Snowball Terms of Service
This Terms of Service Agreement (“Agreement”) is accepted, acknowledged and agreed as of the date that an account is approved by Swoop In Technologies LLC (formerly @Pay LLC), doing business as Snowball Fundraising (“Snowball”), a Delaware limited liability company having offices at 5600 Wyoming Blvd NE, Ste 270, Albuquerque, NM 87109, and shall be binding on the person or entity (“Customer”) that made application for the use of the Snowball Products (as defined hereinafter) through the secured Snowball website, snowballfundraising.com.
Foundation of the Business Relationship:
Snowball has developed a patented Two-Touch and Text-to-Give Technology, which is Snowball’s exclusive intellectual property covered under one or more of Snowball’s U.S. patents, patent applications, trademarks, trade secrets or copyrights, currently-existing or future-developed; and
Customer desires to utilize Snowball’s proprietary Two-Touch and Text-to-Give Technology in connection with its business activities; and
Snowball desires to authorize Customer, and Customer desires to be so authorized, to use Snowball’s Two-Touch and Text-to-Give Technology in connection with its business activities.
Views presented by the Customer do not necessarily reflect the opinion of Snowball.
Snowball is not responsible or liable for the content provided by Customer and accepts no responsibility for Customer content or for any loss or damage that may result from the use of Customer content.
Violation of these Terms of Service may result in the suspension or termination of the Customer account.
Therefore, in consideration of the following conditions set forth in this Agreement, the parties agree to the following:
All undefined capitalized terms used in this Agreement shall be defined in the section of this Agreement identified as Schedule A.
Terms of Agreement.
Subject to the terms and conditions of this Agreement, Snowball grants to Customer a non-exclusive license to use the Snowball Products within their selected Snowball Plan in the regular course of Customer’s businesses. Sale, resale, or sublicensing of Snowball Products by Customer to any third party is strictly prohibited without the prior written consent of Snowball.
1) Snowball Fees
Customer shall pay to Snowball those fees and charges applicable to the Plan selected by Customer (during the signup process, or upon upgrade to another Snowball Plan) for the use of the Snowball Products. Such schedule of Snowball Fees shall be made a part of this Agreement as if the full text of such selection(s) was reproduced herein. Customer shall provide a valid credit card at signup (or during account verification) for payment of applicable Snowball Fees.
Customer agrees to pay Snowball for use of the Snowball platform. Customer may be invoiced monthly or annually based on Customer selected plan type. Payment is due no more than 15 days from the invoice date. Customer may be charged transaction fees on the amount of online payments or other revenues that are processed through Snowball based on the customer’s selected plan type. By submitting Customer credit card and billing information to Snowball, Customer authorizes Snowball to charge that card for services rendered and according to the pricing specified in the selected Snowball plan type or a separate addendum to this Agreement, should such an addendum exist. Customer credit card will be charged on the payment date identified on the invoice with no additional action by Customer. Snowball reserves the right to suspend the Customer account in the event that Customer fails to pay the appropriate account fees on time, until such time as proper payment is received. All fees and prices are in US dollars.
A Customer with a plan type that requires monthly payments agrees to pay for a full 12 months. Such a plan type automatically renews on an annual basis for an additional 12 month commitment.
Subscription Fees. Customer shall maintain a valid credit card on their Snowball account to pay the Subscription Fees. The Subscription Fee will be charged automatically: 1) at signup, and 2) on a monthly, quarterly, or annually recurring basis, based on the Plan selected by Customer.
Bucket Fees. Customer shall maintain a valid credit card on their Snowball account to pay any and all Bucket Fees (if applicable) that Customer may incur.
Transaction Fees. Customer shall maintain a valid credit card on their Snowball account to pay any and all Transaction Fees (if applicable) that Customer may incur.
Processing Fees. For Plans with a Managed Account, Customer’s deposits will be net of all merchant account Processing Fees associated with Donor Transactions occurring on the Managed Account and applicable to Customer’s selected Plan.
Chargeback Fees. For Plans with a Managed Account, Customer is responsible for a $15 Chargeback Fee for each disputed Donor Transaction. If a dispute is resolved in Customer’s favor, the Chargeback Fee will be returned.
Cancellation Fees. A Cancellation Fee may be imposed per the terms in Section 10.
