Platform Agreement for Merchants
This Platform Services Agreement (“Agreement”) is entered into by and between Flourish Change, Inc. ("Company"), a corporation formed under the laws of Delaware, with an address at 2802 Manor Rd, Austin TX 78722 (“Flourish”) and the Partner, an e-commerce merchant (“Partner” or “Customer”). This Agreement will be effective as of the date at which the Partner indicates its acceptance of this Agreement during the signup process on https://merchant.roundupapp.com to utilize the RoundUp App widget on their website.
Make the Flourish app and website donation platform, hosted at merchant.roundupapp.com or relevant subdomains, (the “Platform”) available to the Partner to allow them to enable their customers to donate to a selected nonprofit (the “Selected Nonprofit”).
Flourish will enable a process for the merchant to allow their customers to donate to a selected cause. Flourish will track, and automatically transfer the cumulative donations to the Selected Nonprofit on a recurring basis no less, than once every forty-five (45) days. Flourish will not process donations for less than $10 and wait for the total donation to exceed this value.
Provide reasonable technical support, marketing templates or recommendations, reporting on donations made to the Partner and the individuals making those donations, or other services as agreed to by Flourish and the Partner (“Services”).
In connection with Partner’s use of the Platform Services, Partner shall:
Designate the Selected Nonprofit, as shown on Exhibit A, which may be changed from time-to-time in accordance with this Agreement.
Comply with all applicable laws, court orders, rules and regulations, including, without limitation, the Foreign Corrupt Practices Act and related international anti-corruption laws and the Digital Millennium Copyright Act and related copyright laws.
Use reasonable security precautions to protect access to the Partner’s account with the RoundUp App or payment processor account for receiving donations.
Give Flourish Change, Inc. true, accurate, current, and complete account information;
Promptly notify Flourish Change, Inc. of any known or suspected unauthorized use of Partner’s account or any other breach of security.
The Partner shall not, directly or indirectly, alone or with another party:
Copy, distribute, modify, reverse engineer, decompile, or attempt to obtain the source code or algorithms of the Platform, the RoundUp App website or any other intellectual property of Flourish Change, Inc. or its third-party service providers.
Sell, rent, lease, license, sublicense, resell or transfer any applications or intellectual property of Flourish Change, Inc. or its licensors.
Flourish may choose to deny access to the Platform to a nonprofit organization at Flourish Change, Inc.’s sole discretion. Organizations that promote hatred, violence, or racism are not eligible to participate in the Platform. All Partners must be approved by Flourish before they are eligible to use the Platform. Flourish reserves the right to audit and reject a Partner after they have been previously approved.
REPORTING AND TAX RECEIPTS
The Partner will receive access to transaction-level reporting via merchant.roundupapp.com. These reports will include the transaction id, amount of the transaction, a unique UUID that Flourish assigns to each transaction, an indication if the money has been sent to the Selected Nonprofit.
Donations processed on behalf of a consumer are not tax-deductible for the Partner. Flourish will indicate to the Selected Nonprofit that they should not provide a tax receipt for this gift. If the Partner chooses to match the gifts of their customers, then only this portion of the donation will be tax-deductible. Flourish requests a W-9 for each merchant who chooses to match donations to be provided to their Selected Nonprofit.
Flourish does not issue tax receipts, nor does it represent or warrant that donations will be tax-deductible under the law. Flourish does not provide legal or tax advice, and nothing contained herein should be construed as such.
PAYMENT OF DONATED FUNDS
The Platform requires that each Partner connect a payment method to our system via Stripe. Flourish will automatically draft the provided account no-less than every forty-five (45) days unless the Partner has less than $10 in cumulative donations. In this case, the Partner’s donations will not be processed until they surpass this level.
The Platform utilizes Stripe as its payment processor. Donations are automatically transferred into a Stripe account owned by the Selected Nonprofit, minus Stripe’s payment processing fees and Flourish’s donation enablement fees. From Stripe, the Selected Nonprofit transfer’s the funds to their bank account(s).
