Benevity End User Terms of Use (United States B2C Adaptor)
Context. You have accessed these Terms of Use through a link on www.foodieregistry.com operated by Foodie Registry, LLC. (the “Host”). The web site you will be directed to for donation functionality is operated by Benevity Social Ventures, Inc. (“Benevity”). Benevity is a micro-donation processing software company that, among other things, licenses certain application programming interfaces respecting donation functionality (the “Benevity Platform”) to e-commerce and other businesses such as www.foodieregistry.com (the “Host Environment” or the “Site”). The following Terms of Use govern your use of the Benevity Platform through the Host Environment and your access to any capabilities that Benevity may provide through the Site. By accessing or using the Benevity Platform, the Site, and any of the content or capabilities provided through the Site, you signify that you have read, understand, and agree to be bound by this agreement.
Using the Benevity Platform through the Host Environment, United States members of the general public using or transacting within the Host Environment will be offered the opportunity to make a contribution of money to or provide non-binding recommendations about which “eligible charities” should receive distributions from a donor advised fund administered by the American Endowment Foundation, an IRS-recognized, tax exempt, public charity described in Internal Revenue Code §501(c)(3) serving a national constituency, whose primary activity is donor advised fund administration (the “Foundation”). The Foundation will further its charitable purposes by accepting (through the Benevity Platform) contributions from the Host and other US members or users of the Host Environment (sometimes referred to as “Donors”), holding the contributed funds, and distributing the funds through use of a database within the Benevity Platform (the “Eligible Charity Database”) to organizations that are eligible IRS-recognized, tax exempt, charities described in Internal Revenue Code (the “Tax Act”) §501(c)(3) in accordance with Donor Advice (defined below) as part of a donor advised fund established in favor of those corporations that utilize the Benevity Platform (the “Donor Advised Fund”).
You may use the Host Environment and the Benevity Platform from a United States domain or location or from another location if you are a United States taxpayer, and you agree to the terms below. If you disagree with any of these terms, you are not entitled to access or utilize any of the Benevity Platform’s charitable donation functionality presented in the Host Environment.
1. Overview
1.1. The Host has established one or more donation programs within the Host Environment to facilitate the donation of United States currency (“Donation Funds”) that are generated by your participation in such programs (“Donation Programs”) established by Host or Host-approved third parties (“Program Originators”) to a list of charities within the Eligible Charity Database (“Eligible Charities”) that should receive a distribution from the Donor Advised Fund. The Host may add, remove or otherwise change Program Originators and Eligible Charities at any time without notice. The purpose of the Donation Programs is to facilitate the making of donations by you and other users of the Site to Eligible Charities via the Donor Advised Fund.
1.2. This agreement (as it may be amended from time to time, the “Donation Platform Agreement” or this “Agreement”) sets out certain terms and conditions applicable to users of the Benevity Platform and all Donation Programs which utilize its functionality, supersedes all previously published terms and conditions or agreements relating to Donation Programs, and is separate and distinct from all agreements (“Donation Program Agreements”) entered into between you and the Host or other Program Originators relating to Donation Programs. This Agreement may be amended at any time by Benevity posting the amended version to the Site.
2. Participation and Acceptance
2.1. With respect to all Donation Programs utilizing the Benevity Platform:
(a) you must have agreed to be bound by the terms and conditions of this Agreement by indicating acceptance when prompted on the Site.
(b) you must be at all times be in full compliance with this Agreement;
(c) your membership or user privileges under any of the Site Documents must not have been terminated or suspended, and you must not have otherwise been disqualified from participating in any Donation Program pursuant to the terms and conditions of this Agreement or any other Site Document; and
(d) the agreement between Host, Benevity and the Foundation respecting utilization of the Benevity Platform must be in good standing and full force and effect.
For the purposes of this Agreement, a participant in a Donation Program is referred to as a “Participant”.
2.2. Your acceptance of this Agreement will constitute your acknowledgment that you have received, read and agreed with the terms and conditions of this Agreement, as they may be amended from time to time. The posting of this Agreement, as amended from time to time, on or via the Site (via hyperlink, i-frame or otherwise) is deemed notice to you of this Agreement and any amendment of it, where notice is required or permitted to be given. Furthermore, registration as a Participant on the Site or participation in any Donation Program or any use of the Benevity Platform constitutes acceptance of this Agreement, as amended from time to time.
