Charities Terms and Conditions

Momentpin Terms and Conditions for Charities

Contents

1. Term & Membership
2. Momentpin’s Obligations
3. Charity’s Obligations – General
4. Charity’s Obligations – Data Protection and Direct Marketing 
5. Intellectual Property Rights and Licence 
6. Fees
7. Liability
8. Insurance
9. Confidential Information
10. Termination
11. Suspension of Momentpin Services
12. Notices and Entire Agreement
13. Third Party Rights
14. Grievances from employees, complaints handling process and dispute resolution
15. Governing Law 

Please read these Terms and Conditions carefully. By applying to be (and continuing to be) a member of the Momentpin platform, each charity and similar organisation (a “Charity” for the purposes of these Terms and Conditions) is agreeing to these Terms and Conditions. If the Charity does not wish to be bound by these Terms and Conditions, the Charity should not continue to use or access any of the Momentpin Services (as defined below).

MOMENTPIN LIMITED, is a company registered in Scotland under Company Number SC573358 with offices at Room 1.07 Bellahouston Business Centre, 423 Paisley Road West, Glasgow, G51 1PZ, United Kingdom.

Momentpin is currently working with Charities based in the United Kingdom (“UK”), although the charity may have operations in the UK and abroad. The Charity must be registered in the UK, under the appropriate Charity commission for England and Wales, Scotland or Northern Ireland.

Momentpin is a trading name of Momentpin Limited. Momentpin operates various online tools and services including a website at www.momentpin.com and a mobile application which allows users to create fundraising pages, users can donate to those pages and for Charities to access data about those pages (together, the “Momentpin Services”). The Terms and Conditions govern the Charity’s use of the Momentpin Services.

Each party shall indemnify and hold the other party and its officers, directors, employees and representatives harmless from and against any and all liabilities, damages, awards, settlements, losses, claims and expenses arising as a result of any breach by the indemnifying party of its obligations hereunder, provided that the indemnified party: (i) promptly notifies the other party of any such potential liability; (ii) ensures no admissions are made without the indemnifying party’s consent; (iii) enables the indemnifying party to settle any negotiations on reasonable terms; and (iv) provides the indemnifying party with all reasonable assistance.

Please note that separate terms and conditions apply (in addition to these Terms and Conditions) for the use of certain Momentpin products or services, such as APIs.
Momentpin may change or update these Terms and Conditions from time to time. The current version of the Terms and Conditions will be available at https://www.momentpin.com/privacy-policy/. It is the Charity’s responsibility to access and check these Terms and Conditions whenever the Charity accesses or uses the Momentpin Services. The latest version of these Terms and Conditions will govern any future usage by the Charity of the Momentpin Services.

These Terms and Conditions supersede and replace all previous versions of the Terms and Conditions.

1. Term & Membership

1.1 For the purposes of these Terms and Conditions, “Commencement Date” shall mean the date from which the Charity is notified that the Charity has been successfully registered to use the Momentpin Services (which shall be at Momentpin’s sole discretion). Momentpin shall provide the Momentpin Services to the Charity and the Charity shall comply with these Terms and Conditions until the membership is validly terminated.
1.2 Membership is for a minimum period of one (1) month from the Commencement Date and thereafter from month to month until terminated by written notice, or via the Momentpin online portal, by either party to the other, in accordance with Section 10.1 below. Please see Section 10 of these Terms and Conditions for further termination provisions.

 

2. Momentpin’s Obligations

Donations and Charity Trust Funds Account
2.1 Momentpin will maintain the Charity Trust Funds Accounts at Bank of Scotland in Scotland, UK. These are trust bank accounts in which monies (other than the interest accruing on such monies) are held on trust for the Charity and do not belong to Momentpin.

2.2 Momentpin will operate the Momentpin Services so that donors can make donations by credit or debit card, or by any other payment method made available by Momentpin, through the mobile application page set up for the Charity or on the Charity’s area on the Momentpin platform. The Momentpin Services is on an “as is” and “as available” basis. Whilst Momentpin cannot promise trouble free use, experience suggests that the Momentpin Services are reliable.

2.3 Momentpin will set up arrangements to ensure that all donations received by Momentpin (after deduction of bank processing charges, Momentpin’s transaction fees (as described in Section 6) and applicable sales taxes) are;

2.3.1 paid into a Charity Trust Funds Account and are held in trust for the Charity; and

2.3.2 paid out by automated bank transfer from the Charity Trust Funds Account to the Charity’s validated bank account. These payments will be made monthly. The currency used is GBP.

