with respect to any Order(s) on a monthly basis. You shall pay all invoices within thirty (30) days of the date of the invoice. Payment may be made by credit card, check, e-check or ACH/wire. Past due amounts shall accrue simple interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less, from the date such payment was due until the date paid. If any invoice to Customer is not paid within thirty (30) days of its due date, in our sole discretion, we may temporarily suspend your account until payment is received. If collection efforts are required, you shall pay all costs of collection including attorneys’ fees. Customer may only dispute charges appearing upon an invoice if notice of such dispute is provided to us in writing within thirty (30) days from the date of the invoice. Any check or other payment returned due to insufficient funds or any other reason is subject to a $25.00 fee.
Governmental or other third-party data vendor pass-through fees are subject to change without notice. We reserve the right to change the fees charged for our Services upon thirty (30) days’ prior written notice to you. Applicable sales or other taxes will be added to all fees.
If you have subscribed to our Ministry Mobilizer service, the following additional terms shall apply:		- 			
- We may charge subscription fees on a monthly or an annual basis depending on which subscription you have selected. 			
- You must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Fees are non-cancellable and non-refundable. 			
- We may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30-day notice period. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes will go into effect for your next monthly term after the 30-day notice period. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using Ministry Mobilizer prior to the commencement of the renewal subscription period for which the price change applies. 			
- If you are paying via credit card or ACH, you authorize us to charge the applicable subscription fees at the then applicable rate plus any applicable taxes for the subscription to your credit card or account on file at the expiration of the term. Your subscription may only be cancelled by submitting your cancellation request here. We may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, if we are unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services. 			
- If you are not paying for Ministry Mobilizer via credit card or ACH, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. In addition, without limiting our other rights, if any fees are owed and not paid by you when due, we may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services. We may offer a free trial of Ministry Mobilizer. When a free-trial period ends, your paid subscription begins, and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial. 			
- If you cancel your subscription for any reason, or if the free-trial period ends and you cancel your subscription, unless required by law, you will not be able to access or retrieve any data you added, uploaded, or created during the time you subscribed to Ministry Mobilizer or during the free trial period. 		
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- INTELLECTUAL PROPERTY OF PROVIDER. You recognize that Provider and its third-party licensors own all rights, title, and interests in and to the Platform (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Platform), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Provider, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Provider or its third-party licensors, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Provider does not grant you any rights to the Platform. . You do not acquire any ownership interest in the Platform under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Provider or its licensors or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world. 	
- TERM AND TERMINATION		
- 			
- Term and Termination. Except with respect to Ministry Mobilizer, these Terms shall commence on the date these Terms are accepted by you and shall continue unless terminated by either of us as follows: (i) upon sixty (60) days’ prior written notice by one of us to the other, (ii) immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation. Notwithstanding the foregoing, with respect to Ministry Mobilizer, the subscription term shall be a period of one (1) year and shall automatically renew for additional one (1) year terms unless either party has provided at least sixty (60) days’ prior written notice to the other of its intent to not renew prior to the end of the initial term or the then current renewal term. In addition, with respect to Ministry Mobilizer, either party may terminate these Terms immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation. 			
- Effect of Termination. Upon the termination of these Terms: (a) Provider shall have no obligation to perform any Services hereunder after the effective date of such termination; (b) you shall pay to Provider any fees or other amounts payable for the Services performed hereunder prior to the effective date of termination; and (c) all rights and licenses granted to you with respect to the Platform will immediately terminate, and you shall immediately discontinue use of the Platform. You understand and agree that in the event you request the return of any data or Consumer PII that you have provided to us or the Platform we have the right to charge you service fees and any applicable costs and expenses as a condition of returning any such data or Consumer PII. 		
	 - DATA PRIVACY AND SECURITY. You agree to keep and maintain Consumer Reports and any Consumer PII secure and confidential. “Consumer PII” means any personal information you provide to the Platform to conduct a background check on a consumer who is the subject of a Consumer Report. You represent and warrant that you maintain a comprehensive data security policy, plan, system and facility that implements all necessary and reasonable precautions for the protection of Consumer Reports and Consumer PII, including without limitation, storing the Consumer Reports and PII in a secure environment, transmitting the Consumer Reports and any Consumer PII in a secure manner, destroying paper copies of Consumer Reports when no longer needed, designating a limited number of key personnel who have a need to know about the Consumer PII and Consumer Reports, and maintaining strict procedures to ensure that your personnel are not able to use the Platform or Consumer Reports for improper, illegal or unauthorized purposes. You are solely responsible for the activities of any person accessing the Platform using any credentials issued to you. You shall promptly notify us of any security breach involving unauthorized access to any Consumer PII or Consumer Report provided to you by us pursuant to these Terms.
We shall only process Consumer PII in connection with our obligations and responsibilities under these Terms and both you and we agree to comply with federal, state, and local laws, rules, and regulations related to privacy and data protection that are applicable to the performance of the Services (“Applicable Data Privacy Laws”). We will notify you if we receive a request to exercise an individual’s privacy rights under Applicable Data Privacy Laws. We will not respond directly to an individual rights request unless explicitly instructed in writing by you to respond, provided such response can be reasonably carried out without undue burden on us. Upon written request, we shall delete or return all Consumer PII at the end of the Term, unless we have a valid legal obligation to retain such Consumer PII. We will maintain the confidentiality and security of any Consumer PII that we receive and any archival Consumer Reports that we maintain in accordance with our own data security and confidentiality policies and practices. We will notify you without undue delay when we become aware of any unauthorized access to, misappropriation of, loss of, damage to, or other compromise of the security, integrity, availability, or confidentiality of personal information (a “Security Incident”). We will take steps to address the Security Incident and mitigate potential harm that may result from the Security Incident and will provide timely information to you about the Security Incident as necessary for you to comply with Applicable Data Privacy Laws.
We may review your records that are reasonably required to demonstrate compliance with these Terms at any time upon reasonable prior notice during the Term and for 5 years thereafter. Your breach of this Agreement or violation of any applicable law, regulation or rule discovered by us may result in immediate suspension and/or termination of your account, legal action and referral to regulatory agencies. 	 - CONFIDENTIALITY. By virtue of this Agreement, each party may obtain, learn, develop or have access to non-public information of the other party (“Confidential Information”). “Confidential Information” shall include all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked “confidential” or should be known to the Receiving Party to be confidential given the circumstances of its disclosure, whether communicated orally or in writing, and whether intangible or intangible form. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature against unauthorized use, disclosure or publication. The confidentiality obligations set forth in this Section do not apply to information that can be shown by the Receiving Party’s written records which: (i) was or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party that, insofar as is known to the Receiving Party, did not acquire the information from the Disclosing Party under an obligation of confident; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. 	
- DISCLAIMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE PLATFORM WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY. 	
- COMPLIANCE. You represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content. 	
- CONSULTATION WITH LEGAL COUNSEL. You understand and agree that we do not provide any legal advice regarding your compliance with the various federal, state, and international laws which might apply. YOU ARE RESPONSIBLE FOR CONSULTATION WITH YOUR OWN LEGAL COUNSEL REGARDING THE PURCHASE AND USE OF CONSUMER REPORTS. You are solely responsible for the content of Disclosures, Authorizations, Pre-Adverse and Adverse letters, and the Summary of Rights, even when obtaining such sample documents from Provider for your own use. You agree not to rely on Provider for legal advice and acknowledge that you are solely responsible for your legal obligations and decisions and will consult with your own legal counsel at your own discretion regarding all legal matters, including but not limited to your obligations under the FCRA, applicable privacy laws and applicable state laws. 	
- INDEMNIFICATION; LIMITATION OF LIABILITY You agree to indemnify and hold us, our affiliates, and our and their respective directors, officers, employees and agents harmless against any cause of action, loss, liability, damage, cost or expense, including, without limitation, attorney’s fees and costs, arising out of or relating to: (A) your breach of any covenants, representatives or warranties of these Terms; (B) your violation of any applicable law or regulation, including without limitation, the FCRA; (C) for any misuse, abuse, or unlawful procurement of a Consumer Report by your agents or employees; and (D) the willful or malicious conduct by you or your employees. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY AND DAMAGES ARISING OT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. 	 - EQUITABLE REMEDIES. Nothing herein shall prohibit Provider from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Provider from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Provider’ Intellectual Property Rights. 	
- WAIVER. No failure or delay by Provider in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. 	
- CONTACT US. You may contact Provider by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us. 	
- SEVERABILITY. If a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect. 	
- NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein, there are no third-party beneficiaries to these Terms. 	
- SECTION TITLES. Section titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
	 - GOVERNING LAW AND VENUE. These Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. All such disputes will be brought and decided in a court of law in the State of Tennessee.
	 - ASSIGNMENT. You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Provider. Any attempted assignment in violation hereof shall be void and of no force or effect. Provider may assign its rights and delegate its duties hereunder at any time without your consent.
	 - ENTIRE AGREEMENT; MODIFICATION. These Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Provider reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
Effective June 27th 2023 to June 27th 2023
DownloadSummary of changes
Table of Contents
- Summary of Your Rights Under the Fair Credit Reporting Act (16 CFR Part 601)
- Notice to Users of Consumer Reports (16 CFR Part 601)
- YOUR ACCOUNT.
- Credentialing. You shall be subject to our customer credentialling process prior to gaining access to our Services. You agree to provide all documents that we may request in order for us to verify and confirm your identity, your status as a legitimate business or other organization, and any applicable licensing requirements. YOU UNDERSTAND THAT WE HAVE THE RIGHT TO REJECT OR DENY SERVICE TO ANY CUSTOMER WHO DOES NOT MEET OUR CUSTOMER CREDENTIALING REQUIREMENTS.
- Account Information. To use our Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. We may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from us and our partners at the email address and/or phone number you provide. You agree to provide us with your current, valid contact information and to update your email address and phone number any time this information changes. In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify us if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Provider will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials. Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Right to Use Platform; Restrictions on Use. Subject to your compliance with these Terms, Provider hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Platform solely as expressly authorized by Provider under these Terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Platform and maintain an account may provide access to the Services to Authorized Users. “Platform” means the background checking platform offered by Provider or one of its licensors that allows you to submit orders (“Orders”) and access the Services offered by Provider. With respect to the Platform you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to the Platform in whole or in part, to any third party, or include such Platform in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit the Platform, including any part, feature, function, or user interface thereof except as expressly permitted by Provider under these Terms;
- interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- access the Platform in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode the Platform, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Platform, in whole or in part;
- access or use the Platform in order to benchmark or compare the performance of the Platform, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform;
- violate any applicable law or regulation in your use of the Platform; or
- use the Platform in any manner not permitted by these Terms.
- Cancellations and Refunds. All Orders must be carefully reviewed before submission. All submitted Orders are final and non-refundable. You will incur the cost of all Orders upon submission, including any Order that is later cancelled.
- Responsibility for Accurate Search Criteria. –You acknowledge and agree that it is your responsibility to provide accurate search criteria with respect to each consumer who is the subject of an Order. Further, you understand that you must carefully review all search information submitted with each Order and acknowledge that information cannot be changed following an Order submission. If you do need to correct or modify any information regarding the subject of your Order, including without limitation: name, date of birth, social security number, current address (if such change results in a different city or county of residence), such modified Order will be treated as a new search, and you will be charged fees for the original Order and the modified Order.
- USE OF CONSUMER REPORTS.
- Employment Purposes. If the Consumer Reports you obtain from us are used for Employment Purposes: (i) where state and local law mandates, you shall order a Consumer Report only after a conditional offer of employment has been made, and (ii) you shall, in every case prior to obtaining or causing a Consumer Report to be obtained, disclose to each consumer with respect to whom a Consumer Report is ordered, in a clear and conspicuous manner in a document consisting solely of the disclosure, that the Consumer Report is being obtained by You for employment purposes and shall also obtain written authorization from the applicable consumer that authorizes You to obtain a Consumer Report with respect to such consumer.
- EEO Certification. You hereby certify that you shall not use any Consumer Report in violation of any federal or state equal employment opportunity laws or regulations or in violation of any state or local ban-the-box, fair chance hiring, or related laws or regulations.
- New York City Certifications. If you are located in New York City or an applicant with respect to whom a Consumer Report is sought is a New York City resident or worker, you shall: (i) request a Consumer Report that includes criminal history information only after extending a conditional offer of employment to the job applicant, or, in the alternative that the position for which You are requesting a criminal history search is exempt under the Fair Chance Act; and (ii) request a Consumer Report that includes consumer credit history about an applicant or employee only if one of the permissible exemptions under Stop Credit Discrimination in Employment Act (N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015)) applies.