2.3. You acknowledge and agree that Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (the “Benevity Parties”) will not have any liability or responsibility to you in connection with any Donation Program, or any agreement relating to any such program or the earning of or entitlement to funds or the privilege of providing Donor Advice in either case, on account of Donation Funds that may be generated by your participation in any Donation Program or the calculation or entitlement to Donation Funds by the Program Originator, and you release and forever discharge the Benevity Parties from all claims in connection with such matters. You further acknowledge that Benevity is solely a licensor of software and provider of ancillary services to facilitate Host’s or Program Originator's Donation Program(s) using the Foundation. Benevity does not receive or administer the Donation Funds, and has no interest in or control over any donations made to the Foundation through the Benevity Platform or the rules and operations of the Donation Program sponsored by the Host or other Program Originator.
3. Types of Donation Transactions.
3.1. Host utilizes Benevity’s “B2C Adaptor” (that forms part of the Benevity Platform) to enable Participants to make gifts of Donation Funds to select Eligible Charities via PayPal or credit card, using the merchant account facilities of the Foundation (called a “Direct Gift”).
In the case of a Direct Gift, it is intended that the donation and any tax receipt be for the credit of the original Participant making or directing the Gift. Host on its own behalf or as agent for the Participant has or will have provided funds to or for the benefit of the Foundation respecting the donation amounts representing the Direct Gift or in the case of the “B2C Adaptor”, such funds will be provided to the Foundation via the merchant account. Upon Donation Funds being allocated by the relevant Participant within the Benevity Platform and the corresponding funds being transferred to and held by the Foundation, the Donation Funds will normally represent a receiptable gift by the Participant to the Foundation through the Benevity Platform, subject to the Foundation’s receipt and approval of the Donor Advice and to the Default Rules.
4. Value; Transferability
4.1 Except as specifically provided herein, Donation Funds are not transferable other than in accordance with this Agreement without the express consent of Host.
5. Earned or Gifted Donation Funds
5.1. You acknowledge that Benevity is a software licensor, and it relies on information provided by the Host or other relevant Program Originators with respect to the nature and terms of the Donation Program, the amount of Donation Funds that may be generated through your participation in Donation Programs, and all matters relating to the presentation and execution of the Donation Program within the Host Environment, and you release and forever discharge the Benevity Parties with respect to all claims relating to such matters.
5.2. Once Donation Funds have been donated or deemed donated pursuant to this Agreement, the Donation Funds are beneficially owned by the Foundation and a donation is effectively made on behalf of the relevant Participant to the Donor Advised Fund, subject to receipt of Donor Advice, and to the acceptance or approval of such advice by the Foundation in its discretion. For greater certainty, “Donor Advice” is deemed to have been given when Donation Funds have been allocated or deemed allocated to the Foundation or to an Eligible Charity recommended from the Eligible Charity Database via (i) the Participant utilizing the “donate” or “donate now” functionality of the Benevity Platform (or equivalent) to allocate Donation Funds to one or more Eligible Charities; or (ii) one or more of the Default Rules (defined in Article 9 below) are applicable, which therefore determines the allocation of the Donation Funds. In accordance with the legal requirements for a donor advised fund, all Donor Advice is subject to the acceptance or approval of the Foundation in its discretion. Moreover, all amounts held in Donor Advised Funds are under the Foundation’s exclusive legal control and may be used only for charitable purposes and not for the benefit of any Host, Program Originator, Participant, donor, donor advisor, or other impermissible private benefit.
6. Donations
6.1. In delivering certain aspects of the Donation Programs, Host licenses aspects of the Benevity Platform and uses the services of the Foundation. Depending upon the nature of the Host Environment, it may also utilize the services of other foundations to effect similar results for users in other jurisdictions. You direct Host or the Foundation, as the case may be, to make a gift on your behalf of all funds held by Host or merchant account funds received by the Foundation generated by your participation, subject to adjustments permitted under this Agreement, to the Foundation on the date (the “Donation Date”) that is the later of (a) and (b) below, where: (a) is the earlier of: (i) in the case of a Direct Gift made by you, the date upon which you have instructed Host or the Foundation to make the donation (which may be immediately donated upon Foundation's receipt of funds in the amount of the donation); and (ii) in any case where any of the Default Rules apply, the date on which the donation is deemed effected by such Default Rule; and (b) is the date on which the Foundation is in receipt of unrestricted funds in an amount equaling the relevant Donation Funds. Such Gifts will be received by the Foundation or by Host as agent to be transferred to the Foundation, and thereafter will normally be a tax receiptable donation made by the relevant Participant to the Foundation. All such donations are to the Donor Advised Fund maintained by the Foundation, and will be subject to a management fee of 7% payable to the Foundation, which is deducted from the amounts disbursed by the Foundation to the Eligible Charities (the “Platform Fee”). In the event your donation is made by credit or other payment card using Host’s or other Program Originator’s or merchant account (or equivalent) or via the “B2C Adaptor”, the amount of the donation may be reduced by such merchant account charges.