2.4 Momentpin uses a 3rd party payment gateway and will provide information on the provider as requested for verification standards and requirements in accordance with good industry practice to ensure that donors’ credit cards and debit cards are debited and the Charity Trust Funds account is credited in a secure manner.


Support and Donation Acknowledgements

2.5 Momentpin or its 3rd party payment processor or its 3rd party GiftAid processor will send prompt e mail acknowledgements to donors in respect of each donation made to the Charity via the Momentpin Services.

2.6 Momentpin will respond to fundraisers’ and donors’ account enquiries that it receives.


Personal Information

2.7 Momentpin will capture personal information including but not limited to the fundraiser’s and the donor’s name, title, address and email address (“Personal Information”) at all times in accordance with local privacy laws, regulatory requirements and guidance as updated and amended from time to time including such laws, regulatory requirements and guidance applicable in the territory where donors and fundraisers access the Website (“Local Privacy Laws”) and protect and secure such information. Charities should refer to Momentpin Terms of Service located at https://www.momentpin.com/privacy-policy/ for more details of how Momentpin operates its services, processes Personal Information and uses cookies. For the avoidance of doubt this Section 2.7 does not imply that Momentpin will share such information with the Charity, but selected Personal Information shall be shared with the Charity in accordance with Section 2.9 below.

2.8 To the maximum extent possible under applicable law, Momentpin will abide by the instructions of all fundraisers and donors in respect of their Personal Information.

2.9 Subject to the Charity paying the Fees in accordance with Section 6 below, Momentpin will provide all Charities, except those on the starter plan, with access to a secure, password and PIN protected account on the Momentpin website where the Charity can view and download details of donations made to the Charity, details of payments made by Momentpin to the Charity and updates on fundraiser and donor details (“Charity Account”), all such information to be provided by Momentpin in strict compliance with:

2.9.1 the applicable Local Privacy Laws as they apply to the relevant fundraisers and donors;

2.9.2 the privacy laws referred to in the country specific terms relevant to the Charity; and

2.9.3 any other privacy laws, regulatory requirements and guidance which are relevant to the processing of Personal Information throughout the world, (together, “Global Privacy Laws”).

2.10 Momentpin will not sell, trade or rent Personal Information to third parties.


Records and Audit Requirements

2.11 Momentpin will keep proper records of all donations and income received and expenses incurred for such period as may from time to time be required by the applicable local governmental revenue body, and maintain records which relate to the Charity and the performance of the obligations hereunder (to which the Charity may, subject to the Global Privacy Laws, have access and take photocopies of at its own expense on request and at reasonable times). For the avoidance of doubt Momentpin will keep complete and accurate records for every donation notified (including payments, refunds and settlement of the funds from charities. These records will be kept for six (6) years from the end of the financial year in which the donation occurred.

2.12 Momentpin will, via the Charity Account, provide each Charity (aside from Charities on the starter plan) with the ability to download reports outlining: the number of donations received, the value of the donations received, and the Transaction Fees deducted from the total donations in accordance with Section 6.
Site Maintenance and Miscellaneous

2.13 Momentpin will comply at all times with all applicable laws and applicable authority, licence, permit or registration requirements.

2.14 Momentpin will undertake planned maintenance and upkeep of the Momentpin Services.
Intermediary.

2.15 Momentpin, as operator of the Momentpin Services, acts as an intermediary between the Charity and the individual users of the Momentpin Services. Whilst the Charity and the individual user information resides on the Momentpin Services, Momentpin does not check or exercise any editorial control over the content of such information, save as required by applicable local laws. In the event that Momentpin is made aware of or has knowledge of any unlawful activity or information on the Momentpin Services, Momentpin shall promptly act to remove or disable access to the information. Momentpin shall not be liable to the Charity as a result of its role as intermediary and is not required to notify the Charity of any such removal or disablement of access to information.

 