- California Certifications. If you are located in California or an applicant with respect to whom a Consumer Report is sought is a California resident or worker, you hereby certify that you shall, in accordance with the Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq. (ICRAA), and the Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq. (CCRAA):
- Request and use reports solely for a permissible purpose(s) identified under the ICRAA and the CCRAA
- When, at any time, reports are sought for employment purposes, unless a legal exception otherwise applies, provide a clear and conspicuous disclosure in writing to the consumer, in a document that consists solely of the disclosure (1) that a Consumer Report may be obtained; (2) the permissible purpose of the Consumer Report; (3) that information on the individual’s character, general reputation, personal characteristics and mode of living may be disclosed; (4) the name, address, telephone number, and website of Provider; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22; and (6) notify the individual of the Internet website address of Provider where the consumer may find information about Provider’s privacy practices;
- Provide the individual a means by which the individual may indicate on a written form by means of a box to check that the consumer wishes to receive a copy of any report that is prepared; and,
- If taking any adverse action, you shall comply with California Civil Code Sections 1785.20 and 1786.40, including, but not limited to, advising the consumer against whom the adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Consumer Report, informing the consumer in writing of your name, address and telephone number, and providing the consumer a written notice of his rights under the ICRAA and the CCRAA.
- Retention. You shall maintain copies of all written authorizations from consumers for a minimum of six (6) years from the date of request and shall make such written authorizations available to Provider upon request.
- Pre-Adverse Action. Prior to taking any adverse action that is based in whole or in part on a Consumer Report you shall adhere to the conditions imposed by the FCRA (15 U.S.C §1681b(b)(3)) which include: providing the consumer a copy of the applicable Consumer Report along with a letter that contains the name, address and toll-free number of provider, enclosing a copy of Summary of Your Rights Under the Fair Credit Reporting Act. Further, you shall allow the consumer a reasonable amount of time to respond to the pre-adverse notification before the adverse action is taken, taking into account weekends and holidays.
- Adverse Action Requirements. If you take an adverse action that is based in whole or in part on a Consumer Report you shall comply with the requirements of the FCRA (15 U.S.C. §1681m), including providing oral, written or electronic notice to the consumer of the adverse action; providing the name, address and toll-free telephone number of Provider to the consumer; informing the consumer that Provider did not make the decision with respect to the adverse action and is therefore unable to provide the consumer with the specific reasons why the adverse action was taken; and notifying the consumer of their right to obtain a free copy of the Consumer Report within sixty (60) days and to dispute with Provider the accuracy or completeness of any information in the Consumer Report.
- Authorizations. You shall ensure that Consumer Reports are requested only by one of Your authorized representatives and shall further ensure that authorized representatives do not obtain Consumer Reports on themselves or any other person except in furtherance of a permissible purpose under the FCRA.
- Nondisclosure of Report. You shall hold all Consumer Reports obtained hereunder in strict confidence and shall not disclose any Consumer Report to any third party unless disclosure to a third party is in furtherance of a permissible under the FCRA. You shall use the Consumer Report one time only and shall only use the Consumer Report for a permissible purpose under the FCRA. You shall not sell, sublicense, lease, deliver, display or otherwise distribute any Consumer Report provided hereunder except as may be permitted under these Terms.
- Disposal of Reports. You may retain copies of Consumer Reports for as long as permitted under your document retention policies. You shall use reasonable best efforts to prevent unauthorized access to the Consumer Reports. Any data or Consumer Report that must be destroyed shall be destroyed in a secure manner to make it inaccessible, unreadable and/or unrecoverable, including without limitation by: burning, pulverizing or shredding, destroying or erasing electronic files beyond use, or hiring an authorized document destruction firm.
- Compliance Assessment. Upon reasonable notice, you agree to provide to us Consumer Report-related documents maintained as to consumers upon whom Consumer Reports were obtained, including copies of executed disclosures and authorizations, any pre-adverse and adverse action correspondence, and reasonable evidence of your compliance with applicable laws regarding consumer data privacy in order to enable us to satisfy our obligations under federal and state laws and regulations and our vendor agreements.
- Notification. You shall immediately notify Provider in writing of any data security breach affecting or reasonably likely to have affected any Consumer Report obtained hereunder.
- SERVICE-SPECIFIC TERMS AND CERTIFICATIONS.
- National Criminal Database. You acknowledge that any information obtained from our National Criminal Database is comprised of information obtained from various government agencies throughout the country. The content of the National Criminal Database is subject to change with or without notice. A complete list of the agencies providing information to the National Criminal Database is available upon your request. The National Criminal Database search is considered a pointer search. We will not report any information solely from this product without first verifying such information for accuracy through records obtained at the court level, as defined by Section 613 of the FCRA. We make no express or implied warranty as to the accuracy or the completeness of the information from the National Criminal Database.
- Motor Vehicle Records. You hereby certify that you will only order Motor Vehicle Records or Driving Records (in either case, “MVRs”) in compliance with applicable state and federal laws, including but not limited to the Drivers Privacy Protection Act (18 U.S.C. §2721 et seq.). You acknowledge and agree that we may conduct audits of your compliance with the terms of this Section 3.B. in our sole discretion and we may terminate the MVR services in the event we determine you are not compliant. You further certify and agree as follows:
- you will not allow unauthorized access to MVRs;
- you shall indemnify any state and its agent(s) from any wrongful use, sale, or release of MVRs;
- your intended use of MVRs is for a permissible purpose under the FCRA and the DPPA;
- no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to us in the form of the consumer’s signed release authorization form;
- you shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means;
- you shall immediately notify us if you discover that MVRs provided pursuant to this Agreement have been disclosed or used in violation of this agreement or any applicable state or federal law;
- you shall not use any information provided by any state to create or update a file that would allow you to develop your own source of driving history information; and
- you shall provide an Affidavit of Intended Use and Statement of Confidentiality upon our request, and you agree to execute all individual state-required documents for the receipt and use of MVRs.
- Investigative Consumer Reports. If you request an Investigative Consumer Report (which includes character references and extended employment verification), you hereby certify as follows:
- you have implemented safeguards to protect the integrity of your screening programs.
- you shall submit a release signed by the subject of the Consumer Report that contains the following:
- A clear disclosure to the consumer that an Investigative Consumer Report – including information as to the consumer’s character, general reputation, personal characteristics and mode of living – may be made;
- A statement informing the consumer of their right to request from you the nature and scope of any Investigative Consumer Report; and
- A statement informing the consumer of their right to request a Summary of Consumer Rights in the form approved by the Consumer Financial Protection Bureau. As defined by Section 603(e) of the FCRA, an “Investigative Consumer Report” is a Consumer Report for which information on a consumer’s character, general reputation, personal characteristics, or mode of living, is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information.
- International Searches. You acknowledge that we may engage third party contractors to perform international background screening. Because of the differences in foreign laws, access restrictions, language, and recordkeeping capabilities, we cannot ensure or guarantee the accuracy of international background screening services. You understand and agree that you are fully responsible for complying with all foreign laws and regulations applicable to your use of international search results.
- Employment Eligibility; I-9 Services. If you have requested that Provider serve as your E-Verify Employer Agent for purposes of your participation in the Department of Homeland Security’s (“DHS”) E-Verify program for purposes of employment eligibility determinations, you hereby certify and agree to the following:
- you shall be responsible for providing the fully executed DHS-required Memorandum of Understanding (“MOU”) to Provider, retaining copies of all applicable documents and complying with all aspects of the MOU;
- you shall comply with the requirements of the E-Verify program, including the E-Verify User Manual and the MOU, and the posting of the following E-Verify Posters: “E-Verify Participation Poster” and “Right to Work Poster”;
- you will not use the Employment Eligibility Program for pre- employment inquiries and acknowledge that such use is strictly prohibited;
- you will provide us with the names, titles, addresses, telephone numbers, and email addresses for your representative(s) serving as point(s) of contact for program verification matters;
- you will not modify or alter in any way any Further Action Notices (including Tentative Non-confirmation notices) provided to you by Provider in order for you to contact an applicant and determine if the applicant wishes to contest the findings;
- you shall not to take “adverse action” against an applicant based upon the employment eligibility status of the verification and shall give the applicant the option of contesting the findings by checking the appropriate status directly on the non-confirmation notice; and
- you shall not engage in discriminatory practices against anyone and shall apply verification procedures to all new hires (not selectively).
- Consent Based Social Security Number Verification Service. This Section shall only apply if you elect to use our Consent Based Social Security Number Verification Service (“SSNVS”). You hereby agree to the following:
- you will obtain from the consumer and provide to us a release signed by the consumer prior to submitting a verification request. You will further provide all information requested in order for us to provide the SSNVS, including without limitation, the consumer’s first and last names and social security number.
- you accept all liability for all decisions based upon the SSNVS.
- you acknowledge that the SSNVS does not verify employment eligibility or an employee’s immigration status, and does not interface with the DHS employment eligibility verification system
- Drug Testing. This Section shall only apply if you elect to order drug tests. You understand and agree that any drug tests you order will be performed by third parties who are acting at your direction. We will include the results of any such tests in Consumer Reports. Service fees charged to you shall include Medical Review Officer (“MRO”) services from a MRO we have chosen in our sole discretion, for review of all positive drug tests. The MRO will be responsible for: (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results in accordance with DOT regulations; (v) resolution of correctable flaws on COC forms; (vi) acting as Designated Employee Representative (“DER”) contact if unable to contact the consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated and unacceptable results; (ix) maintenance of drug test reports pursuant to applicable state and federal laws and regulations; and (x) medical review of “medically necessary” substances and protection of the consumer’s privacy rights in accordance with state and federal laws.
- Continuous Monitoring Service. This Section shall only apply if you have elected to use our Continuous Monitoring Service. We will provide criminal record monitoring services to identify criminal activity with respect to consumers who have been selected by you after they have been onboarded by you as an employee, volunteer or independent contractor. You certify that you have obtained the appropriate consent(s) from the consumer, as required by the FCRA and state law. No later than 48 hours after a consumer is no longer engaged by you as an employee, volunteer or independent contractor, you shall notify us so that the Continuous Monitoring Service may be discontinued with respect to such consumer. You certify that all consumers who are subject to Continuous Monitoring Service have been made aware of it through your policies and procedures. You shall be billed on a monthly basis for the Continuous Monitoring Service and shall be charged per consumer.
- Adjudication Services. This Section shall only apply if you have elected to use our Adjudication/Risk Assessment Services. You are solely responsible for selecting the selection criteria (the “Selection Criteria”) that a potential applicant or employee must meet in order to be hired, trained or promoted, as applicable, and for any decisions taken based on the hiring criteria you have selected. You agree to consult with your own legal counsel to determine whether the Selection Criteria complies with applicable laws and regulations. You acknowledge and agree that we shall not be liable for any application of your Selection Criteria, that the application of your Selection Criteria is purely clerical in nature and shall be performed by us on your behalf. You acknowledge that we are not authorized to make any decision regarding hiring, training or promotion on your behalf. You shall review the content of the Consumer Reports in the manner and method prescribed by applicable law, including but not limited to, conducting individualized assessments and making final decisions on all Consumer Reports. You shall ensure that your use of the Selection Criteria in evaluating the Consumer Report and in your final decision with respect to an applicant or employee is in compliance with all applicable laws and regulations. Notwithstanding the foregoing, you shall not provide to us, and we shall not be obligated to follow, any “no hire” policy for a set level of offense such as a “no felony rule” unless you are required by law or regulation to make such criteria a condition of employment. We reserve the right to refuse to apply any Selection Criteria in our sole and complete discretion. You acknowledge that in performing the Adjudication Services we rely solely upon third party information, including without limitation educational institutions, past employers, and public records. We have not and will not conduct an independent investigation to determine the accuracy of the information furnished to us. We therefore cannot ensure or guarantee the accuracy of such information.
You agree to indemnify and hold harmless Provider and its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, damages, expenses (including attorneys’ fees) and costs arising or resulting from any claim that the Selection Criteria or the use thereof does not comply with any law or regulation. Provider shall have the right, in its sole discretion, to defend any such claim. - FCRA Adverse Action Notification Service.This Section shall only apply if you have elected to use our Adverse Action Notification Service. At your direction and to help you comply with your obligations under the federal FCRA, we will provide pre-adverse and adverse action notices to an applicant in connection with any pre-adverse or adverse action on an applicant-by-applicant basis and only after you have received a Consumer Report. You shall be deemed to have approved the content of any notice. You shall determine the timing and delivery of any notices. You understand that any decision regarding taking any pre-adverse or adverse action with respect to an applicant is solely your responsibility. You shall provide to us an email address for the impacted consumer to allow us to send any notices electronically. This service does not cover your compliance with any applicable state or local laws that may require additional adverse action responsibilities.