6.2. Once Donation Funds have been allocated by or to a Participant in accordance with the terms of this Donation Program Agreement, they become Donation Funds and the Foundation is entitled to transfer to the corresponding Donor Advised Fund account from any funds provided to it for Participant’s account or from such other available source of funds accessible to the Foundation on behalf of such Participant, an amount equal to the redemption value of all such Donation Funds, upon which such funds are thereupon beneficially owned by the Foundation.
7. Tax and Tax Receipts
7.1. If you are a United States taxpayer and in compliance with this Agreement and all other Site Documents, you may be eligible to receive a tax receipt (PDF file accessible by email) with respect to certain applicable Direct Gifts made by you or on your behalf to the Foundation. If you are entitled to a receipt, the relevant date of the tax receipt will be the Donation Date in the taxation year in which cash equal in value to the Donation Funds was donated to the Foundation in accordance with this Agreement. Notwithstanding the foregoing, you will not be entitled to obtain a valid tax receipt unless and until the Foundation is in receipt of funds representing the Donation Funds that have been generated by you. Please note that if you do not request a tax receipt or provide the information necessary for the Benevity Platform on behalf of the Foundation to generate and send a receipt on or before December 31 in any calendar year, you may not be entitled to a receipt for donations made in that year (see the Default Rules in Article 9 below).
7.2. Notwithstanding anything contained in this Donation Program Agreement or other Site Document, or the issuance of any tax receipts in your name by or on behalf of the Foundation, in no event shall Benevity, Host, Program Originator or the Foundation be liable to you for any direct or indirect damages, including without limitation any tax, interest, fines, damages, penalties or other levies imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Donation Program or the use of the Benevity Platform, whether through the Site or otherwise. You must consult your own tax and legal advisors respecting the actual tax or other impact of donations made through the Host Environment.
7.3. You irrevocably appoint Host as your trustee, where applicable under a Donation Program, to receive funds from you or other Program Originators or third party payment processors on account of Donation Funds you generate through participation in Donation Programs. You acknowledge and agree that: (a) until the Donation Date, these funds will be held by Host or by the Foundation on behalf of Host for your benefit; (b) these funds may be comingled with funds received in trust on account of Donation Funds provided by other Participants, and with other funds of Host; (c) Host or its designee, as trustee, has all the powers necessary to deal with and transfer or gift these funds pursuant to the terms of this Agreement and any Donation Program Agreement; (d) Host or the Foundation can deduct the Platform Fee and any merchant fees set forth in Section 6.1; (e) Host or the Foundation has no responsibility or duty to invest these funds provided however that if interest is earned on these funds then the Foundation can keep any interest earned, and pay such interest to itself; and (f) Host can amend this Donation Platform Agreement and the terms of this trust as it may determine in its sole discretion, provided that no amendment may change the beneficial ownership of such funds without your consent.
7.4 Host accepts its appointment as agent and trustee pursuant to the terms of this Donation Platform Agreement.
8. Suspension, Disqualification and Termination
8.1. Host, in its sole discretion, may disqualify you from participating in any Donation Program for any reason with or without notice, including without limitation, due to death, bankruptcy, pursuant to Section 5, if you do not meet the participation requirements set forth in Section 2, if you or any other person using donation functionality on your behalf commits fraud or fails to comply with the terms of this Agreement or any other Site Document, if you are suspended and the matter underlying the suspension is not resolved to the satisfaction of Host or Benevity, or if the agreement between Host and Benevity for the use of the Benevity Platform is terminated in accordance with its terms. Upon disqualification, you will no longer have any rights under this Agreement, including without limitation, your rights to provide Donor Advice, and Host as trustee or any third party payment processor will be entitled to transfer any funds held in trust for your benefit on account of Donation Funds generated by your participation in the Donation Program to the Foundation and the Foundation will be entitled to utilize any such funds as it may determine in its sole discretion.