3. Charity’s Obligations – General

3.1 The Charity will ensure that all content (including text and images) supplied by it to Momentpin for display on the Momentpin Services or which it itself posts on any of the Momentpin Services (including, in each case, links to any third party sites or content) will not violate any law or regulation or be defamatory, misleading, obscene or breach any intellectual property rights of a third party or breach any right of or duty owed to a third party.
3.2 The Charity will provide written confirmation to Momentpin of any donations (including any GiftAid reclaimed on the same) that it permits Momentpin to reimburse to the donor. Momentpin will not permit refunds without prior written consent from the Charity, unless required by applicable local laws.
3.3 Subject to local applicable laws, the Charity will permit Momentpin to deduct such refunds, and any chargebacks arising, from subsequent donations payable to the Charity. Should no donations arise within one (1) week of the refund or chargeback Momentpin reserves the right to invoice the Charity for the refunds and chargebacks, and the Charity agrees to settle that invoice within one (1) month of the invoice date.
3.4 The Charity will maintain the necessary authority, permit, licence, consent, approval and registration for it to fundraise (and, where applicable, for Momentpin to fundraise on its behalf) in accordance with applicable local laws and if Momentpin needs any such authority, permit, licence, consent, approval or registration for it to fundraise on behalf of the Charity then the Charity will, at no cost to Momentpin, provide all such assistance as Momentpin reasonably requires to assist Momentpin with the same.
3.5 The Charity will inform Momentpin immediately if, for any reason, it:
3.5.1 ceases to carry on operating for charitable purposes;
3.5.2 is found to be engaged in any corrupt or immoral practices;
3.5.3 is subject to any investigation or inquiry which could result in the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws being suspended, revoked or withdrawn; or
3.5.4 ceases to have the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws.
3.6 The Charity will promptly provide any information reasonably requested by Momentpin in order for Momentpin to be able to provide the Momentpin Services to the Charity effectively.
3.7 The Charity will ensure that, in each case where a donor is advised that his/her donation will be used for a specific purpose, appeal or outcome (including but not limited to all Momentpin Campaign pages), the donation is used only for that specific purpose, appeal or outcome.
3.8 The Charity will comply with all applicable laws and regulations in its use of the Momentpin Services.
3.9 The Charity will maintain the security and confidentiality of any passwords and PINs provided by Momentpin for the purpose of accessing the Charity Account and shall not share these passwords or PINs with any third party. Momentpin shall not be liable for and accepts no responsibility for misuse of any Charity Account.
3.10 The Charity represents, warrants and undertakes to Momentpin that:
3.10.1 these Terms and Conditions have been accepted and agreed to by a sufficient number of its duly authorised representatives; and
3.10.2 any documents provided to Momentpin as part of the Charity’s application for registration or maintenance of such registration) have been or shall be executed by a sufficient number of its duly authorised representatives.

 

4. Charity’s Obligations – Data Protection and Direct Marketing

4.1 To the extent that the Charity’s use of the Momentpin services results in access to any Personal Information, the Charity will:
4.1.1 at all times assist with the responsibilities of Momentpin, as a data controller responsible for determining how the Personal Information is processed under the provisions of the Global Privacy Laws;
4.1.2 not do, or cause or permit to be done, anything which may result in a breach by Momentpin of the Global Privacy Laws and comply with all reasonable instructions from Momentpin relating to the processing by the Charity of such Personal Information;
4.1.3 comply with the Local Privacy Laws in respect of the Charity’s collection, use, disclosure or processing of the Personal Information;
4.1.4 abide by the lawful instructions of all data subjects in respect of the Personal Information and not do anything to compromise the security of such information;
4.1.5 not sell, trade or rent Personal Information to third parties;
4.1.6 hold the Personal Information securely and not disclose it to anyone other than Momentpin, as agreed to by the data subject and/or as permitted by Global Privacy Laws;
4.1.7 implement adequate security, technical and organizational measures against all unauthorized, unlawful or accidental access, processing, use, erasure, loss or destruction of, or damage to, Personal Information in accordance with Global Privacy Laws, and abide by Momentpin’s reasonable requirements to ensure the security of the Personal Information as notified to the Charity from time to time;
4.1.8 use Personal Information appropriately and only for the specific purposes as notified to the Charity from time to time, including by way of the applicable privacy policy available on Momentpin’s Website; and
4.1.9 not retain any Personal Information for longer than is necessary.
4.2 In addition to its obligations under Section 4.1 above, if the Charity’s use of the Momentpin services results in access to any Personal Information and the fundraiser or donor has agreed to receive marketing communications from the Charity (as will be reflected in the Charity Account), the Charity will only send marketing communications to the fundraiser or donor to the extent that the fundraiser or donor:
4.2.1 has indicated their preference to receive such communications; and
4.2.2 has not indicated a preference or otherwise asked to stop receiving such communications. This includes the fundraiser or donor clicking an unsubscribe link or registering with any applicable preference service (which the Charity agrees it shall, to the extent it is required to do so, check before sending any communications).
Where use of the Momentpin services results in access to any Personal Information relating to a fundraiser but that fundraiser has not agreed to receive marketing communications from the Charity, as will be reflected in the Charity Account, the Charity shall only communicate with that fundraiser in relation to their specific fundraising page and shall not (unless separate consent is obtained by the Charity) communicate with that person for any other purpose (including marketing).
4.3 The Charity shall be liable for and indemnify Momentpin, its successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by Momentpin which arise (directly or indirectly) out of or in connection with any breach of Sections 4.1 or 4.2 by the Charity.