- Credit Reports. This Section shall only apply if you elect to order credit reports.You understand and agree to be subject to additional credentialing and application procedures as required by the credit bureaus furnishing the credit report product. You certify that you will promptly notify us of any change in your location, structure, ownership, or control, including but not limited to the addition of any branch(es) that will be requesting and/or accessing credit reports. Credit bureaus issuing credit reports may prohibit the following persons, entities and/or businesses from obtaining credit reports: adult entertainment service of any kind; asset location service; attorney or law firm engaged in the practice of law (unless engaged in collection or using the report in connection with a consumer bankruptcy pursuant to the written authorization of the consumer); bail bondsman (unless licensed by the state in which they are operating); child location service (i.e. a company that locates missing children); credit counseling (except not-for-profit credit counselors); credit repair clinic; dating service; financial counseling (except a registered securities broker dealer or a certified financial planner); foreign company or agency of a foreign government; genealogical or heir research firm; law enforcement agency; massage service; news agency or journalist; pawn shop; private detective, detective agency or investigative company; repossession company; subscriptions (magazines, book clubs, record clubs, etc.); tattoo service; time shares - company seeking information in connection with time shares (exception: financers of time shares); weapons dealer, seller or distributor.
- Equifax’s The Work Number®. If you have purchased The Work Number® information, you agree that you will hold Equifax harmless in the purchase and use of the information. You further agree that: (a) the information obtained will not be forwarded or shared with any third party; (b) the information will only be obtained for a permissible purpose under the FCRA; (c) you will comply with all applicable state laws regarding consumer credit or consumer identity protection; and (d) you will provide notice of consumer rights as required for Employment Purposes or identity theft as follows: www.consumerfinance.gov/learnmore/.
- THIRD PARTY APPLICATIONS. If Provider provides any integration or interfaces between the Platform and any third party products and/or services with functionality that interoperates with the Platform (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Provider to integrate with such Third Party-Applications. Provider and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Provider cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with the Platform in a manner acceptable to Provider. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use the Platform. You will indemnify Provider and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Provider or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Consumer PII (defined below)).
- FEES AND PAYMENT. We will invoice you with respect to any Order(s) on a monthly basis. You shall pay all invoices within thirty (30) days of the date of the invoice. Payment may be made by credit card, check, e-check or ACH/wire. Past due amounts shall accrue simple interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less, from the date such payment was due until the date paid. If any invoice to Customer is not paid within thirty (30) days of its due date, in our sole discretion, we may temporarily suspend your account until payment is received. If collection efforts are required, you shall pay all costs of collection including attorneys’ fees. Customer may only dispute charges appearing upon an invoice if notice of such dispute is provided to us in writing within thirty (30) days from the date of the invoice. Any check or other payment returned due to insufficient funds or any other reason is subject to a $25.00 fee.
Governmental or other third-party data vendor pass-through fees are subject to change without notice. We reserve the right to change the fees charged for our Services upon thirty (30) days’ prior written notice to you. Applicable sales or other taxes will be added to all fees.
If you have subscribed to our Ministry Mobilizer service, the following additional terms shall apply:- We may charge subscription fees on a monthly or an annual basis depending on which subscription you have selected.
- You must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Fees are non-cancellable and non-refundable.
- We may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30-day notice period. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes will go into effect for your next monthly term after the 30-day notice period. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using Ministry Mobilizer prior to the commencement of the renewal subscription period for which the price change applies.
- If you are paying via credit card or ACH, you authorize us to charge the applicable subscription fees at the then applicable rate plus any applicable taxes for the subscription to your credit card or account on file at the expiration of the term. Your subscription may only be cancelled by submitting your cancellation request here. We may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, if we are unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services.
- If you are not paying for Ministry Mobilizer via credit card or ACH, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. In addition, without limiting our other rights, if any fees are owed and not paid by you when due, we may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services. We may offer a free trial of Ministry Mobilizer. When a free-trial period ends, your paid subscription begins, and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial.
- If you cancel your subscription for any reason, or if the free-trial period ends and you cancel your subscription, unless required by law, you will not be able to access or retrieve any data you added, uploaded, or created during the time you subscribed to Ministry Mobilizer or during the free trial period.
- INTELLECTUAL PROPERTY OF PROVIDER. You recognize that Provider and its third-party licensors own all rights, title, and interests in and to the Platform (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Platform), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Provider, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Provider or its third-party licensors, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Provider does not grant you any rights to the Platform. . You do not acquire any ownership interest in the Platform under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Provider or its licensors or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- TERM AND TERMINATION
- Term and Termination. Except with respect to Ministry Mobilizer, these Terms shall commence on the date these Terms are accepted by you and shall continue unless terminated by either of us as follows: (i) upon sixty (60) days’ prior written notice by one of us to the other, (ii) immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation. Notwithstanding the foregoing, with respect to Ministry Mobilizer, the subscription term shall be a period of one (1) year and shall automatically renew for additional one (1) year terms unless either party has provided at least sixty (60) days’ prior written notice to the other of its intent to not renew prior to the end of the initial term or the then current renewal term. In addition, with respect to Ministry Mobilizer, either party may terminate these Terms immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation.
- Effect of Termination. Upon the termination of these Terms: (a) Provider shall have no obligation to perform any Services hereunder after the effective date of such termination; (b) you shall pay to Provider any fees or other amounts payable for the Services performed hereunder prior to the effective date of termination; and (c) all rights and licenses granted to you with respect to the Platform will immediately terminate, and you shall immediately discontinue use of the Platform. You understand and agree that in the event you request the return of any data or Consumer PII that you have provided to us or the Platform we have the right to charge you service fees and any applicable costs and expenses as a condition of returning any such data or Consumer PII.
- DATA PRIVACY AND SECURITY. You agree to keep and maintain Consumer Reports and any Consumer PII secure and confidential. “Consumer PII” means any personal information you provide to the Platform to conduct a background check on a consumer who is the subject of a Consumer Report. You represent and warrant that you maintain a comprehensive data security policy, plan, system and facility that implements all necessary and reasonable precautions for the protection of Consumer Reports and Consumer PII, including without limitation, storing the Consumer Reports and PII in a secure environment, transmitting the Consumer Reports and any Consumer PII in a secure manner, destroying paper copies of Consumer Reports when no longer needed, designating a limited number of key personnel who have a need to know about the Consumer PII and Consumer Reports, and maintaining strict procedures to ensure that your personnel are not able to use the Platform or Consumer Reports for improper, illegal or unauthorized purposes. You are solely responsible for the activities of any person accessing the Platform using any credentials issued to you. You shall promptly notify us of any security breach involving unauthorized access to any Consumer PII or Consumer Report provided to you by us pursuant to these Terms.
We shall only process Consumer PII in connection with our obligations and responsibilities under these Terms and both you and we agree to comply with federal, state, and local laws, rules, and regulations related to privacy and data protection that are applicable to the performance of the Services (“Applicable Data Privacy Laws”). We will notify you if we receive a request to exercise an individual’s privacy rights under Applicable Data Privacy Laws. We will not respond directly to an individual rights request unless explicitly instructed in writing by you to respond, provided such response can be reasonably carried out without undue burden on us. Upon written request, we shall delete or return all Consumer PII at the end of the Term, unless we have a valid legal obligation to retain such Consumer PII. We will maintain the confidentiality and security of any Consumer PII that we receive and any archival Consumer Reports that we maintain in accordance with our own data security and confidentiality policies and practices. We will notify you without undue delay when we become aware of any unauthorized access to, misappropriation of, loss of, damage to, or other compromise of the security, integrity, availability, or confidentiality of personal information (a “Security Incident”). We will take steps to address the Security Incident and mitigate potential harm that may result from the Security Incident and will provide timely information to you about the Security Incident as necessary for you to comply with Applicable Data Privacy Laws.
We may review your records that are reasonably required to demonstrate compliance with these Terms at any time upon reasonable prior notice during the Term and for 5 years thereafter. Your breach of this Agreement or violation of any applicable law, regulation or rule discovered by us may result in immediate suspension and/or termination of your account, legal action and referral to regulatory agencies. - CONFIDENTIALITY. By virtue of this Agreement, each party may obtain, learn, develop or have access to non-public information of the other party (“Confidential Information”). “Confidential Information” shall include all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked “confidential” or should be known to the Receiving Party to be confidential given the circumstances of its disclosure, whether communicated orally or in writing, and whether intangible or intangible form. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature against unauthorized use, disclosure or publication. The confidentiality obligations set forth in this Section do not apply to information that can be shown by the Receiving Party’s written records which: (i) was or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party that, insofar as is known to the Receiving Party, did not acquire the information from the Disclosing Party under an obligation of confident; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
- DISCLAIMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE PLATFORM WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.
- COMPLIANCE. You represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- CONSULTATION WITH LEGAL COUNSEL. You understand and agree that we do not provide any legal advice regarding your compliance with the various federal, state, and international laws which might apply. YOU ARE RESPONSIBLE FOR CONSULTATION WITH YOUR OWN LEGAL COUNSEL REGARDING THE PURCHASE AND USE OF CONSUMER REPORTS. You are solely responsible for the content of Disclosures, Authorizations, Pre-Adverse and Adverse letters, and the Summary of Rights, even when obtaining such sample documents from Provider for your own use. You agree not to rely on Provider for legal advice and acknowledge that you are solely responsible for your legal obligations and decisions and will consult with your own legal counsel at your own discretion regarding all legal matters, including but not limited to your obligations under the FCRA, applicable privacy laws and applicable state laws.
- INDEMNIFICATION; LIMITATION OF LIABILITY You agree to indemnify and hold us, our affiliates, and our and their respective directors, officers, employees and agents harmless against any cause of action, loss, liability, damage, cost or expense, including, without limitation, attorney’s fees and costs, arising out of or relating to: (A) your breach of any covenants, representatives or warranties of these Terms; (B) your violation of any applicable law or regulation, including without limitation, the FCRA; (C) for any misuse, abuse, or unlawful procurement of a Consumer Report by your agents or employees; and (D) the willful or malicious conduct by you or your employees. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY AND DAMAGES ARISING OT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. - EQUITABLE REMEDIES. Nothing herein shall prohibit Provider from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Provider from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Provider’ Intellectual Property Rights.
- WAIVER. No failure or delay by Provider in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- CONTACT US. You may contact Provider by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SEVERABILITY. If a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- SECTION TITLES. Section titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- GOVERNING LAW AND VENUE. These Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- ASSIGNMENT. You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Provider. Any attempted assignment in violation hereof shall be void and of no force or effect. Provider may assign its rights and delegate its duties hereunder at any time without your consent.
- ENTIRE AGREEMENT; MODIFICATION. These Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Provider reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
Effective June 27th 2023 to June 27th 2023
DownloadTable of Contents
- Summary of Your Rights Under the Fair Credit Reporting Act (16 CFR Part 601)
- Notice to Users of Consumer Reports (16 CFR Part 601)
- YOUR ACCOUNT.
- Credentialing. You shall be subject to our customer credentialling process prior to gaining access to our Services. You agree to provide all documents that we may request in order for us to verify and confirm your identity, your status as a legitimate business or other organization, and any applicable licensing requirements. YOU UNDERSTAND THAT WE HAVE THE RIGHT TO REJECT OR DENY SERVICE TO ANY CUSTOMER WHO DOES NOT MEET OUR CUSTOMER CREDENTIALING REQUIREMENTS.
- Account Information. To use our Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. We may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from us and our partners at the email address and/or phone number you provide. You agree to provide us with your current, valid contact information and to update your email address and phone number any time this information changes. In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify us if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Provider will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials. Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Right to Use Platform; Restrictions on Use. Subject to your compliance with these Terms, Provider hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Platform solely as expressly authorized by Provider under these Terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Platform and maintain an account may provide access to the Services to Authorized Users. “Platform” means the background checking platform offered by Provider or one of its licensors that allows you to submit orders (“Orders”) and access the Services offered by Provider. With respect to the Platform you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to the Platform in whole or in part, to any third party, or include such Platform in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit the Platform, including any part, feature, function, or user interface thereof except as expressly permitted by Provider under these Terms;
- interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- access the Platform in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode the Platform, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Platform, in whole or in part;
- access or use the Platform in order to benchmark or compare the performance of the Platform, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform;
- violate any applicable law or regulation in your use of the Platform; or
- use the Platform in any manner not permitted by these Terms.
- Cancellations and Refunds. All Orders must be carefully reviewed before submission. All submitted Orders are final and non-refundable. You will incur the cost of all Orders upon submission, including any Order that is later cancelled.
