Terms and
Conditions
These terms and conditions are designed to protect our
users from those that would use the service in an inappropriate or illegal
manner that may cause harm and/or distress to our customers, partners and event
participants.
1. Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user,
together with any organization or other business entity you are representing,
if any (collectively, the "Licensee") and Empowerment Solutions, LLC
dba FundMonkey ("FundMonkey"). This Agreement governs the access and
use of all products and services, including but not limited to FundMonkey Web
Sites and Campaign Management Services, for which Licensee registers and which
are provided by or through any web site or co-branded web site owned or
controlled by FundMonkey, or any successor web sites (collectively, the
"Service"). IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS
AGREEMENT, DO NOT PURCHASE, USE OR ACCESS THE SERVICE.
The Fundraising Service is offered to Licensee conditioned upon Licensee's
acceptance without modification of this Agreement. Licensee acknowledges that,
from time to time, it may be necessary for FundMonkey to update or revise
certain provisions of the Agreement. By signing up for any FundMonkey Service
and accepting this Agreement, Licensee agrees that FundMonkey may change the
terms of the Agreement in its sole discretion without specific notice to Licensee.
If Licensee does not agree to the changes proposed by FundMonkey, or to any
terms in this Agreement, Licensee's sole and exclusive remedy is to cancel Licensee's
FundMonkey Service ("Licensee's Account"). Notwithstanding the
foregoing, FundMonkey reserves the right to cancel, suspend or refuse access to
the Service to anyone in its sole discretion. Unless explicitly stated
otherwise, any new features or products that change, augment or enhance the
current Service shall be subject to this Agreement.
2. General Use of the Service
Licensee shall not use the Service, in whole or in part, for any purpose that
is unlawful or prohibited by this Agreement. Licensee agrees that Licensee will
not modify, copy, distribute, transmit, display, perform, reproduce, publish,
license, create derivative works from, frame in another web page, use on any
other Web site or product, transfer, or sell any information, software, lists
of users, databases or other lists, products or services provided through or
obtained from the Service other than for use as contemplated in any Service,
including but not limited to the creation or operation of Licensee created Web
sites, (collectively, "Licensee Site") in accordance with this
Agreement. This means, among other activities, that Licensee agrees not to
engage in the practices of "screen scraping", "database
scraping", or any other activity with the purpose of obtaining lists of
users or other information. Licensee agrees that Licensee will not use the
Service in any manner that could damage, disable, overburden, or impair the
Service or interfere with any other party's use and enjoyment of the Service. Licensee
may not obtain or attempt to obtain any materials or information through any
means not intentionally made available or provided for through the Service.
Except with the written permission of FundMonkey, Licensee agrees that Licensee
will not access or attempt to access password protected, secure or non-public
areas of the Service. If Licensee attempts to access prohibited areas of the
Service, Licensee may be subject to prosecution.
3. Charges Billing and Advertisements
FundMonkey will charge licensing fees for a single use of the fundraising
service. Each subsequent use of the
service will require a new license. FundMonkey
will also charge users a technology fee for processing online donations, creating
and using participant pledge codes and the campaign management email services. A technology fee of 9% will be accrued for
each transaction processed by the FundMonkey secure transaction server for the licensed
event. Transaction fees will be
subtracted from the online amount received by the Licensee. Online donations will be paid to the Licensee,
less technology fees, after the Licensee has closed their fundraising event
through the Event Management interface.
In the event of high or
increased incidents of charge card reversals or billing disputes from donors
using the FundMonkey secure transaction server, FundMonkey reserves the right
to hold online donation amounts for up to 180 days to satisfy charge backs from
donors disputing charges through major credit card companies.
If Licensee is required to pay
a fee for all or any part of the Service for which Licensee has chosen to
register. Licensee hereby authorizes FundMonkey to charge Licensee's valid and
current credit or debit card in for all applicable fees incurred by Licensee in
connection with Licensee's chosen Service and Licensee's Account. All fees
shall be paid in U.S. dollars. FundMonkey shall consider ownership of an
account and its constituent site(s) to be the identity of the person providing
payment.