8.2. Host, in its sole discretion, may terminate the Donation Program or any part of it for any reason on notice posted on the Site.
8.3. You may cancel your participation in the Host Donation Program at any time at the Site in accordance with the relevant Site Documents and upon doing so you will be eligible to provide Donor Advice for the qualifying contributions to the Foundation attributable to Donation Funds generated or purchased by you up to the cancellation or close date, which Donation Funds may be donated only as permitted by Host pursuant to the terms and conditions of this Agreement.
9. Default Rules
9.1. It is intended that there be no “breakage” within the Benevity Platform, such that all Donation Funds end up generating a donation to a charity. In certain circumstances identified below (collectively called the “Default Rules”), the results of intended actions within the Benevity Platform or the relevant Donation Program may be modified in the manner specified where a Default Rule is applicable. These provisions are in addition to any consequences of disqualification, suspension or termination contained elsewhere in this Agreement.
9.2. In circumstances where: (i) Donor Advice is not provided within the time specified in the Site Documents and in any event within 12 months following December 31 of the year in which the Donation Funds were allocated by or to a user; (ii) an Eligible Charity requested as part of Donor Advice is (a) no longer registered and in good standing as an Eligible Charity with Internal Revenue Service or other relevant regulatory agency, or (b) is otherwise no longer in the Eligible Charity Database; (iii) the Donation Funds allocated across the Benevity Platform to a particular Eligible Charity do not exceed the check threshold of the Foundation (currently $250) within 2 years of the relevant Donation Date; or (iv) the Foundation, exercising its discretion as a Donor Advised Fund, chooses to disagree with or decline to follow the Donor Advice, then the Foundation will make the determination of the Eligible Charity to which such donation will be made.
9.3. In circumstances where: (i) a tax receipt is not requested via the Benevity Platform by a Participant on or prior to December 31 in any calendar year in which Donation Credits have been allocated to such Participant or the name, address and any other information required by the Foundation to enable the Benevity Platform to generate a valid tax receipt in favor of such Participant is not provided by Host or such Participant prior to December 31 in any such calendar year; or (ii) the Foundation determines that the donation is not properly receiptable by it under applicable law; or (iii) in the case of a particular type of Gift, the recipient declines to obtain the tax receipt, the Foundation may issue the tax receipt to the Host or other Program Originator in the case of certain eligible Gifts and in all other cases the subject donation will be deemed “anonymous” and no receipt will be issued or accessible to the Participant.
9.4. In circumstances where: (i) the Host or other Program Originator or Participant or merchant account provider has not provided sufficient funds equal to the redemption value of allocated Donation Funds or identifies a chargeback respecting a previously authorized Gift; or (ii) bankruptcy or other legal process affecting Host or any other Program Originator or Participant compels the Foundation to return any funds held by it on deposit for the redemption of Donation Funds, no donation can be deemed effected and no receipt issued unless and until funds representing the allocated Donation Funds are unequivocally transferred to the Foundation.
10. Representations and Warranties
10.1. You represent and warrant to each of Host, Benevity and any other Program Originator that you are over the age of majority in the jurisdiction in which you reside and that this Donation Platform Agreement constitutes a binding and enforceable agreement against you, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity relating to enforceability.
11. Privacy
11.1. The information provided by you at the Site and other information that may be provided by you from time to time, as well as information about your transactions in connection with Donation Programs, is required by Host to manage your utilization of the Benevity Platform and your participation in the Donation Programs. You consent to and authorize each of Host, Benevity, and the Foundation, its subsidiaries and affiliates and any other third parties with whom any of the foregoing contract in order to manage the Donation Program, the Benevity Platform and carry out the terms of the Donation Platform Agreement, to share information about you, and Donation Programs as necessary to effect, administer, enforce, service or fulfill the terms of this Agreement, your participation in the Donation Programs and your utilization of the Benevity Platform. The collection, use and disclosure of personal information about you by Host will be in accordance with Host’s Privacy Policy available at the Site and applicable law.
