These terms apply to you if you are a fundraiser, charity, donor, event organizer, event registrant or any other user of the site and/or services (collectively, "users" or "you"). You agree to be bound by such revised terms as they may be posted from to time. To be eligible to use the services and access the site, you must: (1) be at least 18 (or between the ages of 13 and 17 and using the site and services with parental or legal guardian consent and supervision); (2) be registered with us (to the extent required) and not have been previously restricted, suspended or terminated by us; and (3) not be using another member’s account without her/his permission. Nothing in these Terms may be construed to create or confer any rights on third party beneficiaries. If you do not agree to any of the terms and conditions set forth herein, you may not use the Website.
Access to the site and services from territories where the site and/or services are illegal is strictly prohibited. Users are responsible for complying with all local rules, laws, and regulations regarding their use of the site and services.
Swell Fundraising is an organization that assists non profit companies with creating dynamic fundraising events utilizing social media, event management tools and onsite donation capabilities. We are committed to helping causes raise more money from their events, online campaigns and donation forms. Swell also strives to help guests engage with causes at a deeper level during those campaigns and events. We provide an event-driven fundraising software platform and services to fundraisers which include access to a cloud-based event management tool, on-site event management application and slide / presentation apps.
The purpose of our site and services is to help individuals, entities or organizations raise money, but we do not pick or endorse any such individuals, entities or organizations or any of their campaigns or causes. We merely provide a technology platform to allow fundraisers to manage, communicate and connect with donors. The existence of the site or services is not a solicitation of donations and Swell Fundraising does not engage in any solicitation activities on behalf of any fundraisers.
Donor / User Rights
Your rights matter. Any individual, entity or organization that registers (Purchases a Ticket or Table; Becomes a Fundraiser) with a Swell event and donates funds through the Platform or the services (“donor”) is subject to the following terms that apply specifically to donors. At any time, donors/users may inquire about their privacy, settings and use at email@example.com.
Donor Data and Visibility: The Swell platform and fundraising experience rely on transparency. Individual Participants and Donors, unless they elect otherwise, may be visible on the event website as a ‘Fundraiser’, ‘Active Participant’ or ‘Donor’. At any time, a Client or Swell Client Support can hide the visibility of an active participant. Individuals may email the Client directly or firstname.lastname@example.org to request that their Personal Fundraising Activity be marked as hidden in the Swell system. Individual Donors can elect to be anonymous at the time of the transaction.
Donor data is jointly owned by Swell Fundraising and the Client. From time to time, Swell may access and publish information about donor behavior or trends broadly but without any specific reference to a donor individually. Information utilized by Swell will be aggregated and not specific to any single donor file. Swell will never engage in the sale of individual donor data to 3rd parties.
Integrations and Donor Data: As determined by the Client, Swell data may be integrated with
additional 3rd party software applications utilized by Client. The terms and conditions of those 3rd party software providers will apply to the privacy and ownership of donor data.
Donor’s Risk. All donations are at your own risk. Please make sure that when you donate to a given Event, Beneficiary or Charity, you understand how your money will be used. When donating, only donate to those entities that you feel comfortable donating to or otherwise know and trust. Swell Fundraising does not warrant that funds will be used for any particular purpose and is not responsible for any misuse of the funds by the Beneficiary.
Donor Commitments. By donating money through the Website, you represent and warrant that any donation you make is legal in your jurisdiction and that you are authorized to use the payment method you have selected. Each donor agrees and acknowledges that: (i) all donations to Charities are made as unrestricted gifts and may not be specified for any particular purpose; (ii) designated donation and registration amounts and Processing Fees will be charged to the credit or debit card or other payment method you use through Beanstream and (iii) all donations are final and non-refundable.
Tax Deductions. Swell Fundraising makes no representation as to whether all or any portion of your donations, including, if any, processing fees, are tax deductible. Swell Fundraising will have no liability for any claim by any federal, state, local or any other tax authority with respect to the characterization on any applicable tax return of any donation by you, any Swell Fundraising user or any Charity. You should consult your tax advisor as to the amount of your donation that is tax deductible, particularly if you are awarded a gift or prize in connection with your donation.
Becoming a Client.