- Responsibility for Accurate Search Criteria. –You acknowledge and agree that it is your responsibility to provide accurate search criteria with respect to each consumer who is the subject of an Order. Further, you understand that you must carefully review all search information submitted with each Order and acknowledge that information cannot be changed following an Order submission. If you do need to correct or modify any information regarding the subject of your Order, including without limitation: name, date of birth, social security number, current address (if such change results in a different city or county of residence), such modified Order will be treated as a new search, and you will be charged fees for the original Order and the modified Order.
- USE OF CONSUMER REPORTS.
- Employment Purposes. If the Consumer Reports you obtain from us are used for Employment Purposes: (i) where state and local law mandates, you shall order a Consumer Report only after a conditional offer of employment has been made, and (ii) you shall, in every case prior to obtaining or causing a Consumer Report to be obtained, disclose to each consumer with respect to whom a Consumer Report is ordered, in a clear and conspicuous manner in a document consisting solely of the disclosure, that the Consumer Report is being obtained by You for employment purposes and shall also obtain written authorization from the applicable consumer that authorizes You to obtain a Consumer Report with respect to such consumer.
- EEO Certification. You hereby certify that you shall not use any Consumer Report in violation of any federal or state equal employment opportunity laws or regulations or in violation of any state or local ban-the-box, fair chance hiring, or related laws or regulations.
- New York City Certifications. If you are located in New York City or an applicant with respect to whom a Consumer Report is sought is a New York City resident or worker, you shall: (i) request a Consumer Report that includes criminal history information only after extending a conditional offer of employment to the job applicant, or, in the alternative that the position for which You are requesting a criminal history search is exempt under the Fair Chance Act; and (ii) request a Consumer Report that includes consumer credit history about an applicant or employee only if one of the permissible exemptions under Stop Credit Discrimination in Employment Act (N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015)) applies.
- California Certifications. If you are located in California or an applicant with respect to whom a Consumer Report is sought is a California resident or worker, you hereby certify that you shall, in accordance with the Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq. (ICRAA), and the Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq. (CCRAA):
- Request and use reports solely for a permissible purpose(s) identified under the ICRAA and the CCRAA
- When, at any time, reports are sought for employment purposes, unless a legal exception otherwise applies, provide a clear and conspicuous disclosure in writing to the consumer, in a document that consists solely of the disclosure (1) that a Consumer Report may be obtained; (2) the permissible purpose of the Consumer Report; (3) that information on the individual’s character, general reputation, personal characteristics and mode of living may be disclosed; (4) the name, address, telephone number, and website of Provider; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22; and (6) notify the individual of the Internet website address of Provider where the consumer may find information about Provider’s privacy practices;
- Provide the individual a means by which the individual may indicate on a written form by means of a box to check that the consumer wishes to receive a copy of any report that is prepared; and,
- If taking any adverse action, you shall comply with California Civil Code Sections 1785.20 and 1786.40, including, but not limited to, advising the consumer against whom the adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Consumer Report, informing the consumer in writing of your name, address and telephone number, and providing the consumer a written notice of his rights under the ICRAA and the CCRAA.
- Retention. You shall maintain copies of all written authorizations from consumers for a minimum of six (6) years from the date of request and shall make such written authorizations available to Provider upon request.
- Pre-Adverse Action. Prior to taking any adverse action that is based in whole or in part on a Consumer Report you shall adhere to the conditions imposed by the FCRA (15 U.S.C §1681b(b)(3)) which include: providing the consumer a copy of the applicable Consumer Report along with a letter that contains the name, address and toll-free number of provider, enclosing a copy of Summary of Your Rights Under the Fair Credit Reporting Act. Further, you shall allow the consumer a reasonable amount of time to respond to the pre-adverse notification before the adverse action is taken, taking into account weekends and holidays.
- Adverse Action Requirements. If you take an adverse action that is based in whole or in part on a Consumer Report you shall comply with the requirements of the FCRA (15 U.S.C. §1681m), including providing oral, written or electronic notice to the consumer of the adverse action; providing the name, address and toll-free telephone number of Provider to the consumer; informing the consumer that Provider did not make the decision with respect to the adverse action and is therefore unable to provide the consumer with the specific reasons why the adverse action was taken; and notifying the consumer of their right to obtain a free copy of the Consumer Report within sixty (60) days and to dispute with Provider the accuracy or completeness of any information in the Consumer Report.
- Authorizations. You shall ensure that Consumer Reports are requested only by one of Your authorized representatives and shall further ensure that authorized representatives do not obtain Consumer Reports on themselves or any other person except in furtherance of a permissible purpose under the FCRA.
- Nondisclosure of Report. You shall hold all Consumer Reports obtained hereunder in strict confidence and shall not disclose any Consumer Report to any third party unless disclosure to a third party is in furtherance of a permissible under the FCRA. You shall use the Consumer Report one time only and shall only use the Consumer Report for a permissible purpose under the FCRA. You shall not sell, sublicense, lease, deliver, display or otherwise distribute any Consumer Report provided hereunder except as may be permitted under these Terms.
- Disposal of Reports. You may retain copies of Consumer Reports for as long as permitted under your document retention policies. You shall use reasonable best efforts to prevent unauthorized access to the Consumer Reports. Any data or Consumer Report that must be destroyed shall be destroyed in a secure manner to make it inaccessible, unreadable and/or unrecoverable, including without limitation by: burning, pulverizing or shredding, destroying or erasing electronic files beyond use, or hiring an authorized document destruction firm.
- Compliance Assessment. Upon reasonable notice, you agree to provide to us Consumer Report-related documents maintained as to consumers upon whom Consumer Reports were obtained, including copies of executed disclosures and authorizations, any pre-adverse and adverse action correspondence, and reasonable evidence of your compliance with applicable laws regarding consumer data privacy in order to enable us to satisfy our obligations under federal and state laws and regulations and our vendor agreements.
- Notification. You shall immediately notify Provider in writing of any data security breach affecting or reasonably likely to have affected any Consumer Report obtained hereunder.
- SERVICE-SPECIFIC TERMS AND CERTIFICATIONS.
- National Criminal Database. You acknowledge that any information obtained from our National Criminal Database is comprised of information obtained from various government agencies throughout the country. The content of the National Criminal Database is subject to change with or without notice. A complete list of the agencies providing information to the National Criminal Database is available upon your request. The National Criminal Database search is considered a pointer search. We will not report any information solely from this product without first verifying such information for accuracy through records obtained at the court level, as defined by Section 613 of the FCRA. We make no express or implied warranty as to the accuracy or the completeness of the information from the National Criminal Database.
- Motor Vehicle Records. You hereby certify that you will only order Motor Vehicle Records or Driving Records (in either case, “MVRs”) in compliance with applicable state and federal laws, including but not limited to the Drivers Privacy Protection Act (18 U.S.C. §2721 et seq.). You acknowledge and agree that we may conduct audits of your compliance with the terms of this Section 3.B. in our sole discretion and we may terminate the MVR services in the event we determine you are not compliant. You further certify and agree as follows:
- you will not allow unauthorized access to MVRs;
- you shall indemnify any state and its agent(s) from any wrongful use, sale, or release of MVRs;
- your intended use of MVRs is for a permissible purpose under the FCRA and the DPPA;
- no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to us in the form of the consumer’s signed release authorization form;
- you shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means;
- you shall immediately notify us if you discover that MVRs provided pursuant to this Agreement have been disclosed or used in violation of this agreement or any applicable state or federal law;
- you shall not use any information provided by any state to create or update a file that would allow you to develop your own source of driving history information; and
- you shall provide an Affidavit of Intended Use and Statement of Confidentiality upon our request, and you agree to execute all individual state-required documents for the receipt and use of MVRs.
- Investigative Consumer Reports. If you request an Investigative Consumer Report (which includes character references and extended employment verification), you hereby certify as follows:
- you have implemented safeguards to protect the integrity of your screening programs.
- you shall submit a release signed by the subject of the Consumer Report that contains the following:
- A clear disclosure to the consumer that an Investigative Consumer Report – including information as to the consumer’s character, general reputation, personal characteristics and mode of living – may be made;
- A statement informing the consumer of their right to request from you the nature and scope of any Investigative Consumer Report; and
- A statement informing the consumer of their right to request a Summary of Consumer Rights in the form approved by the Consumer Financial Protection Bureau. As defined by Section 603(e) of the FCRA, an “Investigative Consumer Report” is a Consumer Report for which information on a consumer’s character, general reputation, personal characteristics, or mode of living, is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information.
- International Searches. You acknowledge that we may engage third party contractors to perform international background screening. Because of the differences in foreign laws, access restrictions, language, and recordkeeping capabilities, we cannot ensure or guarantee the accuracy of international background screening services. You understand and agree that you are fully responsible for complying with all foreign laws and regulations applicable to your use of international search results.
- Employment Eligibility; I-9 Services. If you have requested that Provider serve as your E-Verify Employer Agent for purposes of your participation in the Department of Homeland Security’s (“DHS”) E-Verify program for purposes of employment eligibility determinations, you hereby certify and agree to the following:
- you shall be responsible for providing the fully executed DHS-required Memorandum of Understanding (“MOU”) to Provider, retaining copies of all applicable documents and complying with all aspects of the MOU;
- you shall comply with the requirements of the E-Verify program, including the E-Verify User Manual and the MOU, and the posting of the following E-Verify Posters: “E-Verify Participation Poster” and “Right to Work Poster”;
- you will not use the Employment Eligibility Program for pre- employment inquiries and acknowledge that such use is strictly prohibited;
- you will provide us with the names, titles, addresses, telephone numbers, and email addresses for your representative(s) serving as point(s) of contact for program verification matters;
- you will not modify or alter in any way any Further Action Notices (including Tentative Non-confirmation notices) provided to you by Provider in order for you to contact an applicant and determine if the applicant wishes to contest the findings;
- you shall not to take “adverse action” against an applicant based upon the employment eligibility status of the verification and shall give the applicant the option of contesting the findings by checking the appropriate status directly on the non-confirmation notice; and
- you shall not engage in discriminatory practices against anyone and shall apply verification procedures to all new hires (not selectively).
- Consent Based Social Security Number Verification Service. This Section shall only apply if you elect to use our Consent Based Social Security Number Verification Service (“SSNVS”). You hereby agree to the following:
- you will obtain from the consumer and provide to us a release signed by the consumer prior to submitting a verification request. You will further provide all information requested in order for us to provide the SSNVS, including without limitation, the consumer’s first and last names and social security number.
- you accept all liability for all decisions based upon the SSNVS.
- you acknowledge that the SSNVS does not verify employment eligibility or an employee’s immigration status, and does not interface with the DHS employment eligibility verification system
- Drug Testing. This Section shall only apply if you elect to order drug tests. You understand and agree that any drug tests you order will be performed by third parties who are acting at your direction. We will include the results of any such tests in Consumer Reports. Service fees charged to you shall include Medical Review Officer (“MRO”) services from a MRO we have chosen in our sole discretion, for review of all positive drug tests. The MRO will be responsible for: (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results in accordance with DOT regulations; (v) resolution of correctable flaws on COC forms; (vi) acting as Designated Employee Representative (“DER”) contact if unable to contact the consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated and unacceptable results; (ix) maintenance of drug test reports pursuant to applicable state and federal laws and regulations; and (x) medical review of “medically necessary” substances and protection of the consumer’s privacy rights in accordance with state and federal laws.
- Continuous Monitoring Service. This Section shall only apply if you have elected to use our Continuous Monitoring Service. We will provide criminal record monitoring services to identify criminal activity with respect to consumers who have been selected by you after they have been onboarded by you as an employee, volunteer or independent contractor. You certify that you have obtained the appropriate consent(s) from the consumer, as required by the FCRA and state law. No later than 48 hours after a consumer is no longer engaged by you as an employee, volunteer or independent contractor, you shall notify us so that the Continuous Monitoring Service may be discontinued with respect to such consumer. You certify that all consumers who are subject to Continuous Monitoring Service have been made aware of it through your policies and procedures. You shall be billed on a monthly basis for the Continuous Monitoring Service and shall be charged per consumer.
- Adjudication Services. This Section shall only apply if you have elected to use our Adjudication/Risk Assessment Services. You are solely responsible for selecting the selection criteria (the “Selection Criteria”) that a potential applicant or employee must meet in order to be hired, trained or promoted, as applicable, and for any decisions taken based on the hiring criteria you have selected. You agree to consult with your own legal counsel to determine whether the Selection Criteria complies with applicable laws and regulations. You acknowledge and agree that we shall not be liable for any application of your Selection Criteria, that the application of your Selection Criteria is purely clerical in nature and shall be performed by us on your behalf. You acknowledge that we are not authorized to make any decision regarding hiring, training or promotion on your behalf. You shall review the content of the Consumer Reports in the manner and method prescribed by applicable law, including but not limited to, conducting individualized assessments and making final decisions on all Consumer Reports. You shall ensure that your use of the Selection Criteria in evaluating the Consumer Report and in your final decision with respect to an applicant or employee is in compliance with all applicable laws and regulations. Notwithstanding the foregoing, you shall not provide to us, and we shall not be obligated to follow, any “no hire” policy for a set level of offense such as a “no felony rule” unless you are required by law or regulation to make such criteria a condition of employment. We reserve the right to refuse to apply any Selection Criteria in our sole and complete discretion. You acknowledge that in performing the Adjudication Services we rely solely upon third party information, including without limitation educational institutions, past employers, and public records. We have not and will not conduct an independent investigation to determine the accuracy of the information furnished to us. We therefore cannot ensure or guarantee the accuracy of such information.