Setup Fees. Customer may incur a Setup Fee if their use of the Snowball Products requires an integration not currently available within the existing Snowball framework.
Customer must notify Snowball in writing of any dispute regarding any Snowball Fees within 30 days of the charge.
Snowball shall have the right, at any time, to change, alter, or amend its fee schedule upon 60 days’ written notice to Customer. Any such changes shall be prospective only. In the event that Customer is under an annual or multi-year contract with Snowball, any change in Snowball Fees shall take effect at the commencement of any renewal term and shall not be changed within a contract term.
Snowball shall have the right, at any time, to disable, alter or to pause the customer account. This includes payment processing.
Snowball shall have the right, to contact donors and to keep and maintain donor data during and after the period of the customer agreement. This may include generating separate customer accounts for donors.
Snowball shall never be responsible for any disputes, refunds or returns (or processes associated with same) associated with Customer’s Donor Transactions, including with respect to any chargebacks, credits, or other charge disputes. In the event Snowball suffers any loss, liability or damage relating to the actions of Customer, Snowball may charge Customer’s credit card on file until Snowball has fully recovered the amount of such loss(es). Snowball shall not be responsible for the payment of any applicable sales, use, excise or VAT taxes on fees collected by or paid to Customer. All such amounts shall be the sole responsibility of Customer.
2) Snowball Managed Account
Some Snowball Plans include a Managed Merchant Account for payment processing services of Customer’s Donor Transactions.
By selecting a Plan with a Managed Account and by accepting this Agreement, Customer also agrees to comply with the Stripe Connected Account Agreement. As part of that agreement, Customer agrees that if Customer’s Managed Account balance becomes negative due to refunds or disputes, Customer authorizes Stripe to debit the amount owed from Customer’s Payout Account. Snowball reserves the right to charge Customer’s credit card on file for any negative balance if Customer’s Payout Account is not so authorized.
Refunds, returns and disputes on Customer’s Managed Account remain Customer’s responsibility whether Customer’s Snowball account is active or has been terminated for any reason.
3) Customer’s Obligations
Good Faith Usage of the Snowball Products. Because Snowball expends significant efforts to onboard new technology customers, Customer agrees to use its commercially reasonable efforts to utilize the Snowball Products in connection with its business activities.
Use of Trademarks and Proprietary Notices. During the term of this Agreement, each party hereto may use the trademarks, trade names, logos, designations, graphics, text, and other content used by the other party solely in connection with the advertisement and promotion of the Snowball Products in accordance with each party’s then-current mark usage policies. Each party shall have the right (but not the obligation) to approve any use of such party’s marks by the other party, except that Snowball shall have the right to identify the Customer as a user of the Snowball products during the term of this Agreement. Neither party may remove or destroy any copyright notices, trademarks, or other proprietary markings on the products or materials of the other party.
Snowball provides customers in good standing the ability to download donor data however limits do apply. The customer understands that these are limited to the donors associated with the customer’s account. Snowball does not provide Donor data on tipping. Certain additional financial information like tokens associated with credit card accounts are not included in this service. Additional data may be provided at an additional fee.
Customer will comply with all applicable laws, rules, regulations and ordinances governing Customer’s usage of the Snowball Products, and the security, privacy collection, retention and use by Customer of any personally identifiable information or data collected or captured by Customer in connection with Customer’s use of the Snowball Products.
The Customer, Donor or Bidder agree not use Snowball to:
engage in activity that is sexually explicit, unlawful, misleading, discriminatory or fraudulent;.
advocate for the restriction of rights of any person;.
advocate for the discrimination on the basis of race, color, religion, creed, gender, gender expression, age, national origin, ancestry, disability, marital status, sexual orientation, or military status;.
disseminate hate speech, dangerous speech, publicizing of crime or the promotion to incite violence online or offline; or.
threaten, harass, embarrass, or otherwise cause distress to any person or entity.
Referral Discounts. Discounts may be given based on customer referrals are only given if the referred customer purchases a premium plan at full price.
Donor Refunds, Returns and Disputes. Donor refunds, returns and disputes on made by, or incurred by, Customer remain Customer’s responsibility whether Customer’s Snowball Account is active or has been terminated for any reason. This includes any fees incurred by the Donor refunds, returns and disputes.