5. Intellectual Property Rights and Licence

5.1 All intellectual property rights in any material (including text, photographs and other images, trademarks and logos) contained in the Momentpin Services is either owned by Momentpin or has been licensed to Momentpin by the rights owner(s) so that Momentpin can use this material as part of providing the Momentpin Services. Nothing in these Terms and Conditions shall operate as an assignment of any such intellectual property rights.
5.2 The Charity hereby grants to Momentpin, its affiliates and its partners a non exclusive, worldwide and royalty-free licence to use its name and logo in connection with the performance and promotion of the Momentpin Services.
5.3 The licence shall terminate automatically on valid termination of the Charity’s membership in accordance with Section 10 below.
5.4 The Charity shall be liable for and shall indemnify Momentpin, its successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by Momentpin which arise (directly or indirectly) out of or in connection with any third party demand, claim or action alleging infringement of the third party’s intellectual property rights.

6. Fees

In consideration of using the Momentpin Services, the Charity shall pay the subscription and transaction fees set out in this Section 6 to Momentpin (together, the “Fees”).
Subscription Fees
6.1 After the agreed trial period, subscription fee of $5 USD will apply for each charity drive / charity appeal / moment created on the Momentpin platform. The subscription fee shall be debited from the nominated credit card on a monthly basis, until cancelled online by the Charity. Momentpin retains the right to suspend the Charity’s use of the Momentpin Services at any time should collection of this amount not be successful for any reason or the Charity does not pay any other amount due to Momentpin under these Terms and Conditions for any other reason. In this situation, the Charity will only be granted access to the Momentpin Services upon receipt of any outstanding subscription fees.
Transaction Fees
6.2 A transaction fee of 2.5% of the gross amount of every donation will be recovered by Momentpin and Momentpin shall also deduct any applicable payment processing charges incurred in processing a donation.
6.3 The Charity hereby authorises Momentpin, subject to local applicable laws, to deduct the transaction fee together with applicable taxes and payment processing charges from each donation before paying the balance to the Charity in accordance with Section 2.3 above.
6.4 Momentpin Services include an option for a donor to pay the transaction fee (rather than the charity), in which case the full amount of the donation will be paid to the Charity (after the deduction of applicable payment processing charges and sales taxes and Momentpin will retain the transaction fee paid by the donor.
6.5 A additional transaction fee of 5% of the gross amount of the GiftAid claimed by HMRC will be recovered by Momentpin.

7. Liability

7.1 MOMENTPIN DOES NOT, AND NOTHING IN THESE TERMS AND CONDITIONS SHALL ACT TO, EXCLUDE OR LIMIT MOMENTPIN’S OR THE CHARITY’S LIABILITY: (I) FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE; (II) FRAUD; (III) UNDER ANY INDEMNITY CONTAINED IN THIS AGREEMENT; OR (IV) ANY OTHER LIABILITY WHICH MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED.
7.2 The Charity agrees that the MOMENTPIN services ARE provided on an “as is” and “as available” basis and that its use of the MOMENTPIN services is at the Charity’s sole risk. MOMENTPIN does not guarantee continuous, uninterrupted, error or virus free or secure access to our Services and operation of the MOMENTPIN services may be interfered with by numerous factors outside of MOMENTPIN’s control. On that basis, except as expressly set out in these Terms and Conditions, MOMENTPIN does not enter into conditions, warranties or other terms in relation to the MOMENTPIN services, and they are excluded to the fullest extent permissible by law.
7.3 Subject to Section 7.1, in no event shall MOMENTPIN be liable (whether for breach of contract, negligence or for any other reason) for any loss or damage which the Charity may claim to have suffered by reason of its (or any donor, fundraiser or other user) accessing and use of (or inability to access and use) the MOMENTPIN services OR ANY PART OF THEM, including (but not limited to) loss of profits, exemplary or special damages, loss of sales, LOSS OF DONATIONS, LOSS OF GIFTAID, loss of revenue, loss of goodwill, loss of any software or data, loss of bargain, loss of opportunity, loss of use of computer equipment, software or data, loss of or waste of management or other staff time, or for any indirect, incidental consequential or special loss, however arising.
7.4 MOMENTPIN may change the format and content of the MOMENTPIN services from time to time. IN PARTICULAR, The Charity should download the most up to date version of the application including the latest version of these Terms and Conditions, which are available on the Website.
7.5 Subject to the other terms of this section 7, the total aggregate liability of MOMENTPIN arising under or in connection with the Charity (or any donor, fundraiser or other user) accessing and using the MOMENTPIN services and inability to access or use THE MOMENTPIN SERVICES shall be limited to the total fees paid under these Terms and Conditions by the Charity during the preceding 12 months period ending on the date the circumstances giving rise to the liability arose.

