PROJECT SUNFLOWER AID SOCIETY DONOR AGREEMENT
(Last Updated: May 11, 2022)
ARTICLE 1– DONATION DISBURSEMENT AND TRANSACTION FEES
1.1 Donation Funds
All Donations made through the Project Sunflower Aid Society Support are made directly to Project Sunflower Aid Society (who issues funds according to current needs as agreed by the Board). Project Sunflower Aid Society then transfers the donated amount (minus administrative service fee) to the fulfil the purpose of support. All Donations, regardless of method of collection, will be held by Project Sunflower Aid Society for the benefit of Client and will be disbursed according to Board consensus.
1.2 Transaction Fees
Project Sunflower Aid Society is a not-for-profit Society incorporated in the Province of Alberta. To support our service offerings and in consideration for the Support, Client will pay to Project Sunflower Aid Society the applicable Transaction Fees. Project Sunflower Aid Society reserves the right from time to time to change the Transaction Fees as well as to introduce new fees and charges. Project Sunflower Aid Society will use commercially reasonable efforts to notify Client of any changes to its Transaction Fees or the introduction of new fees by email and will post its current Transaction Fees on the Site. Changes to the Transaction Fees will be published on the Site in advance of the effective date of the change and will become effective as of the date indicated as the “effective date” in such posting.
1.3 Return of Donation
In the event that a Donation is rejected or reversed following receipt by Project Sunflower Aid Society for any reason, including payments made in error, credit card chargebacks, NSF, refund requests, suspected or actual fraud, in whole or in part, then:
if the Donation rejection/reversal request occurs prior to disbursement then Project Sunflower Aid Society will simply stop payment of the Donation prior to disbursement;
1.4 Client Banking Information
In order to use Customizable Donations Forms, Client is required to duly complete and return the Banking Information Form to Project Sunflower Aid Society. Although not required, it is recommended that Clients who wish to receive only the Charity Profile Support also duly complete and return the Banking Information Form.
For the purposes of Donation transfers and returns, Client authorizes Project Sunflower Aid Society to make debits and credits solely in accordance with this Agreement and the Recurring Donation Form by using an electronic funds transfer system and/or third-party software facilitating financial transfer, such as Wix Forms.
Client is responsible for promptly notifying Project Sunflower Aid Society in writing of any change in Client’s account information. New donation submissions will supersede the original financial data and any subsequent changes to the original banking information upon receipt. Previous banking information will be destroyed. The information in the Donation Submission will be treated as Confidential Information under this Agreement.
Project Sunflower Aid Society is responsible for determining whether any taxes, including Goods and Support Tax, Harmonized Sales Tax or provincial sales tax applies and will be responsible for remitting all such taxes to the appropriate authorities out of the funds collected from Client.
ARTICLE 2 – CLIENT OBLIGATIONS
2.1 Communication with Donors and Donor Information
Without limiting the generality of the foregoing, Project Sunflower Aid Society will not include any Donor Information on any donor list sold or provided by Client to any third party. In addition, if Project Sunflower Aid Society communicates the contact preferences (for example, an “unsubscribe” request) of a Donor, Project Sunflower Aid Society will promptly comply with such contact preferences.
2.2 Use of Support
Client will use the Support solely in accordance with Project Sunflower Aid Society’s officially published mandate. Project Sunflower Aid Society agrees not to use the Support in connection with any of the following activities: (a) sending and relaying spam, impersonating another person or entity, falsely misrepresenting Client’s identity or Client’s affiliations; (b) any illegal or fraudulent purposes; (c) transmitting or distributing any objectionable material that is illegal, harassing, defamatory, tortious, sexually explicit, obscene, hateful, or racist; (d) transmitting material that contains computer programs including but not limited to viruses, Trojan horses, worms, time bombs, and cancel bots, which are designed to disrupt, destroy, harm, or damage the operation of the Site or any computer.
Project Sunflower Aid Society reserves the right at any time, in its discretion, to remove or modify any Client Content that Project Sunflower Aid Society deems to be in violation of this Agreement or to be offensive, harmful to the business or reputation of Project Sunflower Aid Society or the goodwill associated therewith.
2.3 Use of Project Sunflower Aid Society Donation Forms
In the event that Project Sunflower Aid Society chooses to embed Donation Form(s) on its website, or allow supporting organizations to embed Donation Forms(s) on their website: (a) Project Sunflower Aid Society agrees that such forms will only be embedded on a secure webpage; (b) such webpages will be exclusively and only hosted on servers located in Canada or the United States; (c) Project Sunflower Aid Society will monitor and promptly remove Donation Form(s) hosted on supporting organization servers on request by Project Sunflower Aid Society; (d) Project Sunflower Aid Society may request a printout sample of the placement of such Donation Form(s) on supporting organization’s website for approval by Project Sunflower Aid Society.
