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 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 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 Technology in connection with its business activities.
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.
- 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.
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 8.
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 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.
- 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.
- 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 Customer as an end-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.
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.
Refunds, Returns and Disputes. 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.
- 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.
- 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.
- 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.
- Refunds. Account cancellation and refund requests made within three (3) days of account creation or 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.
Account cancellation and refund requests made within thirty (30) days of account creation or renewal may be entitled to a refund of the immediately preceding license fees paid, less a cancellation fee of $100, and assessment of any unpaid Transaction Fees and/or Bucket Fees that Customer may have incurred.
No refund will be made for any cancellation and refund request made after thirty (30) days of account creation or renewal, 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.
- Privacy. 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.
- Confidentiality. The parties hereto agree to maintain the confidentiality of all Confidential Information shared by the parties and not generally known to the public.
- 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.
- 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 “I Accept” 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 “I Accept” 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, 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.
“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.
“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.
“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.