8. Insurance

Each party must at all times maintain such adequate insurances as are required by local applicable laws or as are customary for the parties to an agreement of the nature of these Terms and Conditions to maintain in the local market place.
9. Confidential Information
During the term of the Charity’s membership and for a period of seven (7) years thereafter, the parties shall treat as strictly confidential all information about the other which has been acquired as a result of the use of Momentpin’s Services and which is not in the public domain. No party shall use or disclose to any third party such information belonging to the other party without that party’s prior written consent, except where required to do so by applicable local law or regulatory or governmental body. This Section 9 shall survive termination of these Terms and Conditions.

10. Termination

10.1 Either party may terminate this Agreement with immediate effect by written notice if the other party commits a material breach of any term of this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
10.2 In addition to the rights of each party under Sections 1 and 10.1 above, each party will have the right to terminate the use (and provision) of the Momentpin Services with immediate effect by notice in writing when, and at any time after, the other party commits an act of default (as defined below) or commits any act or threatens to do any act the direct result of which is to damage or is likely to damage the reputation of the other party. An act of default by either party shall occur if:
10.2.1 the party is wound up or a liquidator or examiner is appointed;
10.2.2 an administration order is made in relation to the party or a receiver or an administrative receiver is appointed over or an encumbrancer takes possession of or sells all of the party’s assets;
10.2.3 the party makes an arrangement or composition with its creditors generally;
10.2.4 the party ceases or threatens to cease to carry on its business;
10.2.5 any event analogous to the events listed in Sections 10.2.1 – 10.2.4 (inclusive) occurs in any territory in relation to the party or any step towards any such event or analogous event is taken by any person and not promptly dismissed or reversed.
10.3 In addition to its rights under Sections 1, 10.1 and 10.2 above, in the event that the Charity materially breaches any of these Terms and Conditions or if Momentpin reasonably considers that any of the events listed in Sections 3.5.1, 3.5.2, 3.5.3 or 3.5.4 apply (or are likely to apply), Momentpin may, at its sole discretion, without notice and with no liability to the Charity do one or both of the following:
10.3.1 suspend or terminate the Charity’s access to the Momentpin Services;
10.3.2 suspend any payments due to the Charity under Section 2.3.
10.4 To the maximum extent permitted by applicable law Momentpin, in any event, reserves the right to withdraw the Momentpin Services (or any part of them) from public access at any time, at its complete discretion.

11. Suspension of Momentpin Services

Momentpin may, in its sole discretion, without liability to the Charity, suspend the operation of any of the Momentpin Services in full or in part at any time, for example but without limitation for repair or maintenance work or in order to update or upgrade the contents or functionality of the Momentpin Services from time to time.

12. Notices and Entire Agreement

12.1 Notices referred to above should be made in writing and sent by registered post to the addresses given in the applicable country specific terms or, in the case of notices to be sent by or to Momentpin, by email to info@momentpin.com.
12.2 These Terms and Conditions represent the entire agreement between Momentpin and the Charity and supersede and replace any other representations made orally or in writing.

13. Third Party Rights

A person who is not a party to these Terms and Conditions has no right to enforce any term of these Terms and Conditions.

14. Grievances from employees, complaints

handling process and dispute resolution
Grievances from employees
14.1 Any grievances by employees of either party will be dealt with by that party.
Complaint handling procedure
14.2 Momentpin will promptly respond to any complaints from fundraisers or donors concerning the Momentpin Services.
14.3 Momentpin will maintain records relating to complaints it receives.
Dispute resolution
14.4 If a dispute arises under these Terms and Conditions or concerning its subject matter, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute. The nominated senior representatives of both parties must meet within five business days of the notice and try to resolve the dispute in good faith. If such a meeting does not take place or if five business days after the meeting the dispute remains unresolved, either party may pursue its rights at law.
14.5 Despite the existence of a dispute, each party must continue to perform its obligations under these Terms and Conditions.
14.6 Sections 14.4 and 14.5 do not restrict or limit the right of either party to obtain interim, protective or interlocutory relief, or to immediately terminate these Terms and Conditions where these Terms and Conditions provide such a right.

15. Governing Law

These Terms and Conditions and any contractual or non-contractual claim arising out of or in connection with a Charity’s use of the Momentpin Services shall be governed by and construed in accordance with the laws of Scotland, UK. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Courts of Scotland, UK.

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