You agree to indemnify and hold harmless Provider and its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, damages, expenses (including attorneys’ fees) and costs arising or resulting from any claim that the Selection Criteria or the use thereof does not comply with any law or regulation. Provider shall have the right, in its sole discretion, to defend any such claim. - FCRA Adverse Action Notification Service.This Section shall only apply if you have elected to use our Adverse Action Notification Service. At your direction and to help you comply with your obligations under the federal FCRA, we will provide pre-adverse and adverse action notices to an applicant in connection with any pre-adverse or adverse action on an applicant-by-applicant basis and only after you have received a Consumer Report. You shall be deemed to have approved the content of any notice. You shall determine the timing and delivery of any notices. You understand that any decision regarding taking any pre-adverse or adverse action with respect to an applicant is solely your responsibility. You shall provide to us an email address for the impacted consumer to allow us to send any notices electronically. This service does not cover your compliance with any applicable state or local laws that may require additional adverse action responsibilities.
- Credit Reports. This Section shall only apply if you elect to order credit reports.You understand and agree to be subject to additional credentialing and application procedures as required by the credit bureaus furnishing the credit report product. You certify that you will promptly notify us of any change in your location, structure, ownership, or control, including but not limited to the addition of any branch(es) that will be requesting and/or accessing credit reports. Credit bureaus issuing credit reports may prohibit the following persons, entities and/or businesses from obtaining credit reports: adult entertainment service of any kind; asset location service; attorney or law firm engaged in the practice of law (unless engaged in collection or using the report in connection with a consumer bankruptcy pursuant to the written authorization of the consumer); bail bondsman (unless licensed by the state in which they are operating); child location service (i.e. a company that locates missing children); credit counseling (except not-for-profit credit counselors); credit repair clinic; dating service; financial counseling (except a registered securities broker dealer or a certified financial planner); foreign company or agency of a foreign government; genealogical or heir research firm; law enforcement agency; massage service; news agency or journalist; pawn shop; private detective, detective agency or investigative company; repossession company; subscriptions (magazines, book clubs, record clubs, etc.); tattoo service; time shares - company seeking information in connection with time shares (exception: financers of time shares); weapons dealer, seller or distributor.
- Equifax’s The Work Number®. If you have purchased The Work Number® information, you agree that you will hold Equifax harmless in the purchase and use of the information. You further agree that: (a) the information obtained will not be forwarded or shared with any third party; (b) the information will only be obtained for a permissible purpose under the FCRA; (c) you will comply with all applicable state laws regarding consumer credit or consumer identity protection; and (d) you will provide notice of consumer rights as required for Employment Purposes or identity theft as follows: www.consumerfinance.gov/learnmore/.
- THIRD PARTY APPLICATIONS. If Provider provides any integration or interfaces between the Platform and any third party products and/or services with functionality that interoperates with the Platform (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Provider to integrate with such Third Party-Applications. Provider and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Provider cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with the Platform in a manner acceptable to Provider. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use the Platform. You will indemnify Provider and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Provider or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Consumer PII (defined below)).
- FEES AND PAYMENT. We will invoice you with respect to any Order(s) on a monthly basis. You shall pay all invoices within thirty (30) days of the date of the invoice. Payment may be made by credit card, check, e-check or ACH/wire. Past due amounts shall accrue simple interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less, from the date such payment was due until the date paid. If any invoice to Customer is not paid within thirty (30) days of its due date, in our sole discretion, we may temporarily suspend your account until payment is received. If collection efforts are required, you shall pay all costs of collection including attorneys’ fees. Customer may only dispute charges appearing upon an invoice if notice of such dispute is provided to us in writing within thirty (30) days from the date of the invoice. Any check or other payment returned due to insufficient funds or any other reason is subject to a $25.00 fee.
Governmental or other third-party data vendor pass-through fees are subject to change without notice. We reserve the right to change the fees charged for our Services upon thirty (30) days’ prior written notice to you. Applicable sales or other taxes will be added to all fees.
If you have subscribed to our Ministry Mobilizer service, the following additional terms shall apply:- We may charge subscription fees on a monthly or an annual basis depending on which subscription you have selected.
- You must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Fees are non-cancellable and non-refundable.
- We may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30-day notice period. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes will go into effect for your next monthly term after the 30-day notice period. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using Ministry Mobilizer prior to the commencement of the renewal subscription period for which the price change applies.
- If you are paying via credit card or ACH, you authorize us to charge the applicable subscription fees at the then applicable rate plus any applicable taxes for the subscription to your credit card or account on file at the expiration of the term. Your subscription may only be cancelled by submitting your cancellation request here. We may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, if we are unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services.
- If you are not paying for Ministry Mobilizer via credit card or ACH, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. In addition, without limiting our other rights, if any fees are owed and not paid by you when due, we may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services. We may offer a free trial of Ministry Mobilizer. When a free-trial period ends, your paid subscription begins, and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial.
- If you cancel your subscription for any reason, or if the free-trial period ends and you cancel your subscription, unless required by law, you will not be able to access or retrieve any data you added, uploaded, or created during the time you subscribed to Ministry Mobilizer or during the free trial period.
- INTELLECTUAL PROPERTY OF PROVIDER. You recognize that Provider and its third-party licensors own all rights, title, and interests in and to the Platform (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Platform), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Provider, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Provider or its third-party licensors, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Provider does not grant you any rights to the Platform. . You do not acquire any ownership interest in the Platform under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Provider or its licensors or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- TERM AND TERMINATION
- Except with respect to Ministry Mobilizer, these Terms shall commence on the date these Terms are accepted by you and shall continue unless terminated by either of us as follows: (i) upon sixty (60) days’ prior written notice by one of us to the other, (ii) immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation. Notwithstanding the foregoing, with respect to Ministry Mobilizer, the subscription term shall be a period of one (1) year and shall automatically renew for additional one (1) year terms unless either party has provided at least sixty (60) days’ prior written notice to the other of its intent to not renew prior to the end of the initial term or the then current renewal term. In addition, with respect to Ministry Mobilizer, either party may terminate these Terms immediately upon written notice to the breaching party if a party is in material breach of these Terms or in breach of any law or regulation.
- Effect of Termination. Upon the termination of these Terms: (a) Provider shall have no obligation to perform any Services hereunder after the effective date of such termination; (b) you shall pay to Provider any fees or other amounts payable for the Services performed hereunder prior to the effective date of termination; and (c) all rights and licenses granted to you with respect to the Platform will immediately terminate, and you shall immediately discontinue use of the Platform. You understand and agree that in the event you request the return of any data or Consumer PII that you have provided to us or the Platform we have the right to charge you service fees and any applicable costs and expenses as a condition of returning any such data or Consumer PII.
- DATA PRIVACY AND SECURITY. You agree to keep and maintain Consumer Reports and any Consumer PII secure and confidential. “Consumer PII” means any personal information you provide to the Platform to conduct a background check on a consumer who is the subject of a Consumer Report. You represent and warrant that you maintain a comprehensive data security policy, plan, system and facility that implements all necessary and reasonable precautions for the protection of Consumer Reports and Consumer PII, including without limitation, storing the Consumer Reports and PII in a secure environment, transmitting the Consumer Reports and any Consumer PII in a secure manner, destroying paper copies of Consumer Reports when no longer needed, designating a limited number of key personnel who have a need to know about the Consumer PII and Consumer Reports, and maintaining strict procedures to ensure that your personnel are not able to use the Platform or Consumer Reports for improper, illegal or unauthorized purposes. You are solely responsible for the activities of any person accessing the Platform using any credentials issued to you. You shall promptly notify us of any security breach involving unauthorized access to any Consumer PII or Consumer Report provided to you by us pursuant to these Terms.
We shall only process Consumer PII in connection with our obligations and responsibilities under these Terms and both you and we agree to comply with federal, state, and local laws, rules, and regulations related to privacy and data protection that are applicable to the performance of the Services (“Applicable Data Privacy Laws”). We will notify you if we receive a request to exercise an individual’s privacy rights under Applicable Data Privacy Laws. We will not respond directly to an individual rights request unless explicitly instructed in writing by you to respond, provided such response can be reasonably carried out without undue burden on us. Upon written request, we shall delete or return all Consumer PII at the end of the Term, unless we have a valid legal obligation to retain such Consumer PII. We will maintain the confidentiality and security of any Consumer PII that we receive and any archival Consumer Reports that we maintain in accordance with our own data security and confidentiality policies and practices. We will notify you without undue delay when we become aware of any unauthorized access to, misappropriation of, loss of, damage to, or other compromise of the security, integrity, availability, or confidentiality of personal information (a “Security Incident”). We will take steps to address the Security Incident and mitigate potential harm that may result from the Security Incident and will provide timely information to you about the Security Incident as necessary for you to comply with Applicable Data Privacy Laws.
We may review your records that are reasonably required to demonstrate compliance with these Terms at any time upon reasonable prior notice during the Term and for 5 years thereafter. Your breach of this Agreement or violation of any applicable law, regulation or rule discovered by us may result in immediate suspension and/or termination of your account, legal action and referral to regulatory agencies. - CONFIDENTIALITY. By virtue of this Agreement, each party may obtain, learn, develop or have access to non-public information of the other party (“Confidential Information”). “Confidential Information” shall include all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked “confidential” or should be known to the Receiving Party to be confidential given the circumstances of its disclosure, whether communicated orally or in writing, and whether intangible or intangible form. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature against unauthorized use, disclosure or publication. The confidentiality obligations set forth in this Section do not apply to information that can be shown by the Receiving Party’s written records which: (i) was or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party that, insofar as is known to the Receiving Party, did not acquire the information from the Disclosing Party under an obligation of confident; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
- DISCLAIMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE PLATFORM WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.
- COMPLIANCE. You represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- CONSULTATION WITH LEGAL COUNSEL. You understand and agree that we do not provide any legal advice regarding your compliance with the various federal, state, and international laws which might apply. YOU ARE RESPONSIBLE FOR CONSULTATION WITH YOUR OWN LEGAL COUNSEL REGARDING THE PURCHASE AND USE OF CONSUMER REPORTS. You are solely responsible for the content of Disclosures, Authorizations, Pre-Adverse and Adverse letters, and the Summary of Rights, even when obtaining such sample documents from Provider for your own use. You agree not to rely on Provider for legal advice and acknowledge that you are solely responsible for your legal obligations and decisions and will consult with your own legal counsel at your own discretion regarding all legal matters, including but not limited to your obligations under the FCRA, applicable privacy laws and applicable state laws.
- INDEMNIFICATION; LIMITATION OF LIABILITY You agree to indemnify and hold us, our affiliates, and our and their respective directors, officers, employees and agents harmless against any cause of action, loss, liability, damage, cost or expense, including, without limitation, attorney’s fees and costs, arising out of or relating to: (A) your breach of any covenants, representatives or warranties of these Terms; (B) your violation of any applicable law or regulation, including without limitation, the FCRA; (C) for any misuse, abuse, or unlawful procurement of a Consumer Report by your agents or employees; and (D) the willful or malicious conduct by you or your employees. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY AND DAMAGES ARISING OT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. - EQUITABLE REMEDIES. Nothing herein shall prohibit Provider from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Provider from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Provider’ Intellectual Property Rights.
- WAIVER. No failure or delay by Provider in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- CONTACT US. You may contact Provider by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SEVERABILITY. If a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- SECTION TITLES. Section titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- GOVERNING LAW AND VENUE. These Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- ASSIGNMENT. You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Provider. Any attempted assignment in violation hereof shall be void and of no force or effect. Provider may assign its rights and delegate its duties hereunder at any time without your consent.
- ENTIRE AGREEMENT; MODIFICATION. These Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Provider reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
Effective June 14th 2023 to June 27th 2023
DownloadTable of Contents
- Summary of Your Rights Under the Fair Credit Reporting Act (16 CFR Part 601)
- Notice to Users of Consumer Reports (16 CFR Part 601)
- YOUR ACCOUNT.