Donors. Donors shall be responsible for understanding how their donations are used by the Customer. Snowball is not responsible for any offers or promotions made by the Customer.
Donor Tips. Donor agrees that upon selecting the “Tip” option they authorize Snowball to charge the Donor account the requested amount.
Donor acknowledges that Tips may be charged separately from other transactions and may appear on their account statements as Snowball and not the Customer.
Customer with Essential or Basic accounts agrees to offering the Snowball Products Tip option.
4) Messaging Services
The Snowball Messaging Services are provided by Twilio and are subject to the Twilio Terms of Service, which also includes the Twilio Acceptable Use Policy, the Twilio Privacy Statement and the Twilio Data Protection Addendum (collectively, the “Twilio Agreement”). By agreeing to these Terms of Service, The Customer agrees to be bound by the Twilio Agreement, as the same may be modified by Twilio from time to time. The Customer is responsible for obtaining consents/permissions from Donors and Bidders the Customer wishes to contact via the messaging function of the Services and for ensuring your ongoing compliance with Applicable Data Protection Legislation.
Customers are responsible for ensuring that anyone with access to the Customer’s Snowball Account also comply with the Twilio Agreement where applicable.
Consent to Receive Electronic Messages. By supplying an email or mobile device number the Donor or Bidder agrees to receive emails and/or text messages from Snowball and the Customer. This may include information regarding the auction and the status of donor bids and campaign updates from Snowball and the Customer. If the customer supplies Snowball with a list of Donor or Bidder email addresses or mobile device numbers the Customer confirms that it has obtained permission from the donors to receive updates from Snowball.
(A) Customer agrees to use Snowball for only for lawful purposes. Customer shall notify Snowball within twenty-four hours of any potential Intellectual Property Rights issues and use reasonable efforts to immediately stop any copying or distribution of content that may be subject to Intellectual Property Rights issues.
(B) Customer bears full responsibility for their content. Customer and any person using Customer’s Snowball account shall bear all risk associated with any content or output.
(C) Customer is responsible for obtaining consents/permissions from Donors and Bidders the Customer wishes to contact via the messaging function of the Services and for ensuring your ongoing compliance with Applicable Data Protection Legislation.
(D) All communications utilizing Snowball must contain a valid Customer email address or phone number. Customer may not use Snowball to send email or SMS messages with an invalid “From” or Reply-to” address.
(E) Customer must be responsive to all replies utilizing Snowball including unsubscribe requests. Snowball will automatically include an unsubscribe option in SMS threads and email messaging. Customer must respond to these unsubscribe requests within fourteen calendar days. Customer may not discard or delete any opt-out email until that email address has been deleted from the Customer list(s).
(F) Customer may not impersonate any person. Customer may not communicate under any name or alias Customer is not authorized to use.
(G) Snowball may monitor Customer’s use of Snowball, including content. Snowball has the right, but not the obligation, to require Customer to remove any content utilizing Snowball that Snowball, in its sole discretion, determines to be harmful to its business reputation.
(H) Snowball may monitor any and all areas of Snowball to oversee compliance with this Agreement. Customer will so inform its Donors and Bidders that their use of Snowball constitutes consent to such monitoring.
5) Auction Terms and Conditions
(B) The Customer confirms they have the legal right to auction the Lots they offer. Snowball is not responsible for ownership disputes for the Lots offered by the Customer.
(C) All auctions are open only to people aged 18 or over, who unconditionally agree to be bound by the laws of applicable legal jurisdictions under United States Federal and State courts.
(D) All bids are final and binding. Bids can only be removed or updated by the Customer. If a bid is made in error, the Bidder must contact the Customer for any changes to the bid.
(E) Bids must be in US Dollars and be received by the Customer by the time indicated on the Auction by the Customer. All winning bids must be above the minimum or reserve price identified in the Auction for the item unless waived by the Customer.
(F) A bid is a legal commitment to make a payment. A successful Bidder will be notified by email and/or text message and is obligated to make payment at that time.
(G) Incomplete, late, unreceived bids, and bids below the reserve for the Lot being bid for will not be accepted.
(H) The successful bid for any single Lot will be the highest bid received by the closing date and time. In the event that two or more bids equal the highest bid, the Lot shall be awarded to the bid received first.
(I) The Customer reserves the right to extend or restart an auction in the case where it is unfeasible for other Bidders to respond with counter bids.