It is easy to become a client by following the steps on the site. You may only sign up for an account on behalf of an entity or organization if you have the legal authority to bind that entity or organization. You will be required to provide some information when you sign up, including an email address to receive any notices required by law, in lieu of communication by postal mail, along with other messages, including changes to features of the service. By becoming a client of Swell Fundraising, you confirm that the entity or organization is a 501(c)(3) organization and that you comply with all applicable registrations and laws.
User Names. You may need a username and password to use certain features of the Website and services and you may create certain URLs when you establish a profile, fundraiser, event, or charity page. By selecting a user name and any particular URL you agree that you will not select or use a name or URL:
(a) of another person with the intent to impersonate that person; (b) subject to the rights of any person without authorization; or (c) in violation of the intellectual property rights of any person.
All Swell clients subscribe to the platform on an annual basis by paying either one sum at the start of each annual renewal or a monthly fee. The account will renew automatically unless the client provides at least thirty (30) days written notice stating that they do not wish to renew their licensed account. By signing up for any such plan, the Charity agrees that the account will be subject to this automatic renewal feature and all applicable fees unless and until a permitted cancellation. All fees are non-refundable for the then current subscription period.
Client hereby authorizes us to charge the account and billing method on file for all applicable fees under the subscription account.
Creating and Posting an Event. Any current client of the Swell platform may create and post an event to sell tickets, online fundraising campaign or donation pages to share information and request financial contributions ("Donations") from prospective event guests and/or donors.
What is an event. An event is defined by the creation and use of a distinct Swell site for purposes of raising funds within a defined period of time. Swell sites are created using different subdomains that define the location of the event website. Each time a client creates an event site on a new subdomain it constitutes an Event. Events may or may not require ticket sales and/or donations, use of apps etc but are attached to use of the Swell platform for distinct fundraising efforts.
If you create an event, you represent and warrant that you: (a) are the authorized representative of the Beneficiary with the authority: (i) to solicit donations for the Beneficiary; and (ii) to bind the Beneficiary to the terms of this Agreement; and (b) ensure all donations are disbursed properly and legally to the Beneficiary and all donations are used as described by the event.
Scope of Services: On the terms and subject to the conditions set forth herein, Customer hereby engages and retains Company to perform the following services for the benefit of the Customer: (i) use of Swell software platform and related apps for event management and fundraising services, (ii) customer support and training regarding the use of the software platform, (iii) providing standard documentation related to implementation of the event concept stipulated in the Scope and (iv) one hour / month of strategic support to the director or event chair.
Designee / Legal Entity: Designate the legal entity receiving the donations (the "Beneficiary") and ensure the Beneficiary sets up an account with the designated independent payment processor (the "Processor") to receive donations.
Future add-ons or expansions. While it may be offered, the Customer will not be entitled to future add-ons or expansions, including, but not limited to, mobile technology, notepad optimization or other communication forms and devices that may be developed to support the Concept.
AV Services. The Event may require significant audiovisual and internet support (“AV Services”). The Company can assist with the selection of service providers for the AV services (“AV Company”). The Company will not provide the AV Services, nor will it have any liability for the AV Services. The Customer hereby agrees and acknowledges that the AV Services will be obtained through contract with the AV Company directly and that any issues regarding AV Services will be addressed directly with the AV Company.
License of Intellectual Property. Company hereby grants to Customer a limited, non-exclusive, non-assignable and revocable license and right to use certain intellectual property of the Company.
As a Charity, receipt of funds is based on the payment processor, as described below. In addition, all Charities will be responsible for taxes based on their net income or gross receipts (if any).
Use of On-Site Applications: The use of on-site applications may depend on the services of 3rd party providers not controlled by Swell Fundraising. Applications may rely on internet service providers, equipment supplied by a venue or 3rd party, devices and other tools that are not managed by Swell. Client acknowledges that the delivery of Swell applications and services rely on these instruments and that Swell is not responsible for the performance of 3rd party services or devices in the delivery of the Swell software.
Customer will select its preferred method of payment processing from one of the following. The fees and fund availability vary by method and are clarified below and further in documentation provided by the processor.
Fund Collection via Client BluePay Account.
Client may elect to setup a BluePay merchant account or connect an existing Bluepay account to its Swell license. Bluepay will pay you for your transactions (minus its fees and the additional fee paid to Swell) at a schedule communicated to you once your use of Bluepay account is approved. A certain amount of your funds may be subject to an additional hold period (e.g. Reserve Account) with terms determined by your perceived risk and transaction history. You are responsible for refunds, returns, and liable for customer disputes (chargebacks). Donations processed via BluePay comply with Bluepay’s Terms and Conditions and will be handled directly by the client. From time to time, Clients may engage with BluePay directly to negotiate more competitive rate structures.