A supporting organization is an organization that is fund raising in support of Project Sunflower Aid Society and has been provided with an embedded Donation Form(s) for this purpose by Project Sunflower Aid Society.
ARTICLE 3 – INTELLECTUAL PROPERTY
Except for the rights expressly granted under the Agreement, as between Project Sunflower Aid Society and Client:
Project Sunflower Aid Society retains all right, title and interest in and to the Site, and the Support, including, without limitation, all Intellectual Property Rights therein (“Project Sunflower Aid Society Property”).
ARTICLE 4 – REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Project Sunflower Aid Society
Project Sunflower Aid Society represents, warrants and covenants that:
Project Sunflower Aid Society is not a charity registered either as a charitable organization, private foundation or public foundation or other qualified donee, as those terms are defined under section 149.1 of the Income Tax Act (Canada), as amended;
Project Sunflower Aid Society fully complies and will at all times continue to fully comply with all applicable laws, statutes and regulations, including, without limitation, the Income Tax Act (Canada), as amended, all other taxation, privacy laws and anti-spam legislation;
Client has full power and authority to enter into this Agreement and the execution and performance of its obligations under this Agreement does not conflict with:
any laws, rules, regulations or governmental guidelines to which Client is subject; or
any other agreements to which Client is a party or to which Client is otherwise bound;
any Client Content complies with all applicable laws, statutes and regulations including, without limitation, all slander, defamation, libel, obscenity and privacy laws;
the use of the Client information by Project Sunflower Aid Society as permitted under the Agreement does not violate the rights of any third party including, without limitation, any Intellectual Property Rights;
Client has provided accurate information to Project Sunflower Aid Society with respect to the information necessary to provide receipts including the amount of the Donation and any applicable Canada Revenue Agency guidance, where required; and
Client has taken reasonable safeguards to prevent malicious conduct on its website when using Project Sunflower Aid Society Site or Support including Project Sunflower Aid Society Donation Forms.
ARTICLE 5 – WARRANTY DISCLAIMER, INDEMNITY AND LIMITATION OF LIABILITY
5.1 Warranty Disclaimer, Indemnity and Limitation of Liability
In view of Project Sunflower Aid Society’ non-profit, charitable status, and in consideration of Project Sunflower Aid Society’ agreement in acceptance of donation from Client, Client acknowledges and agrees that:
In no event will Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors be responsible for losses, damages or expenses of any kind whatsoever caused to Client, Donors or any third party relating to or arising in any manner under or in connection with this Agreement or the Support. Without limiting the generality of the foregoing, in no event will Project Sunflower Aid Society, its licensors or suppliers be liable for damages for loss of profits, loss of data or information, business interruption or other pecuniary loss relating to or arising in any manner under or in connection with this Agreement or the use of the Support or the Site or the ability or inability to use the Support or the Site or the ability or inability of the Support or the Site to be used with any software, systems or equipment of Client or the failure by Project Sunflower Aid Society to provide any or all of the Support in a timely or proper manner or at all. If the exclusion of liability set out in this Section 5.1(a) is held to be unenforceable or inapplicable for any reason, in no event will the total cumulative liability of Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors in connection with this Agreement or the Support exceed the total sum of Transaction Fees paid by Client to Project Sunflower Aid Society in the six months preceding the date on which the applicable claim arose.
In no event will Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors be liable to Client, Donors or any third party for any special, indirect, incidental, or consequential damages, even if Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, licensors, subcontractors or suppliers have been advised of the possibility of such damages.
The Support and the Site are provided to Client on an “as is” basis without representations, warranties or conditions of any kind. As between the parties, Client assumes responsibility for determining the suitability of the Support or the Site, for the use of the Support or Site and for the results obtained. If Client is using the Site for Events, Client is responsible for determining whether any taxes, including Goods and Support Tax, Harmonized Sales Tax or provincial sales tax applies and Client will be responsible for remitting all such taxes to the appropriate authorities out of the funds collected by Client. Project Sunflower Aid Society disclaims all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility or that the Support or the Site are secure, or error free or will operate without interruption or will be provided in a timely or proper manner or at all.