(J) Successful Bidders must make their payment for the relevant Lot using a method determined by the Customer.
(K) In the event of the Customer being unable to contact a winning Bidder within seven days of the closing of the auction, or of the payment not being received within 14 days of a winning Bidder being notified, the Customer reserves the right to award the Lot to the next highest Bidder. The Customer reserves the right to carry on awarding the Lot to the next highest Bidder until the reserve is reached. Alternatively the Customer reserves the right to relist the auction.
(L) Refunds on payments are the responsibility of the Customer.
(M) Snowball and the Customer each reserves the right to exclude a Bidder from auctions or other donations.
(N) The Customer reserves the right, in its sole discretion, to withdraw the Lot from the auction.
(O) The Lots as described are available on the date of publication and are subject to availability. The availability of the Lot is the responsibility of the Customer.
(P) Lots are not transferable and there are no cash alternatives. The Customer and Snowball are not responsible for additional expenses related to the Lot. For example, it is the responsibility of the successful Bidder for a vacation package to make sure they have a valid passport and travel insurance and to obtain any necessary vaccinations and visas for their trip.
(Q) All Lot descriptions are provided by the Customer and, as such, Snowball takes no responsibility whatsoever for the accuracy of descriptions. It is the responsibility of the Bidder to check with the Customer for any details or descriptions of any Lot.
(R) The Customer reserves the right to change, alter or remove any description or Lot from the auction at any time.
(S) Events may occur that render an auction itself impossible due to reasons beyond the Customer’s or Snowball’s control. Accordingly, the Customer or Snowball may, at its discretion, vary or amend the auction and all parties including the Bidder agree that no liability shall attach to the Customer or Snowball as a result thereof.
(T) The Customer will run the auction in a fair and consistent manner; however, for the avoidance of doubt, the Customer’s decision is final and for any bid to be counted must be received by the Customer before the close of the auction. It is the responsibility of the Bidder to ensure their bid is timely received.
(U) All taxes, other governmental charges or any other fees associated with the Customers auction or the winning bid will be the responsibility of the Bidder to pay. Bidders should consult a tax adviser if there are any questions related to tax impacts of a bid.
(V) Snowball is not responsible for shipping, delivery and/or maintenance of an auction Lot.
(W) Snowball is not responsible for determining the fair market value of any auction Lot.
(X) Snowball will provide receipts for payments of winning bids to those Bidders that process their payment with Snowball. Snowball cannot provide receipts for cash or checks sent to the Customer directly.
(Y) Snowball reserves the right to remove auctions or Lots or to redact or place a hold on an auction or on individual Lots at any time.
(Z) Snowball is a technology portal only and is not acting as an auctioneer. Snowball’s role is to report on bids to the Customer. Snowball is not involved in the actual transaction between Customer and Bidder, and, as such, Snowball has no control over the quality, the accuracy of the listings, safety or legality of the items advertised, the ability or right of the Customer to auction an item or the ability of a Bidder to make the payment required to acquire the Lot. Therefore, Snowball cannot guarantee that two parties will actually complete a transaction. The role of auctioneer is the responsibility of the Customer.
(AA) Customer and Bidder agree to indemnify and hold harmless Snowball, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Snowball site or application, including but not limited to your violation of this Agreement.
6) Intellectual Property Rights
Customer hereby recognizes that Snowball retains all Intellectual Property Rights in the Snowball Products and Confidential Information attributable to Snowball.
Customer shall not: (a) use, reproduce, distribute or permit others to use, reproduce or distribute any of Snowball’s Intellectual Property Rights for any purpose other than as specified in this Agreement; (b) make Snowball’s Intellectual Property Rights available to unauthorized third parties; (c) rent, electronically distribute, timeshare, or market Snowball’s Intellectual Property Rights by interactive cable, remote processing services, service bureau or otherwise; or (d) directly or indirectly modify, reverse engineer, decompile, disassemble, or derive source code from Snowball’s Intellectual Property Rights except as expressly authorized by Snowball.
Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall be construed as:
(a) a warranty or representation by Snowball as to the validity or scope of any of the Snowball Products; or
(b) a warranty or representation that use of the Snowball Products will be free from infringement of any patents other than those under which licenses have been granted hereunder; or
(c) an agreement to prosecute actions or suits against third parties for infringement or conferring any right to bring or prosecute actions or suits against third parties for infringement; or
(d) conferring any right not expressly set forth herein to use in advertising, publicity, or otherwise, any trademark, trade name, or names, or any contraction, abbreviation, or simulation thereof, of Snowball; or
(e) conferring by implication, estoppel, or otherwise, upon Customer, any license or other right under any patent, copyright, mask work, trade secret, trademark, or other intellectual property right except the licenses and rights expressly granted hereunder; or
(f) an obligation to furnish any technical information or know-how related to the Snowball Products.
Snowball disclaims all warranties, express or implied, with respect to the Snowball Products, including, without limitation, any implied warranties of merchantability, fitness for any particular purpose, non-infringement, and title.
The parties hereto each covenant and agree to indemnify and hold harmless the other party, such party’s parent or affiliates, and their respective officers, director, employees and permitted assigns, against any direct liabilities, claims, damages, losses or expenses, arising from any legal action, claim, demand or proceedings brought against the other party as a result of any misrepresentation, breach of warranty or non-fulfillment of a covenant of this Agreement by the other party (collectively a “Claim”); provided, that this provision shall not apply if such claim arises out of (a) an act of fraud, embezzlement or criminal activity by the party claiming indemnity, (b) gross negligence, willful misconduct or bad faith by the party claiming indemnity, or (c) the failure of the party claiming indemnity to comply in any material respect with, or to perform in any material respect its obligations under this Agreement.
Each party shall promptly notify the other of any threat of a claim that such party becomes aware of and that may give rise to a request for indemnification pursuant to this Section.
8) Limitations of Liability
Under no circumstances shall either party hereto be liable to the other party for indirect, incidental, consequential, special or exemplary damages (even if advised of the possibility of such damages), such as, but not limited to, loss of revenue, profits, costs of delay, costs of lost or damaged data or documentation, or such party’s liabilities to third parties arising from any source. Under no circumstances shall the entire liability of Snowball under this Agreement, with respect to any subject matter contained in or contemplated by this Agreement under any contract, negligence, strict liability or other legal or equitable theory, exceed lesser of: (x) one hundred thousand dollars ($100,000); and (y) the aggregate Subscription Fees paid or payable to Snowball by Customer during the twelve-month period immediately prior to the date the cause of action arose.
9) Term and Termination
The term of this Agreement (the “Term”) shall commence on the date Customer’s account was first created, or in the case of an account upgrade, on that date, and shall continue in full force and effect for a period of one (1) year. This Agreement shall be automatically renewed for successive monthly, quarterly, or one-year terms without any further action of either party hereto unless written notice of intent to terminate this Agreement is given to the other party not less than 30 days prior to the termination date of the then-current term. Either party may terminate this Agreement immediately upon written notice if the other Party is in breach or default of any material obligation contained in this Agreement or any attachment or addendum referenced herein and fails to cure such breach or default within thirty (30) days after the receipt of written notice to that effect. The rights and remedies provided in this Section are not exclusive and are in addition to any other rights and remedies provided by law or this Agreement.
10) Refunds For Account Creation
All sales are final. No refunds are given for account creation charges or any other fees that the Customer may have incurred.
11) Refunds For Account Renewal
All charges are final 15 days after the date of account renewal. Refund requests for account renewal made within (15) days of renewal may be entitled to a refund of the immediately preceding license fees paid, less a cancellation fee of $50, and assessment of any unpaid Transaction Fees and/or Bucket Fees that Customer may have incurred. Refunds for the cost of account renewal may be given up to 2 days after the renewal date.
No refund will be made for any cancellation and Customer will be assessed any unpaid Transaction Fees and/or Bucket Fees that Customer may have incurred prior to termination of their account. Should Customer so request, Customer’s account will remain in good standing and be available for use until the end of the paid term. If Customer chooses to continue using their Snowball account, Customer remains responsible for, and will be charged, for any and all Transaction Fees and Bucket Fees, if applicable, and agrees that any such Fees incurred may be aggregated and charged after the expiration of the paid term. Account access and usage would terminate at the expiration of the paid term with no further License Fees charged.
No refund will be made of any Setup, Processing, Bucket, or Transaction Fees incurred prior to cancellation.