BluePay- Swell Rate: 3.99% processing fee; .25 per transaction (this rate is subject to change over time – this reflects the rate as of the 5/15/2018).
Fund Collection via Client’s Authorize.net Account.
Client may elect to utilize client’s merchant account with authorize.net. Funds processed via the client authorize.net account will be subject to the fees and expenses per the terms, conditions and agreement between Client and Authorize.net. Swell software provides online and onsite merchant processing and use of a client authorize.net account may require testing, adjustments of required information or changes to the client authorize.net account in order to allow for online and onsite processing. Swell will collect 1% of funds processed online as compensation and support for the software, license, intellectual property and setup of the Swell platform for client events. Collection of such funds will be billed to client monthly post processing.
Transaction Fees on Donations. When a donation is made through Swell Fundraising, a transaction fee may be applied depending on the processor and fee arrangement with the client. In some cases, donors may elect to cover the processing fees thereby reducing the Charities’ cost. Processing Fees charged through Bluepay and other payment processors used by Clients are tax deductible to the extent permitted by law and will show up on your credit card under the name of the Client.
The intellectual property rights, including, but not limited to, copyright, trademark, patent, trade dress, derivative works, moral rights, trade secrets, and proprietary information in all content that appears on the Website and all Tools, and that is used by Swell Fundraising in conjunction with the services they are providing, including but not limited to, information, text, data, photographs, audio, video, images, graphics, documents, logos, and other content, associated technology and software, and the look and feel of the Swell Fundraising Website (collectively, "Website Content"), are owned by Swell Fundraising or its licensors. Except as expressly permitted in these Terms, you agree not to copy, alter, frame, distribute, publish, sell, prepare derivative works based on, or commercially exploit the Tools and/or any Website Content, without express written permission from Swell Fundraising or its licensors.
Swell Fundraising’s Trademarks
Swell Fundraising grants Clients a limited, non-exclusive, royalty-free license to display the trademark Swell Fundraising (the “Swell Fundraising Trademark”) solely on your Event Website for purposes of raising funds through the Swell Fundraising. You acknowledge the ownership of the Swell Fundraising Trademark, and all use of the Swell Fundraising Trademark by you, inures to the benefit of Swell Fundraising. You may not incorporate any Swell Fundraising Trademark within any trademark, trade name, or domain name created by you.
Appropriate User Content
Swell Fundraising may allow you and other users to upload, post, and/or share information, text, data, photographs, audio, video, images, graphics, logos, symbols, documents, and other content (collectively, “User Content”). Swell Fundraising permits you to use the Swell Website, the Tools, and the services provided by Swell Fundraising subject to your acknowledging and agreeing to the following conditions:
In creating and maintaining an Event Website on the Swell Fundraising system, you grant a limited, non-exclusive, royalty-free license to Swell Fundraising to display the Registered Charity Content that you upload on the Event Website for the exclusive purpose of promoting you and soliciting donor- contributions. You represent and warrant that you have the necessary rights to grant the foregoing permissions to Swell Fundraising. The foregoing license does not provide Swell Fundraising any rights to sell or license any Registered Charity Content therein to any other third parties, use the Registered Charity Content for any other media, and/or use the Registered Charity Content for advertising and promotion of Swell Fundraising.
User Content posted by yourself and other users of the Swell Fundraising Website does not necessarily reflect our views.
We will seek to remove or edit, with or without notice to you, any User Content that we deem to
be unlawful, obscene, or in violation of these Terms. We may, but are not obligated to, remove any other User Content that we determine in our sole discretion is fraudulent, threatening, libelous, defamatory, or otherwise objectionable, or infringe or violate any party’s intellectual property or other proprietary rights.
Our failure to block or remove any User Content, however, is not a warranty, endorsement, representation, or guarantee regarding such User Content.
The posting of User Content on the Event Website is solely the responsibility of each Customer or User. Swell Fundraising does not assume responsibility for the accuracy of any information, ideas or opinions posted by users and is not liable for any claims, damages or losses resulting from such information, ideas, or opinions.
You agree that the Content will accurately describe the collection and intended use of contributions made via Swell Event Websites.