- Credentialing. You shall be subject to our customer credentialling process prior to gaining access to our Services. You agree to provide all documents that we may request in order for us to verify and confirm your identity, your status as a legitimate business or other organization, and any applicable licensing requirements. YOU UNDERSTAND THAT WE HAVE THE RIGHT TO REJECT OR DENY SERVICE TO ANY CUSTOMER WHO DOES NOT MEET OUR CUSTOMER CREDENTIALING REQUIREMENTS.
- Account Information. To use our Services, you need to create an account with us. To do so, you must provide an email address, phone number and other information. We may use emails, telephone calls, or text messages to communicate with you on a recurring basis. By creating an account, you agree to receive communications from us and our partners at the email address and/or phone number you provide. You agree to provide us with your current, valid contact information and to update your email address and phone number any time this information changes. In some cases, you may be required to create a username and password (“Login Credentials”) to access and use our Services. You are responsible for any activity associated with your account, so it is important to maintain the confidentiality of your Login Credentials to help keep your account secure. Accordingly, you agree that you will not disclose your Login Credentials to any third parties, and you will not allow your Authorized Users to share account Login Credentials. You should also use a strong password that you don’t use for any of your other online accounts. You will be solely responsible for any unauthorized access, data security breach, damages or other losses that may result through your account, including through the misuse of your Login Credentials. You should immediately notify us if you believe someone has gained unauthorized access to your account by emailing support@ministrybrands.com. Provider will not be liable or responsible for any harm related to the use or misuse of your Login Credentials, your disclosure of your Login Credentials to another person, or your authorization to allow another person or entity to access and use our Services using your Login Credentials. Our Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all of your Authorized Users are at least 18 years old.
- Right to Use Platform; Restrictions on Use. Subject to your compliance with these Terms, Provider hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable right to access and use the Platform solely as expressly authorized by Provider under these Terms for your internal business purposes or other personal or non-commercial use. Only organizations or entities who are registered for the Platform and maintain an account may provide access to the Services to Authorized Users. “Platform” means the background checking platform offered by Provider or one of its licensors that allows you to submit orders (“Orders”) and access the Services offered by Provider. With respect to the Platform you shall not (and shall not authorize or encourage any other person to):
- sell, resell, lease, distribute, rent, assign, sublicense or otherwise transfer your rights under these Terms or to the Platform in whole or in part, to any third party, or include such Platform in a service bureau, time sharing or outsourcing offering;
- use, copy, adapt, modify, prepare derivative works based upon, or otherwise exploit the Platform, including any part, feature, function, or user interface thereof except as expressly permitted by Provider under these Terms;
- interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- access the Platform in order to build a competitive product or service;
- reverse engineer, disassemble, decompile, or decode the Platform, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Platform, in whole or in part;
- access or use the Platform in order to benchmark or compare the performance of the Platform, or any portion thereof, against another company’s products or services;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform;
- violate any applicable law or regulation in your use of the Platform; or
- use the Platform in any manner not permitted by these Terms.
- Cancellations and Refunds. All Orders must be carefully reviewed before submission. All submitted Orders are final and non-refundable. You will incur the cost of all Orders upon submission, including any Order that is later cancelled.
- Responsibility for Accurate Search Criteria. –You acknowledge and agree that it is your responsibility to provide accurate search criteria with respect to each consumer who is the subject of an Order. Further, you understand that you must carefully review all search information submitted with each Order and acknowledge that information cannot be changed following an Order submission. If you do need to correct or modify any information regarding the subject of your Order, including without limitation: name, date of birth, social security number, current address (if such change results in a different city or county of residence), such modified Order will be treated as a new search, and you will be charged fees for the original Order and the modified Order.
- USE OF CONSUMER REPORTS.
- Employment Purposes. If the Consumer Reports you obtain from us are used for Employment Purposes: (i) where state and local law mandates, you shall order a Consumer Report only after a conditional offer of employment has been made, and (ii) you shall, in every case prior to obtaining or causing a Consumer Report to be obtained, disclose to each consumer with respect to whom a Consumer Report is ordered, in a clear and conspicuous manner in a document consisting solely of the disclosure, that the Consumer Report is being obtained by You for employment purposes and shall also obtain written authorization from the applicable consumer that authorizes You to obtain a Consumer Report with respect to such consumer.
- EEO Certification. You hereby certify that you shall not use any Consumer Report in violation of any federal or state equal employment opportunity laws or regulations or in violation of any state or local ban-the-box, fair chance hiring, or related laws or regulations.
- New York City Certifications. If you are located in New York City or an applicant with respect to whom a Consumer Report is sought is a New York City resident or worker, you shall: (i) request a Consumer Report that includes criminal history information only after extending a conditional offer of employment to the job applicant, or, in the alternative that the position for which You are requesting a criminal history search is exempt under the Fair Chance Act; and (ii) request a Consumer Report that includes consumer credit history about an applicant or employee only if one of the permissible exemptions under Stop Credit Discrimination in Employment Act (N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015)) applies.
- California Certifications. If you are located in California or an applicant with respect to whom a Consumer Report is sought is a California resident or worker, you hereby certify that you shall, in accordance with the Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq. (ICRAA), and the Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq. (CCRAA):
- Request and use reports solely for a permissible purpose(s) identified under the ICRAA and the CCRAA
- When, at any time, reports are sought for employment purposes, unless a legal exception otherwise applies, provide a clear and conspicuous disclosure in writing to the consumer, in a document that consists solely of the disclosure (1) that a Consumer Report may be obtained; (2) the permissible purpose of the Consumer Report; (3) that information on the individual’s character, general reputation, personal characteristics and mode of living may be disclosed; (4) the name, address, telephone number, and website of Provider; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22; and (6) notify the individual of the Internet website address of Provider where the consumer may find information about Provider’s privacy practices;
- Provide the individual a means by which the individual may indicate on a written form by means of a box to check that the consumer wishes to receive a copy of any report that is prepared; and,
- If taking any adverse action, you shall comply with California Civil Code Sections 1785.20 and 1786.40, including, but not limited to, advising the consumer against whom the adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Consumer Report, informing the consumer in writing of your name, address and telephone number, and providing the consumer a written notice of his rights under the ICRAA and the CCRAA.
- Retention. You shall maintain copies of all written authorizations from consumers for a minimum of six (6) years from the date of request and shall make such written authorizations available to Provider upon request.
- Pre-Adverse Action. Prior to taking any adverse action that is based in whole or in part on a Consumer Report you shall adhere to the conditions imposed by the FCRA (15 U.S.C §1681b(b)(3)) which include: providing the consumer a copy of the applicable Consumer Report along with a letter that contains the name, address and toll-free number of provider, enclosing a copy of Summary of Your Rights Under the Fair Credit Reporting Act. Further, you shall allow the consumer a reasonable amount of time to respond to the pre-adverse notification before the adverse action is taken, taking into account weekends and holidays.
- Adverse Action Requirements. If you take an adverse action that is based in whole or in part on a Consumer Report you shall comply with the requirements of the FCRA (15 U.S.C. §1681m), including providing oral, written or electronic notice to the consumer of the adverse action; providing the name, address and toll-free telephone number of Provider to the consumer; informing the consumer that Provider did not make the decision with respect to the adverse action and is therefore unable to provide the consumer with the specific reasons why the adverse action was taken; and notifying the consumer of their right to obtain a free copy of the Consumer Report within sixty (60) days and to dispute with Provider the accuracy or completeness of any information in the Consumer Report.
- Authorizations. You shall ensure that Consumer Reports are requested only by one of Your authorized representatives and shall further ensure that authorized representatives do not obtain Consumer Reports on themselves or any other person except in furtherance of a permissible purpose under the FCRA.
- Nondisclosure of Report. You shall hold all Consumer Reports obtained hereunder in strict confidence and shall not disclose any Consumer Report to any third party unless disclosure to a third party is in furtherance of a permissible under the FCRA. You shall use the Consumer Report one time only and shall only use the Consumer Report for a permissible purpose under the FCRA. You shall not sell, sublicense, lease, deliver, display or otherwise distribute any Consumer Report provided hereunder except as may be permitted under these Terms.
- Disposal of Reports. You may retain copies of Consumer Reports for as long as permitted under your document retention policies. You shall use reasonable best efforts to prevent unauthorized access to the Consumer Reports. Any data or Consumer Report that must be destroyed shall be destroyed in a secure manner to make it inaccessible, unreadable and/or unrecoverable, including without limitation by: burning, pulverizing or shredding, destroying or erasing electronic files beyond use, or hiring an authorized document destruction firm.
- Compliance Assessment. Upon reasonable notice, you agree to provide to us Consumer Report-related documents maintained as to consumers upon whom Consumer Reports were obtained, including copies of executed disclosures and authorizations, any pre-adverse and adverse action correspondence, and reasonable evidence of your compliance with applicable laws regarding consumer data privacy in order to enable us to satisfy our obligations under federal and state laws and regulations and our vendor agreements.
- Notification. You shall immediately notify Provider in writing of any data security breach affecting or reasonably likely to have affected any Consumer Report obtained hereunder.
- SERVICE-SPECIFIC TERMS AND CERTIFICATIONS.
- National Criminal Database. You acknowledge that any information obtained from our National Criminal Database is comprised of information obtained from various government agencies throughout the country. The content of the National Criminal Database is subject to change with or without notice. A complete list of the agencies providing information to the National Criminal Database is available upon your request. The National Criminal Database search is considered a pointer search. We will not report any information solely from this product without first verifying such information for accuracy through records obtained at the court level, as defined by Section 613 of the FCRA. We make no express or implied warranty as to the accuracy or the completeness of the information from the National Criminal Database.
- Motor Vehicle Records. You hereby certify that you will only order Motor Vehicle Records or Driving Records (in either case, “MVRs”) in compliance with applicable state and federal laws, including but not limited to the Drivers Privacy Protection Act (18 U.S.C. §2721 et seq.). You acknowledge and agree that we may conduct audits of your compliance with the terms of this Section 3.B. in our sole discretion and we may terminate the MVR services in the event we determine you are not compliant. You further certify and agree as follows:
- you will not allow unauthorized access to MVRs;
- you shall indemnify any state and its agent(s) from any wrongful use, sale, or release of MVRs;
- your intended use of MVRs is for a permissible purpose under the FCRA and the DPPA;
- no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to us in the form of the consumer’s signed release authorization form;
- you shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means;
- you shall immediately notify us if you discover that MVRs provided pursuant to this Agreement have been disclosed or used in violation of this agreement or any applicable state or federal law;
- you shall not use any information provided by any state to create or update a file that would allow you to develop your own source of driving history information; and
- you shall provide an Affidavit of Intended Use and Statement of Confidentiality upon our request, and you agree to execute all individual state-required documents for the receipt and use of MVRs.
- Investigative Consumer Reports. If you request an Investigative Consumer Report (which includes character references and extended employment verification), you hereby certify as follows:
- you have implemented safeguards to protect the integrity of your screening programs.
- you shall submit a release signed by the subject of the Consumer Report that contains the following:
- A clear disclosure to the consumer that an Investigative Consumer Report – including information as to the consumer’s character, general reputation, personal characteristics and mode of living – may be made;
- A statement informing the consumer of their right to request from you the nature and scope of any Investigative Consumer Report; and
- A statement informing the consumer of their right to request a Summary of Consumer Rights in the form approved by the Consumer Financial Protection Bureau. As defined by Section 603(e) of the FCRA, an “Investigative Consumer Report” is a Consumer Report for which information on a consumer’s character, general reputation, personal characteristics, or mode of living, is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information.
- International Searches. You acknowledge that we may engage third party contractors to perform international background screening. Because of the differences in foreign laws, access restrictions, language, and recordkeeping capabilities, we cannot ensure or guarantee the accuracy of international background screening services. You understand and agree that you are fully responsible for complying with all foreign laws and regulations applicable to your use of international search results.
- Employment Eligibility; I-9 Services. If you have requested that Provider serve as your E-Verify Employer Agent for purposes of your participation in the Department of Homeland Security’s (“DHS”) E-Verify program for purposes of employment eligibility determinations, you hereby certify and agree to the following:
- you shall be responsible for providing the fully executed DHS-required Memorandum of Understanding (“MOU”) to Provider, retaining copies of all applicable documents and complying with all aspects of the MOU;
- you shall comply with the requirements of the E-Verify program, including the E-Verify User Manual and the MOU, and the posting of the following E-Verify Posters: “E-Verify Participation Poster” and “Right to Work Poster”;
- you will not use the Employment Eligibility Program for pre- employment inquiries and acknowledge that such use is strictly prohibited;
- you will provide us with the names, titles, addresses, telephone numbers, and email addresses for your representative(s) serving as point(s) of contact for program verification matters;
- you will not modify or alter in any way any Further Action Notices (including Tentative Non-confirmation notices) provided to you by Provider in order for you to contact an applicant and determine if the applicant wishes to contest the findings;
- you shall not to take “adverse action” against an applicant based upon the employment eligibility status of the verification and shall give the applicant the option of contesting the findings by checking the appropriate status directly on the non-confirmation notice; and
- you shall not engage in discriminatory practices against anyone and shall apply verification procedures to all new hires (not selectively).