Refunds, returns and disputes on Customer’s Managed Account remain Customer’s responsibility whether Customer’s Snowball account is active or has been terminated for any reason.
To the extent that a party hereto has access to personally identifiable information of their customers through the use of the Snowball Products, such party shall take commercially reasonable steps to protect the privacy of such customers. Individual customer information will be considered the Confidential Information of the party that has collected such information. Snowball retains the right to share and/or market anonymous and aggregate consumer data that it collects through the use of Snowball Products. Snowball will not sell or distribute personal customer data that identifies or reasonably can be used to identify individual customers or users of Snowball Products.
The parties hereto agree to maintain the confidentiality of all Confidential Information shared by the parties and not generally known to the public.
14) Audit Rights
Snowball shall keep records in accordance with its customary accounting practices, containing information reasonably necessary for the purpose of calculating any Snowball Fees under this Agreement. Such records that relate solely to such purposes shall be made available by Snowball, upon reasonable notice, during the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement. Records will be made available for inspection by an independent certified public accountant selected by Customer or Snowball solely for the purpose of determining any amounts owed hereunder. Customer shall bear all costs in the conduct of any such audit. In no event shall an audit under this Section be requested by Customer more frequently than once every 12 months.
15) General Provisions
Assignment. Neither party may assign, delegate, or transfer this Agreement, or any of its rights or duties hereunder, without the prior written consent of the other party. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Notwithstanding the foregoing, Snowball may assign its rights and duties hereunder in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of Snowball.
Governing Law. This Agreement shall be construed and regulated under and by the laws of the United States of America and the State of New Mexico without regard to conflicts of law and principles thereof. The exclusive venue for any action arising out of this Agreement shall be the federal or state courts located in Albuquerque, New Mexico (and any appellate courts thereof), and each party agrees to submit to the personal jurisdiction of each such court.
Independent Contractors. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
Modification and Waiver. Any waiver of or amendment to the terms of this Agreement will be effective only if made in writing and signed by an authorized and duly empowered representative of each of the parties hereto. No failure to exercise, and no delay in exercising, any right hereunder will operate as a waiver of that right, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder. Notwithstanding the foregoing, Snowball shall have the right to amend or revise this Agreement without Customer’s consent to reflect changes in Snowball’s procedures and policies regarding payment methods, models, or security features, applicable laws, rules or regulations, or the rates charged for the Snowball Products as permitted by this Agreement; provided, that no amendment of this Agreement shall adversely affect in any material way the use of the Snowball Products by Customer without the written consent of Customer, unless such amendment is required by applicable law. For purposes of this Section, an adjustment or change in the Snowball Fees shall not be deemed or construed as an adverse effect hereunder.
Limitation of Action. Any legal action arising out of this Agreement shall be barred unless commenced within one year of the act or omission giving rise to the action.
Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter, whether written, oral, or implied.
Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors, and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. In any legal action brought by one party against the other and arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
Severability. The parties hereto intend all provisions of this Agreement to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provision is too broad to be enforced as written, the parties hereto intend that the court should reform the provision to such narrower scope as it determines to be enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision were never a part hereof; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance, except to the extent such remaining provisions constitute obligations of another party to this Agreement corresponding to the unenforceable provision.
Electronic Signature Valid and Binding. By selecting the “Sign Up” button, you are signing this Agreement electronically. You agree that your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting “Sign Up” you consent to be legally bound by the terms and conditions of this Agreement. You further agree that your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature, acceptance and agreement as if actually signed by you in writing.
“Snowball” shall mean Swoop In Technologies LLC (formerly @Pay LLC), doing business as Snowball Fundraising, a Delaware corporation.
“Snowball Fees” shall mean all License Fees, Bucket Fees, Transaction Fees, Setup Fees, or any other fees that Snowball charges Customer for the use of the Snowball Products.
“Snowball Products” means any and all commercially available technology of Snowball, including Snowball’s proprietary Two-Touch Technology, integrating or in any way utilizing Snowball’s Intellectual Property Rights or any Enhancement and used by or for the benefit of Customer or Customer’s customers, donors, bidders or others pursuant to the terms of this Agreement, any amendments or addendum hereto, or any other agreement by and between such parties and Snowball, including any Terms of Service that may be found on Snowball’s web site from time to time.