You represent and warrant that your Content does not infringe the copyright, trademark, publicity/privacy right, and/or other intellectual property or proprietary rights of any third party, including, but not limited to, that of Registered Charities on the Website.
Additional Legal Provisions
Disclaimer of Warranties. You acknowledge that you are using the Website and the services at your own risk. The Website is provided to you "as is" without warranty of any kind. To the fullest extent permitted by applicable law, Swell Fundraising disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, operability, or availability of any Website Content, or other information or materials displayed on the Website. Swell Fundraising, its affiliates and subsidiaries, if any, and its third party service providers, suppliers, and vendors do not represent or warrant that access to the site, the site information or the services will be uninterrupted or that there will be no failures, errors or omissions, or loss or security breach of transmitted information, or that no viruses will be transmitted through access to or use of site, services or site information. Swell Fundraising assumes no responsibility for the timeliness, deletion or failure to store any content (including, but not limited to, any user generated content) or user communications. Swell Fundraising also expressly disclaims to the fullest extent permitted by law any and all responsibility and liability for the conduct of any charity and any donor. swell fundraising hereby disclaims any and all warranties, express and implied, including, without limitation, any warranties of accuracy, completeness or reliability, title, noninfringement, merchantability, fitness for a particular purpose or other warranty, condition, guarantee or representation, whether oral, in writing or in electronic form.
YOU AGREE THAT NEITHER SWELL FUNDRAISING, NOR ANY OF ITS AFFILIATES WILL BE LIABLE TO YOU AND/OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO: THE WEBSITE OR THE SERVICES PROVIDED BY SWELL FUNDRAISING (AND YOUR USE OF, OR INABILITY TO USE, THE WEBSITE OR SERVICES) , REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL SWELL FUNDRAISING BE LIABLE TO YOU FOR MORE THAN THE AMOUNT ACTUALLY PAID BY YOU TO SWELL FUNDRAISING DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. YOU AND SWELL FUNDRAISING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SITE OR SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
YOU HEREBY AGREE TO RELEASE SWELL FUNDRAISING, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND THIRD PARTY SERVICE PROVIDERS, SUPPLIERS AND VENDORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (COLLECTIVELY, "CLAIMS"), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THIS SITE AND ITS SERVICES OR THE SITE INFORMATION.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Hold Harmless and Indemnity
Your use of the services provided by Swell Fundraising is entirely at your own risk. You will hold harmless and indemnify us from and against any third party claim arising from or in any way related to your use of the services provided by Swell Fundraising or the Website, including without limitation any liability or expense arising from any claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorney's’ fees, of every kind and nature.
Links to Other Websites and Content
We may include links to third-party websites or services, and may link you automatically to sponsor or third party websites or services. These links do not mean that we review or endorse these third party sites or services. We provide such links when we believe such links may be helpful, but we do not monitor or accept any responsibility for such sites. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate, so you proceed to these links at your risk and responsibility. You acknowledge that we are not responsible or liable for any content, advertising, products, services, or other materials on these third party sites. Any dealings that you have with advertisers or other third parties who may be found on or linked from the Website are between you and the advertiser, for which you assume full responsibility and you acknowledge that we are not liable for any loss or claim you may have against an advertiser.
Swell Fundraising may provide you with notices regarding the services provided by Swell
Fundraising and by the Website, or these Terms by regular mail, email, or postings to the Website.
The Website is controlled and operated from within the United States. Swell Fundraising makes no representation that the Website is appropriate or available in locations outside the United States. Those who choose to access the Website from other locations are responsible for compliance with applicable laws. International users must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence.
Term and Termination
These Terms apply to your use of the services provided by Swell Fundraising and the Website at all times. Swell Fundraising reserves the right to change the Website without notice to you, at any time.
These Terms constitute the entire agreement between the parties with respect to all of the matters herein and supersedes all other agreements, understandings, and discussions of the parties. If any provision of these Terms shall be held to be unlawful, void, or unenforceable, then that provision shall be deemed severable from these Terms and will be deleted and replaced by a valid and enforceable provision which achieves, as far as possible, the same objectives as the severed provision was intended to achieve. The remaining provisions of these terms and conditions shall continue in full force and effect.