Flourish reserves the right to wait to deposit donated funds into the Partner’s Stripe account to prevent chargebacks, credit card fraud or other issues. Payment processing services for Partners on the Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a Partner on the Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Flourish Change, Inc. enabling payment processing services through Stripe, you agree to provide Flourish Change, Inc. accurate and complete information about you and your business, and you authorize Flourish Change, Inc. to share this and other transaction information related to your use of the payment processing services provided by Stripe.
Beginning on the Effective Date and continuing throughout the term of this agreement, Partner acknowledges that Flourish Change, Inc. charges a variable fee to the Selected Nonprofit ranging from 5%-15% of each donation processed.
In addition, the Partner may choose to pay the Company a fee that they desire, ranging from $10-$1,000,000/mo. The fees that a Partner chooses to pay the Company do not offset the fees paid by a nonprofit, but do go towards supporting and covering the costs of providing the software to the Partner.
Flourish may choose to offer additional services that may have separate pricing, to be separately agreed upon by Flourish and the Partner.
This fee structure may change from time to time at Flourish’s discretion, without notice to the Partner.
All payments under this Agreement are exclusive of taxes imposed by any governmental entity. Partner shall pay any applicable sales taxes.
ROUNDUP AT CHECKOUT
Subject to the restrictions in this section, Flourish grants to you a revocable, non-exclusive and non-transferable license to use the IP content licensed to Flourish by the Selected Nonprofit related to the Selected Nonprofit’s name, logo, mission, and brand (the “Licensed Materials”), but solely to access and use the Licensed Materials for the purposes of facilitating point-of-sale donations, including to offer your customers the opportunity to participate in RoundUp and to donate to the Selected Nonprofit via your websites or point-of-sale terminals via the RoundUp Platform.
The license provided above does not include any right to sell the Licensed Materials or otherwise distribute the Licensed Materials outside of the RoundUp Platform. This license may be terminated at any time, and will terminate immediately upon the remove of the Licensed Materials from the RoundUp Platform by the Selected Nonprofit.
TERM OF AGREEMENT
Subject to earlier termination as provided below, this Agreement for the Initial Service Term shall be for twelve (12) months, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
The parties recognize that Company will expend substantial resources to onboard the Customer. In the event that Customer seeks to terminate this Agreement before the end of the term, then the Customer agrees to pay Company a Termination Fee in the amount of the Gross Donation Revenue collected on behalf of the Customer during the prior 6 months or $5,000, whichever is greater. The Termination Fee shall be due within five (5) business days of Termination. Until the Termination Fee is paid, Company has no obligation to release any records to Customer. Additionally, upon Termination and for twelve (12) months thereafter, the Customer agrees not to: (a) directly or indirectly solicit or encourage any employees to leave the employment of the Company; (b) provide any reports, workproduct or analysis performed by the Company to any person or entity which competes with Company; or (c) retain a competitor to perform the same or substantially similar services as the Company.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
The Company shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and 4 technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
RELATIONSHIP OF THE PARTIES
Flourish and the Partner (collectively, the “Parties”) are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
WARRANTIES AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. In the event this indemnity is triggered, Company shall have the right to control the defense, hire counsel and shall not be required to settle any claim or lawsuit. Furthermore, Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Customer shall indemnify and hold the Company harmless for all claims, lawsuits or damages which exceed the limitation of liability contained below.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) THE LESSER OF EITHER ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR $10,000 WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If the customer creates a Texting Account via the “Connect” link within https://admin.roundupapp.com, the Customer warrants and represents that it does and will comply with all laws, rules, regulations and statutes including but not limited to the Telephone Consumer Protection Act, is solely responsible for providing the list of people to be called or texted, has prior express consent of all persons or entities who will receive calls or texts, has validated that no person or entity is on any DO NOT CALL list. Customer shall hold Company harmless and indemnify it for any claims, lawsuits or disputes for violations of law and/or violations of the Telephone Consumer Protection Act. This indemnity is intended to be construed as broadly as possible and will include the obligation to pay defense costs for counsel chosen at Company’s sole election, litigation expenses and any settlement, judgment or damages.