5.2 Scope of Limitation and Disclaimer
The foregoing limitations and disclaimers apply regardless of the causes or circumstances giving rise to the loss, damage, claim or liability, even if such loss, damage, claim or liability is based on negligence or any other tort, strict liability, breach of contract including, without limitation, breach of a fundamental term, product liability or infringement of any intellectual property right.
5.3 Client Indemnity
Client will indemnify and hold Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, suppliers, subcontractors and licensors harmless from and against any losses, damages and expenses (including legal fees) (“claims”) arising out of or relating to:
Any claims or demands made by Donor or any third party due to or arising out of Client’s use of the Support or the Site, unless such claim is directly and solely caused by the gross negligence or the intentional or wilful misconduct of Project Sunflower Aid Society, its affiliates, directors, officers, agents, employees, subcontractors or licensors;
Client’s violation of any of the terms and conditions of this Agreement, including, without limitation, any of Client’s representations and warranties; and
Client’s violation of any applicable laws, including, without limitation, the Income Tax Act (Canada) as amended, all other taxation, privacy laws and anti-spam legislation.
ARTICLE 6 – TERMS AND TERMINATION
The term of this Agreement will begin on the Effective Date and will continue until this Agreement is terminated as provided for herein (the “Term”).
6.2 Termination by Project Sunflower Aid Society
Project Sunflower Aid Society may terminate this Agreement, with or without cause and without paying any termination fees, charges or other amounts, at any time immediately upon written notice to Client.
6.3 Termination by Client
Client may terminate this Agreement, with or without cause and without paying any termination fees, charges or other amounts, at any time immediately upon written notice to Project Sunflower Aid Society.
6.4 Post-Termination Obligations
Unless otherwise requested in writing by Client that Client wishes to deactivate its Client Profile, or at the discretion of Project Sunflower Aid Society, Project Sunflower Aid Society may maintain the Client Profile on the Site following the termination of this Agreement, including for Project Sunflower Aid Society’ audit or other record retention purposes.
ARTICLE 7 – CONFIDENTIALITY AND PRIVACY
7.1 Confidential Information
For the purposes of this Agreement, “Confidential Information” means, with respect to either party, the non-public, confidential, secret or proprietary material and information of such party that has been or may be, directly or indirectly, disclosed to, or come into the possession or knowledge of, the other party, whether in verbal, written, graphic, electronic or other form, in connection with or as a result of entering into this Agreement.
Each party will maintain the confidentiality of all Confidential Information of the other party and will not release, disclose, use, make available or copy any such Confidential Information without the prior written consent of the disclosing party except as necessary to carry out its obligations under this Agreement. Each party may disclose the other party’s Confidential Information to its employees, agents or subcontractors on a need-to-know basis only and subject to entering into a non-disclosure agreement. Each party will not use in any way, for its own account or for the account of any third party, except as expressly permitted by, or required to achieve the purposes of this Agreement, or disclose to any third party (except to that party’s legal advisor, accountants or other advisors as reasonably necessary), any of the other party’s Confidential Information, and will take reasonable precautions to protect the confidentiality of such Confidential Information, at least as stringent as it takes to protect its own Confidential Information. Excluded from this obligation of confidentiality is Confidential Information which:
is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
becomes known to the receiving party directly or indirectly from a third party source not having an obligation of confidentiality to the disclosing party;
becomes publicly known or otherwise ceases to be secret, proprietary or confidential, except through a breach of this Agreement by the receiving party;
is independently developed by the receiving party; or
is required to be disclosed by a government authority or by law, provided that the receiving party gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
All donations made through Project Sunflower Aid Society (whether through our Site or other means) are made directly to Project Sunflower Aid Society (who cannot issue donors tax receipts). Project Sunflower Aid Society collects and processes the donor’s personal information submitted through the Website. In this sense, Project Sunflower Aid Society is a data controller in relation to the processing of such Personal Information. Project Sunflower Aid Society will process such Personal Information as a data processor on Client’s behalf (as the terms “controller” and “processor” are defined under the EU General Data Protection Regulation – “GDPR”).
Moreover, at the donor’s express request, Project Sunflower Aid Society may also disclose Personal Information about its individual donors.
Project Sunflower Aid Society shall establish and maintain reasonable safeguards against the unauthorised access, disclosure, copying, use or modification, destruction, loss, theft, or alteration of Donor personal Information, including administrative, operational, organizational, technical and physical safeguards, designed to: (a) ensure the security and confidentiality of Personal Information that is processes pursuant to this Agreement; (b) protect against any anticipated threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized or unlawful access, use, disclosure, alteration or processing of such Personal Information; (d) protect against accidental loss or destruction of, or damage to, such Personal Information; (e) provide adequate security measures for any transmission of such Personal Information; and (f) provide for the proper disposal or destruction of such Personal Information (“Security Safeguards”)
In the event of a breach of any Security Safeguards that relates to the Personal Information of Donors, Project Sunflower Aid Society will promptly report such incident to Donors.