- Consent Based Social Security Number Verification Service. This Section shall only apply if you elect to use our Consent Based Social Security Number Verification Service (“SSNVS”). You hereby agree to the following:
- you will obtain from the consumer and provide to us a release signed by the consumer prior to submitting a verification request. You will further provide all information requested in order for us to provide the SSNVS, including without limitation, the consumer’s first and last names and social security number.
- you accept all liability for all decisions based upon the SSNVS.
- you acknowledge that the SSNVS does not verify employment eligibility or an employee’s immigration status, and does not interface with the DHS employment eligibility verification system
- Drug Testing. This Section shall only apply if you elect to order drug tests. You understand and agree that any drug tests you order will be performed by third parties who are acting at your direction. We will include the results of any such tests in Consumer Reports. Service fees charged to you shall include Medical Review Officer (“MRO”) services from a MRO we have chosen in our sole discretion, for review of all positive drug tests. The MRO will be responsible for: (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results in accordance with DOT regulations; (v) resolution of correctable flaws on COC forms; (vi) acting as Designated Employee Representative (“DER”) contact if unable to contact the consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated and unacceptable results; (ix) maintenance of drug test reports pursuant to applicable state and federal laws and regulations; and (x) medical review of “medically necessary” substances and protection of the consumer’s privacy rights in accordance with state and federal laws.
- Continuous Monitoring Service. This Section shall only apply if you have elected to use our Continuous Monitoring Service. We will provide criminal record monitoring services to identify criminal activity with respect to consumers who have been selected by you after they have been onboarded by you as an employee, volunteer or independent contractor. You certify that you have obtained the appropriate consent(s) from the consumer, as required by the FCRA and state law. No later than 48 hours after a consumer is no longer engaged by you as an employee, volunteer or independent contractor, you shall notify us so that the Continuous Monitoring Service may be discontinued with respect to such consumer. You certify that all consumers who are subject to Continuous Monitoring Service have been made aware of it through your policies and procedures. You shall be billed on a monthly basis for the Continuous Monitoring Service and shall be charged per consumer.
- Adjudication Services. This Section shall only apply if you have elected to use our Adjudication/Risk Assessment Services. You are solely responsible for selecting the selection criteria (the “Selection Criteria”) that a potential applicant or employee must meet in order to be hired, trained or promoted, as applicable, and for any decisions taken based on the hiring criteria you have selected. You agree to consult with your own legal counsel to determine whether the Selection Criteria complies with applicable laws and regulations. You acknowledge and agree that we shall not be liable for any application of your Selection Criteria, that the application of your Selection Criteria is purely clerical in nature and shall be performed by us on your behalf. You acknowledge that we are not authorized to make any decision regarding hiring, training or promotion on your behalf. You shall review the content of the Consumer Reports in the manner and method prescribed by applicable law, including but not limited to, conducting individualized assessments and making final decisions on all Consumer Reports. You shall ensure that your use of the Selection Criteria in evaluating the Consumer Report and in your final decision with respect to an applicant or employee is in compliance with all applicable laws and regulations. Notwithstanding the foregoing, you shall not provide to us, and we shall not be obligated to follow, any “no hire” policy for a set level of offense such as a “no felony rule” unless you are required by law or regulation to make such criteria a condition of employment. We reserve the right to refuse to apply any Selection Criteria in our sole and complete discretion. You acknowledge that in performing the Adjudication Services we rely solely upon third party information, including without limitation educational institutions, past employers, and public records. We have not and will not conduct an independent investigation to determine the accuracy of the information furnished to us. We therefore cannot ensure or guarantee the accuracy of such information.
You agree to indemnify and hold harmless Provider and its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, damages, expenses (including attorneys’ fees) and costs arising or resulting from any claim that the Selection Criteria or the use thereof does not comply with any law or regulation. Provider shall have the right, in its sole discretion, to defend any such claim. - FCRA Adverse Action Notification Service.This Section shall only apply if you have elected to use our Adverse Action Notification Service. At your direction and to help you comply with your obligations under the federal FCRA, we will provide pre-adverse and adverse action notices to an applicant in connection with any pre-adverse or adverse action on an applicant-by-applicant basis and only after you have received a Consumer Report. You shall be deemed to have approved the content of any notice. You shall determine the timing and delivery of any notices. You understand that any decision regarding taking any pre-adverse or adverse action with respect to an applicant is solely your responsibility. You shall provide to us an email address for the impacted consumer to allow us to send any notices electronically. This service does not cover your compliance with any applicable state or local laws that may require additional adverse action responsibilities.
- Credit Reports. This Section shall only apply if you elect to order credit reports.You understand and agree to be subject to additional credentialing and application procedures as required by the credit bureaus furnishing the credit report product. You certify that you will promptly notify us of any change in your location, structure, ownership, or control, including but not limited to the addition of any branch(es) that will be requesting and/or accessing credit reports. Credit bureaus issuing credit reports may prohibit the following persons, entities and/or businesses from obtaining credit reports: adult entertainment service of any kind; asset location service; attorney or law firm engaged in the practice of law (unless engaged in collection or using the report in connection with a consumer bankruptcy pursuant to the written authorization of the consumer); bail bondsman (unless licensed by the state in which they are operating); child location service (i.e. a company that locates missing children); credit counseling (except not-for-profit credit counselors); credit repair clinic; dating service; financial counseling (except a registered securities broker dealer or a certified financial planner); foreign company or agency of a foreign government; genealogical or heir research firm; law enforcement agency; massage service; news agency or journalist; pawn shop; private detective, detective agency or investigative company; repossession company; subscriptions (magazines, book clubs, record clubs, etc.); tattoo service; time shares - company seeking information in connection with time shares (exception: financers of time shares); weapons dealer, seller or distributor.
- Equifax’s The Work Number®. If you have purchased The Work Number® information, you agree that you will hold Equifax harmless in the purchase and use of the information. You further agree that: (a) the information obtained will not be forwarded or shared with any third party; (b) the information will only be obtained for a permissible purpose under the FCRA; (c) you will comply with all applicable state laws regarding consumer credit or consumer identity protection; and (d) you will provide notice of consumer rights as required for Employment Purposes or identity theft as follows: www.consumerfinance.gov/learnmore/.
- THIRD PARTY APPLICATIONS. If Provider provides any integration or interfaces between the Platform and any third party products and/or services with functionality that interoperates with the Platform (the “Third-Party Applications”) used by you, you shall be solely responsible for ensuring that you have all necessary consents, licenses and cooperation from such third party provider of the Third-Party Applications to allow Provider to integrate with such Third Party-Applications. Provider and its affiliates make no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any Third Party-Application, any transactions completed in or through the same, nor for any contract entered into by you or your Authorized Users with any such third party. Provider cannot guarantee the continued availability of any features designed to interoperate with Third Party-Applications and may cease providing them without entitling you to any refund or credit, if for example and without limitation, the provider of the Third Party-Application ceases to make the Third Party-Application available for interoperation with the Platform in a manner acceptable to Provider. You are responsible for complying with the applicable terms of service for any Third Party-Applications with which you use the Platform. You will indemnify Provider and its affiliates against all costs, losses, liabilities and damages which arise from any action or claim against Provider or its affiliates by such third-party provider and/or other third party in respect of the use of (and/or integration/interface with) such Third Party-Application and related data (including without limitation Consumer PII (defined below)).
- FEES AND PAYMENT. We will invoice you with respect to any Order(s) on a monthly basis. You shall pay all invoices within thirty (30) days of the date of the invoice. Payment may be made by credit card, check, e-check or ACH/wire. Past due amounts shall accrue simple interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less, from the date such payment was due until the date paid. If any invoice to Customer is not paid within thirty (30) days of its due date, in our sole discretion, we may temporarily suspend your account until payment is received. If collection efforts are required, you shall pay all costs of collection including attorneys’ fees. Customer may only dispute charges appearing upon an invoice if notice of such dispute is provided to us in writing within thirty (30) days from the date of the invoice. Any check or other payment returned due to insufficient funds or any other reason is subject to a $25.00 fee.
Governmental or other third-party data vendor pass-through fees are subject to change without notice. We reserve the right to change the fees charged for our Services upon thirty (30) days’ prior written notice to you. Applicable sales or other taxes will be added to all fees.
If you have subscribed to our Ministry Mobilizer service, the following additional terms shall apply:- We may charge subscription fees on a monthly or an annual basis depending on which subscription you have selected.
- You must pay all fees during your subscription period and any renewal periods, absent cancellation prior to the start of the next renewal period. Fees are non-cancellable and non-refundable.
- We may at any time, upon notice of at least 30 days, or a longer period if required by applicable law, change the price of your subscription. If you have prepaid your annual or multi-year subscription, price changes and the institution of new fees implemented after your prepayment will go into effect for your next annual or multi-year subscription term after the 30-day notice period. The foregoing will apply even if you pay your annual or multi-year subscription fees on a monthly basis. If you have a monthly subscription, price changes will go into effect for your next monthly term after the 30-day notice period. If you do not wish to accept a fee change, your sole remedy is to cancel your subscription to and stop using Ministry Mobilizer prior to the commencement of the renewal subscription period for which the price change applies.
- If you are paying via credit card or ACH, you authorize us to charge the applicable subscription fees at the then applicable rate plus any applicable taxes for the subscription to your credit card or account on file at the expiration of the term. Your subscription may only be cancelled by submitting your cancellation request here. We may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, if we are unable to process payment through the credit card provided by you without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services.
- If you are not paying for Ministry Mobilizer via credit card or ACH, all fees due hereunder shall be due and payable within thirty (30) days of the invoice date. In addition, without limiting our other rights, if any fees are owed and not paid by you when due, we may suspend your access to Ministry Mobilizer or downgrade your account without prior notice, including removing additional features and discounts associated with a Ministry Mobilizer subscription, without effecting your obligation to make payments hereunder until all overdue amounts are paid in full. If your failure to pay persists for a period of thirty (30) days or longer, we may terminate these Terms and your access to the Platform and the Services. We may offer a free trial of Ministry Mobilizer. When a free-trial period ends, your paid subscription begins, and you must pay the full monthly or annual fee unless you cancel your subscription prior to the end of the free trial.
- If you cancel your subscription for any reason, or if the free-trial period ends and you cancel your subscription, unless required by law, you will not be able to access or retrieve any data you added, uploaded, or created during the time you subscribed to Ministry Mobilizer or during the free trial period.
- INTELLECTUAL PROPERTY OF PROVIDER. You recognize that Provider and its third-party licensors own all rights, title, and interests in and to the Platform (including all forms, templates, page headers, custom graphics, button icons, scripts, trademarks, trade dress, other proprietary content, software, data, data compilations and interfaces, and all Intellectual Property Rights (as defined below) embodied in the Platform), including without limitation, all corrections, updates, modifications and other derivative works to the Platform. All Intellectual Property Rights in any work arising from or created, produced or developed by Provider, whether alone or jointly with others, under or in the course of these Terms, will immediately upon creation or performance vest absolutely in and will be and remain the property of Provider or its third-party licensors, and you will not acquire any right, title or interest in and to this intellectual property. Except for the limited license and use rights expressly granted in these Terms, Provider does not grant you any rights to the Platform. . You do not acquire any ownership interest in the Platform under these Terms and shall not engage in any activity that violates or undermines the Intellectual Property Rights of Provider or its licensors or the limited license and use rights granted to you under these Terms. For purposes of these Terms, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, moral rights, design rights or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- TERM AND TERMINATION
- Term and Termination. This Agreement shall be for a term of one year, and shall be automatically renewed for successive one-year terms unless terminated by either party as follows: (i) with sixty (60) days’ prior written notice by either party to the other, (ii) immediately upon written notice to the breaching party if a party is in material breach of this Agreement or in breach of any law or regulation. Notwithstanding the foregoing, with respect to Ministry Mobilizer, the subscription term shall be a period of one (1) year and shall automatically renew unless either party has provided at least thirty (30) days’ prior written notice to the other.
- Effect of Termination. Upon the termination of these Terms: (a) Provider shall have no obligation to perform any Services hereunder after the effective date of such termination; (b) you shall pay to Provider any fees or other amounts payable for the Services performed hereunder prior to the effective date of termination; and (c) all rights and licenses granted to you with respect to the Platform will immediately terminate, and you shall immediately discontinue use of the Platform. You understand and agree that in the event you request the return of any data or Consumer PII that you have provided to us or the Platform we have the right to charge you service fees and any applicable costs and expenses as a condition of returning any such data or Consumer PII.