12. Arbitration
12.1 Any claim, dispute or controversy (whether in contract or tort, pursuant to any statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this Agreement; (b) the Benevity Platform; (c) oral or written statements, advertisements or promotions relating to this Agreement or the Benevity Platform or any Donation Program; or (d) the relationships that result from this Agreement (including relationships with third parties) (collectively, a "Claim"), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). You agree to waive any right you may have to commence or participate in any class action against Benevity or the Foundation related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Benevity or the Foundation. If you have a Claim you must give written notice to arbitrate to Benevity at the address obtained by following the instructions in Section 14. If Benevity or the Foundation has a Claim it will give you notice to arbitrate at the address you have provided to Host in association with the use of the Site or other Host Environment with which the Benevity Platform is used. Arbitration of Claims will be conducted in such forum and pursuant to such rules as you and Benevity agree upon, and failing agreement will be conducted by one arbitrator selected by Benevity pursuant to the laws and rules relating to commercial arbitration in the State in which you reside that are in effect on the date of the notice to arbitrate.
13. Miscellaneous
13.1. You are solely responsible for any personal tax liability arising from participation in any Donation Program. You are advised to consult with a personal tax advisor in order to determine any personal tax consequences. You agree to release Host, Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates successors and assigns from any and all claims for direct or indirect damages, including without limitation any tax, interest, penalties or other amounts imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Donation Program or the use of the Benevity Platform, whether through the Host Environment or otherwise.
13.2. This Agreement and its benefits are offered at the sole discretion of Host and Benevity. You understand and agree that either Host or Benevity may at any time, with or without notice, change this Donation Platform Agreement in whole or in part including, but not limited to, the conditions of participation, the earning and accumulation of Donation Credits, the rate at which Donation Credits are earned and any terms and conditions relating to the Foundation or Eligible Charities.
13.3. Host, Benevity and the Foundation may rely on your acceptance of and agreement with this Agreement. No person or entity is intended to be a beneficiary of or may rely on this Agreement unless expressly stated herein.
13.4. No delay or omission by Host or Benevity in exercising any right or remedy contained in this Agreement will operate as a waiver of any of such rights and remedies nor shall it be interpreted as such. Either or both of Host and Benevity may, in its sole discretion, deviate from the strict observance, performance or compliance by you of any terms and conditions of this Agreement. Such deviations will not alter, affect or prejudice any of Host’s or Benevity’s other rights or remedies and will only be effective in the specific instance and for the specific purpose for which it was given and will be deemed not to be a waiver of any other of Host’s or Benevity’s rights or remedies as a result of any other breach of this Agreement.
13.5. You agree to hold Host, Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (collectively, the “Indemnitees”) harmless from and against all liability, causes of action, tax liability, penalties, costs and claims, and will reimburse the Indemnitees’ reasonable and actual expenses incurred in connection therewith (including legal fees and costs), arising from or related to your participation in any Donation Program including, but not limited to, any breach by you of this Donation Platform Agreement or any fraud, misrepresentation or abuse committed by you in connection with your participation in any Donation Program or any other person using your credentials to effect any Gift.
13.6. It is your responsibility to promptly advise Host of any changes to your mailing and email addresses or other contact information by making the necessary changes to the information provided by you at the Site.
13.7. Benevity is not affiliated in any manner with any Program Originators or Eligible Charities and is not agent, representative or employee of any of them, and no such party has the power to obligate or bind the other. Donation Program Agreements, this Agreement and any other Site Documents are each independent of the others. Neither Benevity nor Host makes any representation as to any agreement other than this Agreement or as to any Program Originator or Eligible Charity and neither offers, endorses, nor guarantees any of the goods, services, information or recommendations provided by third parties to you in respect of any Program Originator or Eligible Charity.
13.8. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER HOST NOR BENEVITY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO YOU IN CONNECTION WITH THE BENEVITY PLATFORM, ANY DONATION PROGRAM, ANY PROGRAM ORIGINATOR, OR ANY ELIGIBLE CHARITY. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE OR OTHER HOST ENVIRONMENT AND YOUR RELIANCE THEREON.
13.9. Notwithstanding the governing law of any agreement between you and Host or other Program Originator, this Agreement shall be governed by the laws applicable in the State of Ohio, and you hereby agree irrevocably to consent to the jurisdiction of the State of Ohio. Any interpretation, question or dispute regarding a Donation Program or this Donation Platform Agreement will be resolved at the sole discretion of Host or Benevity, as the case may be. In no event will Host’s liability with respect to the Host Donation Program be greater than the value of Donation Credits in your favour at the time the dispute arose. If any provision of this Agreement is invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of this Agreement.
13.10. This Agreement constitutes the entire agreement between you and Benevity regarding your utilization of the Benevity Platform in the Host Environment.
13.11. You consent to the formation of contractual relations through electronic communications.