“Two-Touch Technology” means Snowball’s proprietary technology that uses Snowball’s patented method of secure email messaging to validate Customer Transactions.
“Agreement” shall have the meaning set forth in the recitals hereof.
“Account Creation” refers to the first time sign up by the customer for the Snowball service.
“Account Renewal” refers to the automatic annual charge one year after your initial sign up and for the years to follow.
“Managed Account” refers to a Snowball plan that includes payment processing services.
“Bid” refers to an offer for a Lot.
“Bidder” refers to a user that participates in an auction by offering amounts they are willing to pay for a given Lot and and is obligated to pay for the Lot if their offer is successful.
“Bucket Fees” may apply to Plans with a Managed Account and shall mean a fee assessed when a Customer’s aggregate Customer Transactions reaches the threshold defined in Customer’s Plan. No more than four (4) Bucket Fees will be assessed within a Plan year.
“Confidential Information” shall mean confidential or other proprietary information that is disclosed by one party to the other, including, without limitation, hardware and software code and designs, product specifications and documentation, client names, business and product plans, pricing information, email lists, customer data (including the identity, demographic, reporting and contact information for such customers) and other confidential business information. Confidential Information does not include information that: (a) was in the receiving party’s possession without restrictions of confidentiality prior to receipt from the discloser; (b) is or becomes public knowledge because of events other than an act or failure to act by the receiving party or anyone under the receiving party’s direct or indirect control; or (c) is or has been independently developed by the receiving party, provided that such development was accomplished by the receiving party or on its behalf without the use of, or any reference to, the Confidential Information of the disclosing party.
“Customer” shall mean the party identified in the recitals hereof.
“Donor” shall mean any consumer, customer, or donor of Customer.
“Donor Transaction” means any attempted transaction, including, but not limited to, the purchase of goods or services or an electronic transfer of funds for the purpose of donation or otherwise, by a Donor of Customer utilizing any Snowball Product, whether or not that transaction succeeds and the Donor is charged, and whether or not on a Customer’s Managed Account or Customer’s own merchant account.
“Enhancement” means any modification, enhancement, or derivation of the Snowball Products. An “Enhancement” shall include, but shall not be limited to, any design, redesign, modification, enhancement, or derivation of a product or an Integrated Product that would permit such product or Integrated Product to function or operate in a manner similar to or consistent with products or Integrated Products utilizing technology embedded in or comprising the Snowball Products.
“Integrated Product” means any software, solution, database, or other technology created or compiled, or that contains, utilizes, or embodies in any way the technology embedded in or comprising the Snowball Products.
“Intellectual Property Rights” means: (a) all right, title, and interest in and to all United States and foreign Letters Patent and all filed, pending, or potential applications for Letters Patent, including any reissue, reexamination, extension, divisional, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (b) all right, title, and interest in and to all trade secrets, and all trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (c) all right, title, and interest in and to all mask works, copyrights, other literary property, or authors rights, whether or not protected by copyright or as a mask work, under common law, state law, federal law, and laws of foreign countries; and (d) all right, title, and interest in and to all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names under common law, state law, federal law, and laws of foreign countries.
“Lot” means the article or service offered in the auction.
“Payout Account” applies to Plans with a Managed Account and shall mean the bank account Customer enabled on their Managed Account for receiving funds from Donor Transactions processed on Customer’s Managed Account.
“Plan” means the complement of Snowball Products selected by Customer at signup, or selected at account upgrade..
“Processing Fees” applies to Plans with a Managed Account, and means credit card processing costs applicable to the Plan selected by Customer (e.g., 2.XX% and $0.3X).
“Subscription Fee” means the automatically recurring monthly, quarterly, or annual license fee for the use of the Snowball Products based on the Plan chosen by Customer.
“Term” shall have the meaning set forth in Section 7 hereof.
“Terms of Service” means this Agreement and any other terms and conditions governing the usage of the Snowball Products, including the Stripe Connected Accounts Agreement, if applicable, as such may be amended from time to time.
“Tip” shall mean an additional payment, apart from a donation, that the Donor agrees to pay to Snowball and not the Customer, which helps Snowball offer its products to the Customer at no or with a low annual fee.
“Transaction Fee” means the cost per transaction, if applicable, for each Donor Transaction, whether on Customer’s Managed Account, or Customer’s own merchant account.
Last Updated August 2021