- DATA PRIVACY AND SECURITY. You agree to keep and maintain Consumer Reports and any Consumer PII secure and confidential. “Consumer PII” means any personal information you provide to the Platform to conduct a background check on a consumer who is the subject of a Consumer Report. You represent and warrant that you maintain a comprehensive data security policy, plan, system and facility that implements all necessary and reasonable precautions for the protection of Consumer Reports and Consumer PII, including without limitation, storing the Consumer Reports and PII in a secure environment, transmitting the Consumer Reports and any Consumer PII in a secure manner, destroying paper copies of Consumer Reports when no longer needed, designating a limited number of key personnel who have a need to know about the Consumer PII and Consumer Reports, and maintaining strict procedures to ensure that your personnel are not able to use the Platform or Consumer Reports for improper, illegal or unauthorized purposes. You are solely responsible for the activities of any person accessing the Platform using any credentials issued to you. You shall promptly notify us of any security breach involving unauthorized access to any Consumer PII or Consumer Report provided to you by us pursuant to these Terms.
We shall only process Consumer PII in connection with our obligations and responsibilities under these Terms and both you and we agree to comply with federal, state, and local laws, rules, and regulations related to privacy and data protection that are applicable to the performance of the Services (“Applicable Data Privacy Laws”). We will notify you if we receive a request to exercise an individual’s privacy rights under Applicable Data Privacy Laws. We will not respond directly to an individual rights request unless explicitly instructed in writing by you to respond, provided such response can be reasonably carried out without undue burden on us. Upon written request, we shall delete or return all Consumer PII at the end of the Term, unless we have a valid legal obligation to retain such Consumer PII. We will maintain the confidentiality and security of any Consumer PII that we receive and any archival Consumer Reports that we maintain in accordance with our own data security and confidentiality policies and practices. We will notify you without undue delay when we become aware of any unauthorized access to, misappropriation of, loss of, damage to, or other compromise of the security, integrity, availability, or confidentiality of personal information (a “Security Incident”). We will take steps to address the Security Incident and mitigate potential harm that may result from the Security Incident and will provide timely information to you about the Security Incident as necessary for you to comply with Applicable Data Privacy Laws.
We may review your records that are reasonably required to demonstrate compliance with these Terms at any time upon reasonable prior notice during the Term and for 5 years thereafter. Your breach of this Agreement or violation of any applicable law, regulation or rule discovered by us may result in immediate suspension and/or termination of your account, legal action and referral to regulatory agencies. - CONFIDENTIALITY. By virtue of this Agreement, each party may obtain, learn, develop or have access to non-public information of the other party (“Confidential Information”). “Confidential Information” shall include all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked “confidential” or should be known to the Receiving Party to be confidential given the circumstances of its disclosure, whether communicated orally or in writing, and whether intangible or intangible form. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature against unauthorized use, disclosure or publication. The confidentiality obligations set forth in this Section do not apply to information that can be shown by the Receiving Party’s written records which: (i) was or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party that, insofar as is known to the Receiving Party, did not acquire the information from the Disclosing Party under an obligation of confident; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
- DISCLAIMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS”. PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS, THE SERVICES, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (I) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (IV) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (V) ERRORS OR DEFECTS WILL BE CORRECTED; (VI) THE PLATFORM WILL SATISFY ANY SERVICE LEVELS OR OTHER REQUIREMENTS FOR UPTIME OR AVAILABILITY, OR (VII) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SERVICES, MAY BE SUBJECT TO LAGS, DOWNTIME, DELAY OR INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.
- COMPLIANCE. You represent and warrant that your use of the Services will be in accordance with these Terms and any applicable laws and regulations, including without limitation any local laws or regulations in your state, city, or other governmental area, regarding the Services, online conduct, and acceptable content.
- CONSULTATION WITH LEGAL COUNSEL. You understand and agree that we do not provide any legal advice regarding your compliance with the various federal, state, and international laws which might apply. YOU ARE RESPONSIBLE FOR CONSULTATION WITH YOUR OWN LEGAL COUNSEL REGARDING THE PURCHASE AND USE OF CONSUMER REPORTS. You are solely responsible for the content of Disclosures, Authorizations, Pre-Adverse and Adverse letters, and the Summary of Rights, even when obtaining such sample documents from Provider for your own use. You agree not to rely on Provider for legal advice and acknowledge that you are solely responsible for your legal obligations and decisions and will consult with your own legal counsel at your own discretion regarding all legal matters, including but not limited to your obligations under the FCRA, applicable privacy laws and applicable state laws.
- INDEMNIFICATION; LIMITATION OF LIABILITY You agree to indemnify and hold us, our affiliates, and our and their respective directors, officers, employees and agents harmless against any cause of action, loss, liability, damage, cost or expense, including, without limitation, attorney’s fees and costs, arising out of or relating to: (A) your breach of any covenants, representatives or warranties of these Terms; (B) your violation of any applicable law or regulation, including without limitation, the FCRA; (C) for any misuse, abuse, or unlawful procurement of a Consumer Report by your agents or employees; and (D) the willful or malicious conduct by you or your employees. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY AND DAMAGES ARISING OT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY PORTION OF THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. - EQUITABLE REMEDIES. Nothing herein shall prohibit Provider from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Provider from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Provider’ Intellectual Property Rights.
- WAIVER. No failure or delay by Provider in exercising any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- CONTACT US. You may contact Provider by emailing us at: info@ministrybrands.com or by reaching us by any other means specified in a communication received from us.
- SEVERABILITY. If a court of competent jurisdiction rules that a provision of these Terms is invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
- NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein, there are no third-party beneficiaries to these Terms.
- SECTION TITLES. Section titles or references used in these Terms shall be without substantive meaning or content of any kind and do not form part of the agreement hereunder.
- GOVERNING LAW AND VENUE. These Terms and all matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, except for its conflict of law provisions, which shall not apply. All such disputes will be brought and decided in a court of law in the State of Tennessee.
- ASSIGNMENT. You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Provider. Any attempted assignment in violation hereof shall be void and of no force or effect. Provider may assign its rights and delegate its duties hereunder at any time without your consent.
- ENTIRE AGREEMENT; MODIFICATION. These Terms constitute the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of these Terms and such additional documents. Provider reserves the right to change these Terms at any time, by posting the amended version, which will be indicated by the effective date of the updated version at the top of these Terms. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit this page often. The most recent version of these Terms takes precedence over any previous version of these Terms that we have issued related to the Services and your continued use of the Services constitutes your acceptance of the most recent version of these Terms.
Automatic Check Deposit Solution Pricing Terms
Effective April 19th 2024
DownloadTable of Contents
Automatic Check Deposit Solution Pricing Terms
Your use of our Church Management Solutions is subject to the terms of our Master Terms of Service (the “Terms of Service”) as well as the following additional terms.
1. Initial Pricing Based on Estimated Monthly Usage: Your initial pricing is determined based on the estimated monthly usage you provide during the onboarding process in accordance with the Pricing Tiers below. This estimate will be used as the basis for your initial billing until the first full quarter of service has passed after the activation of the Automatic Check Deposit Solution and the commencement of check processing
2. Pricing Tiers: Our pricing structure is formulated based on the number of checks you scan and deposit with us. Here is a detailed breakdown of the applicable pricing tiers:
Tier | Quantity | Monthly Fee |
1 | 0-100 | $36.00 |
2 | 101-250 | $90.00 |
3 | 251-500 | $180.00 |
4 | 501-1000 | $360.00 |
5 | 1001-1500 | $540.00 |
6 | 1501-2000 | $720.00 |
7 | 2001-2500 | $900.00 |
8 | 2501-3000 | $1,080.00 |
9 | 3001-3500 | $1,260.00 |
10 | 3501-4000 | $1,440.00 |
11 | 4001-4500 | $1,620.00 |
12 | 4501-5000 | $1,800.00 |
Type | Fee Amount | Frequency |
Balancing Adjustment | $0.10 | Each |
Check Amount Keyed | $0.10 | Each |
Image Quality Modification | $0.10 | Each |
MICR Repair | $0.10 | Each |
ACH Return | $5.00 | Each |
Check 21 Return | $5.00 | Each |
Re-presentment | $5.00 | Each |
Re-presentment with Collected State Fee | $10.00 | Each |
Unauthorized Returns | $10.00 | Each |
Check 21 Adjustment | $40.00 | Each |
Authorization Review Request | $75.00 | Each |
Correction of Duplicate Deposits | $75.00 | Each |
Debit Blocks | $75.00 | Each |
Failure to Notify of Bank Account Change | $75.00 | Each |
Research Charge | $75.00 | Each |
Return Against Settlement Account | $75.00 | Per Hour, One Hour Minimum |
Effective April 19th 2024 to April 19th 2024
DownloadTable of Contents
Automatic Check Deposit Solution Pricing Terms
Your use of our Church Management Solutions is subject to the terms of our Master Terms of Service (the “Terms of Service”) as well as the following additional terms.
1. Initial Pricing Based on Estimated Monthly Usage: Your initial pricing is determined based on the estimated monthly usage you provide during the onboarding process in accordance with the Pricing Tiers below. This estimate will be used as the basis for your initial billing until the first full quarter of service has passed after the activation of the Automatic Check Deposit Solution and the commencement of check processing
2. Pricing Tiers: Our pricing structure is formulated based on the number of checks you scan and deposit with us. Here is a detailed breakdown of the applicable pricing tiers:
Tier | Quantity | Fee |
1 | 0-100 | $36.00 |
2 | 101-250 | $90.00 |
3 | 251-500 | $180.00 |
4 | 501-1000 | $360.00 |
5 | 1001-1500 | $540.00 |
6 | 1501-2000 | $720.00 |
7 | 2001-2500 | $900.00 |
8 | 2501-3000 | $1,080.00 |
9 | 3001-3500 | $1,260.00 |
10 | 3501-4000 | $1,440.00 |
11 | 4001-4500 | $1,620.00 |
12 | 4501-5000 | $1,800.00 |
Type | Fee Amount | Frequency |
Balancing Adjustment | $0.10 | Each |
Check Amount Keyed | $0.10 | Each |
Image Quality Modification | $0.10 | Each |
MICR Repair | $0.10 | Each |
ACH Return | $5.00 | Each |
Check 21 Return | $5.00 | Each |
Re-presentment | $5.00 | Each |
Re-presentment with Collected State Fee | $10.00 | Each |
Unauthorized Returns | $10.00 | Each |
Check 21 Adjustment | $40.00 | Each |
Authorization Review Request | $75.00 | Each |
Correction of Duplicate Deposits | $75.00 | Each |
Debit Blocks | $75.00 | Each |
Failure to Notify of Bank Account Change | $75.00 | Each |
Research Charge | $75.00 | Each |
Return Against Settlement Account | $75.00 | Per Hour, One Hour Minimum |
Effective April 17th 2024 to April 19th 2024
DownloadTable of Contents
Automatic Check Deposit Solution Terms
Your use of our Church Management Solutions is subject to the terms of our Terms of Service (the “Agreement”) as well as the following additional terms. Any capitalized terms used but not defined below have the meanings in the Agreement.
1. Initial Pricing Based on Estimated Monthly Usage: Your initial pricing is determined based on the estimated monthly usage you provide during the onboarding process in accordance with the Pricing Tiers below. This estimate will be used as the basis for your initial billing until the first full quarter of service has passed after the activation of the Automatic Check Deposit Solution and the commencement of check processing
2. Pricing Tiers: Our pricing structure is formulated based on the number of checks you scan and deposit with us. Here is a detailed breakdown of the applicable pricing tiers:
Tier | Number of Scanned Checks | Monthly Pricing |
1 | 0-250 | |
2 | 251-500 | |
3 | 501-1000 | |
4 | 1000+ |
Type | Fee Amount | Frequency |
Balancing Adjustment | $0.10 | Each |
Check Amount Keyed | $0.10 | Each |
Image Quality Modification | $0.10 | Each |
MICR Repair | $0.10 | Each |
ACH Return | $5.00 | Each |
Check 21 Return | $5.00 | Each |
Re-presentment | $5.00 | Each |
Re-presentment with Collected State Fee | $10.00 | Each |
Unauthorized Returns | $10.00 | Each |
Check 21 Adjustment | $40.00 | Each |
Authorization Review Request | $75.00 | Each |
Correction of Duplicate Deposits | $75.00 | Each |
Debit Blocks | $75.00 | Each |
Failure to Notify of Bank Account Change | $75.00 | Each |
Research Charge | $75.00 | Each |
Return Against Settlement Account | $75.00 | Per Hour, One Hour Minimum |