No waiver or forbearance to seek a remedy by any party of any breach by any other party of any of its covenants, obligations and agreements hereunder shall be a waiver of any subsequent breach of any other covenant, obligation or agreement.
You may not assign, sublicense or otherwise transfer any right or obligation set forth herein without Swell Fundraising’s prior written consent. Any purported assignment in violation of the preceding sentence is void and of no effect. These terms and conditions are binding upon the parties' respective successors and permitted assigns. Except as otherwise expressly provided herein, all remedies provided for herein shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
Swell Fundraising may assign any of its rights or obligations under these Terms to another party without notice or consent for any reason.
The headings used throughout these terms are solely for convenience of reference and are not to be used as an aid in the interpretation of these terms.
These terms do not confer any third party beneficiary rights.
You will not assign or transfer any of your rights or responsibilities under these terms to anyone without Swell Fundraising's express written permission.
Swell Fundraising may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
Nothing in these terms shall prevent Swell Fundraising from complying with the law.
Swell Fundraising shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Jurisdiction and Governing Law. You agree that these terms, for all purposes, shall be
governed and construed in accordance with the laws of the State of Alabama, without giving
effect to its conflicts of laws provisions. In addition:
Except as otherwise provided for in this Agreement or in writing by the parties hereto, any dispute among the parties hereto, wherever based in contract, tort or otherwise, in any way arising out of or relating to this Agreement or any agreements or instruments relating to this Agreement shall be resolved exclusively by binding arbitration in accordance with the Federal Arbitration Act (9 U.S.C. § 1) and the Commercial Arbitration Rules (“Rules”) then pertaining of the American Arbitration Association (“AAA”). In the event of any inconsistency between this Section and the Rules, this Section shall govern. Commencement of an arbitration proceeding under this Agreement shall be deemed the commencement of an action for such purposes. An arbitration proceeding shall be deemed commenced upon the receipt by the AAA of a party’s written demand for arbitration. The arbitration proceeding shall be conducted in Birmingham, Alabama, or at such other place as may be selected by mutual agreement of the parties hereto, Judgment upon the award entered in arbitration may be entered in the Circuit Court of Jefferson County, Alabama and each party hereto specifically consents to venue and jurisdiction in Jefferson County, Alabama, with respect to any award so entered. The arbitrator or arbitrators shall not act as amiable compositeurs. No provision of, or the exercise of any rights under, this Section shall limit the right of any party to exercise (in addition to its rights to arbitrate) any self-help remedies or to realize upon foreclosure against by judicial foreclosure any collateral or security whether pursuant to a power of sale otherwise before, after or during the pendency of the arbitration, nor shall anything in this Agreement be construed to prevent the parties from seeking preliminary relief for breaches of this Agreement from a court of law or equity, including, but not limited to, a temporary restraining order or temporary injunction. A party’s seeking preliminary relief from a court of law or equity shall not constitute a waiver of that party’s arbitration rights under this Agreement. The Federal Arbitration Act shall apply to the construction and interpretation of this Section notwithstanding any other choice of law provisions contained elsewhere in the Agreement. The parties acknowledge and agree that the transactions contemplated by this Agreement, and any disputes which ay arise hereunder or in relation to or involving this Agreement, involve interstate commerce and the performance of the obligations hereunder involve substantial interstate activities. The arbitration agreement contained in this Section shall survive termination of this Agreement. All costs of arbitration shall be borne by the party against whom the issues of arbitration are decided.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 8007787879 or visit the AAA website at http://www.adr.org.
Conflict with Other Agreements. These terms are in addition to, and do not nullify, any other agreement between you and Swell Fundraising or any other applicable terms and conditions found on the site. In the case of any direct conflict between these terms and any other agreement between you and Swell Fundraising, the provisions of such other agreement shall control but only to extent applicable to the conflicting provisions. You agree to comply with all rules or restrictions that are posted on the site.
Electronic Communications. When you visit the site, use the services or send emails to Swell Fundraising, you are communicating with us electronically. You consent to receive communications from Swell Fundraising electronically. Swell Fundraising may communicate with you by email or by posting notices on the site. You agree that all agreements, notices, disclosures and other communications that Swell Fundraising provides to you electronically satisfy any legal requirement that such communications be in writing. You may give notice to Swell Fundraising at the following address: 1500 1st Avenue North #21, Birmingham, AL 35203. Such notice shall be deemed given when received by Swell Fundraising by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.