FUNDRAISER AND COMMERCIAL CO-VENTURE RULES
Partner and the Selected Nonprofit each agree that Flourish is providing e-payment processing services under this Agreement, and each are not seeking professional fundraising services or attempting to enter into a commercial co-venture. Furthermore, it is the understanding of all parties to this Agreement that any charitable donations made to the Selected Nonprofit are being made by the consumers of Partner’s goods and services, or where applicable, by Partner, directly to the Selected Nonprofit, and not via Flourish or as a result of a charitable solicitation or appeal made by Flourish. Partner and the Selected Nonprofit agree not to take any contrary position on any governmental filing, except as required by law and following notice to Flourish of such contrary position.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Any dispute between the Parties or arising under the terms of this Agreement, or under any other document or instrument executed in connection with this Agreement, shall be resolved by arbitration, which shall be conducted in Dallas, Texas, in accordance with the then-prevailing JAMS Streamline Arbitration Rules and Procedures, and in accordance with the Expedited Procedures in those Rules before the Honorable Glen Ashworth. If, for any reason, Judge Ashworth is unwilling or cannot serve in the capacity designated herein, then each party shall select one (1) arbitrator and those two arbitrators shall then jointly select a third arbitrator in accordance with JAMS’s Streamlined Rules & Procedures. The Parties agree that irreparable damage would occur in the event of any breach of this Agreement by Customer and that the Arbitrator(s) may award injunctive relief, specific performance of the terms hereof, or other equitable relief without prejudice to any other rights and remedies that the Parties may have for a breach of this Agreement at law or in equity. Also, the Parties have specifically agreed that the Arbitrator(s) cannot consider or award punitive, incidental or consequential damages.
CONSENT TO JUISDICTION; INTERIM RELIEF
Notwithstanding the Disputes section of this Agreement, the Parties agree that (i) irreparable damage would occur in the event of any breach of this Agreement; (ii) the Company shall be entitled to preliminary and/or interim injunctive relief, specific performance of the terms hereof, or other equitable relief in the state and Federal courts of Dallas, Texas, without prejudice to any other rights and remedies that the parties may have for a breach of this Agreement at law or in equity, to enforce the terms of this Agreement; and (iii) Customer waives any challenge or objection to personal jurisdiction in the State of Texas, and agrees that any action or proceeding arising out of or brought to enforce the provisions of this Agreement may be brought in any Federal or state court in Dallas, Texas.
GOVERNING LAW AND CONSENT TO JURISDICTION
This Agreement shall be construed in accordance with and governed by the laws of the State of Texas, without regard to its conflict of law provisions.
CLASS ACTION WAIVER
NOTWITHSTANDING THE AGREEMENT TO ARBITRATE, THE CUSTOMER ALSO HEREBY WAIVES ANY PARTICIPATION IN A CLASS ACTION AS A CLASS MEMBER OR AS A REPRESENTATIVE ON BEHALF OF A CLASS. CUSTOMER SHALL ONLY PARTICIPATE IN LITIGATION AS AN INDIVIDUAL ENTITY AND WILL NOT COMBINE ANY CLAIMS WITH ANY OTHER PERSON OR ENTITY.
In the event that the Company is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, labor dispute, electric power failure, communication line failure or other cause beyond the control of the Company (hereinafter, “Force Majeure Event”), Company will immediately give notice to Customer and will use best efforts to resume performance as soon as practicable. Upon the occurrence of a Force Majeure Event and for so long as the Force Majeure Event continues, all affected obligations under this Agreement will be suspended.
MODIFICATION OF AGREEMENT
The Company can modify this agreement without notice, except for the designation of the Selected Nonprofit on Exhibit A. Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party; provided, that Flourish shall not unreasonably withhold, condition, or delay a Partner-proposed modification solely to revise Exhibit A to name a new Selected Nonprofit.
It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.
For purposes of this Agreement, and as of Effective Date, “Selected Nonprofit” shall mean: The nonprofit chosen by the Partner on https://merchant.roundupapp.com and is displayed by the Partner to the public when being asked to RoundUp purchases.