Project Sunflower Aid Society will honour the contact preferences of Donors as communicated from time to time to Project Sunflower Aid Society.
Without limitation to any other rights or remedies available to Project Sunflower Aid Society at law or in equity, failure by Client to comply may result in the immediate termination of this Agreement by Project Sunflower Aid Society.
ARTICLE 8 – GENERAL PROVISIONS
8.1 Changes to Support
Project Sunflower Aid Society reserves the right to change, modify or discontinue any or all of the Support and to suspend the Support for maintenance and testing purposes at any time and from time to time upon written notice to Client.
8.2 Relationship of the Parties
Nothing contained in this Agreement will be deemed or construed by the parties hereto or any third party to create the relationship of partnership or joint venture between the parties, it being understood that the parties will at all times remain independent parties contracting for Support.
This Agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party will assign or transfer this Agreement or any of its rights under this Agreement, whether directly or indirectly, without first obtaining the prior written consent of the other party, such consent not to be unreasonably withheld.
All notices or other communications pursuant to this Agreement will be in writing and will be delivered personally, sent by registered mail (with postage prepaid) or transmitted by e-mail to the intended recipient at the address provided in this Agreement or to such other address as either party may have furnished to the other party in writing in accordance herewith. Any such notice or communication will be deemed to have been received on the date on which it was delivered or transmitted by electronic communication, or on the third business day next following the mailing of such notice.
8.5 Governing Law
This Agreement will be governed by the laws of the Province of Alberta and the laws of Canada applicable therein. Each of Client and Project Sunflower Aid Society hereby irrevocably attorn to the jurisdiction of the Alberta courts in respect of any matter concerning this Agreement.
8.6 Entire Agreement
This Agreement and the documents referred to or incorporated herein by reference contain the entire agreement between Project Sunflower Aid Society and Client with respect to the subject matter thereof and supersede all prior agreements, negotiations and representations, written or oral, relating to its subject matter. Except as provided in this Agreement and in the schedules attached hereto and the documents referred to or incorporated into this Agreement by reference, there are no conditions, representations, warranties, undertakings or agreements between the parties whether direct, indirect, collateral, express or implied.
This Agreement cannot be modified, varied, amended or supplemented in any way by Client. Project Sunflower Aid Society reserves the right to modify, vary, amend or supplement this Agreement, including changes to Transaction Fees, Disbursement Schedule, Support or other fees or charges, at any time and from time to time. Project Sunflower Aid Society will post the current version of this Agreement on the Site and each such change will be effective upon posting on the Site or upon the date designated by Project Sunflower Aid Society as the “effective date” (if any). Client’s continued use of the Support following any such change constitutes Client’s agreement to be bound by and its acceptance of this Agreement as so modified.
If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be severed from this Agreement and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the Parties.
8.9 Force Majeure
Neither party will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such party whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any of our subcontractors or any third party providers of goods or Support to us, labour disruptions, blackouts, embargoes), except that non-payment of amounts due under this Agreement will not be excused by this provision.
8.10 No Waiver
Any waiver by Project Sunflower Aid Society of any of the provisions of this Agreement will not constitute a waiver of any other provision hereof (whether similar or not), nor will any such waiver constitute a continuing waiver of that particular provision, unless expressly provided by Project Sunflower Aid Society in writing.
The parties hereto confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including the Donation Submission Form and all notices, have been and will be drawn up in the English language only. A French version of this Agreement will be made available upon request by Client, however, the English version of such documents will govern. / Les parties aux présentes confirment leur volonté que la présente convention, de même que tous les documents qui s’y rattachent, y compris tout formulaire de renseignements bancaires et tout avis, soient rédigés en langue anglaise. Le client pourra obtenir sur demande la version française de la présente convention et du formulaire de renseignements bancaires, mais la version anglaise de ces documents prévaudra sur la version française.
8.1 Donation Disbursement and Receipting Support
As regards all Donations received from Donor through Project Sunflower Aid Society Tools, Project Sunflower Aid Society will provide the following Donation Disbursement and Receipting Support:
e-mail Donation receipts to Donors for the eligible amount (if any) of the Donation; and
transfer Donations minus the applicable transaction fees (the “Transaction Fees”) to the bank account of “Project Sunflower Aid Society”.