FundMonkey reserves the right to change any fees (which includes but is not
limited to, increasing prices and charging a fee for upgrades and/or a Service
for which FundMonkey does not currently charge a fee) at any time, provided,
however, that FundMonkey will provide Licensee with reasonable notice prior to
making any fee changes. In addition, FundMonkey will also give Licensee
reasonable notice before any modification to the Service that could adversely
impact Licensee's Site(s). If Licensee finds any change to the Service to be
unacceptable, Licensee is free to cancel any part of the Service or Licensee's
Account at any time, but FundMonkey will not refund any remaining portion of Licensee's
pre-paid fees when Licensee cancels any part of the Service or Licensee's Account.
Licensee agrees to pay Licensee's Account balance on time. Licensee also agrees
to pay any taxes, including sales or use taxes, resulting from Licensee's use
of the Service. Licensee is responsible and liable for any fees, including
attorney and collection fees, that FundMonkey may incur in its efforts to
collect any remaining balances due from Licensee. This Section 3 shall in no
way limit any other remedies available to FundMonkey. Licensee also
acknowledges and agrees that Licensee will be billed for and will pay any
outstanding balances if Licensee cancels Licensee's Account or Licensee's
Account is terminated due to Licensee's breach of this Agreement. Licensee must
notify FundMonkey of any billing problems or discrepancies within sixty (60) days
after they first appear on Licensee's credit card account statement. If Licensee
does not notify FundMonkey within sixty (60) days, Licensee waives any right to
dispute such problems or discrepancies.
FundMonkey may show advertisements on any portion of the Service which it
provides to Licensees without permission from Licensee at FundMonkey's
discretion.
4. Licensee Registration/Privacy Policy
In order for Licensee to participate in the Service, FundMonkey will require Licensee
to provide specific information about Licensee and/or and Licensee's organization.
If Licensee chooses to become a customer, Licensee agrees to provide true,
accurate and complete information and to refrain from impersonating or falsely
representing Licensee's affiliation with any person or entity. Licensee shall
maintain a valid email address at all times. Licensee shall be responsible for
maintaining the confidentiality of Licensee's Account and password and shall be
responsible for any and all transactions by users given access to such account
or password and any and all consequences of use or misuse of such account and
password. Licensee shall be responsible for all actions by such users,
including without limitation former employees, volunteers and former partners,
and shall indemnify FundMonkey for such actions as set forth in Section 14.
Any information supplied by Licensee upon registering for the Service and any
other information about Licensee and/or Licensee's organization (collectively,
"Licensee Data") is subject to FundMonkey's Privacy Policy. FundMonkey
will send Licensee newsletters and email messages to inform Licensee of new
products, promotions, features and helpful tips for effectively utilizing the Service.
FundMonkey will also use email to
inform Licensee of important policy changes or subscription renewal notices.
For more information, Licensees may review the FundMonkey Privacy Policy on our website.
5. Licensee Account Limitations
Licensee hereby acknowledges that FundMonkey may, from time to time, establish
general practices and limits concerning the use of the Service, including
without limitation, (a) the maximum number of days that email messages, guest
book entries, discussion board postings or other content posted on the Licensee
Web Site will be retained by FundMonkey, (b) maximum limits on bandwidth usage
that will be allotted to Licensee, (c) maximum limits on storage space, (d) the
maximum number of Web pages per Licensee Account, (e) maximum number of
photographs or other data according to the type of Licensee Account, (f)
maximum limits on the number of pages within each Licensee Web Site, and (g)
maximum time limitations for the retention of Licensee Content following an
account cancellation.
Any of the foregoing limits
will be consistent with the Service (including any upgrades) for which Licensee
has registered. Licensee agrees that FundMonkey has no responsibility or
liability for the deletion or failure to store any content maintained or transmitted
by the Service. Licensee further acknowledges and agrees that FundMonkey
reserves the right to change these general practices and limits at any time, in
its sole discretion, with or without notice. FundMonkey reserves the right to charge Licensee for any fees
associated with the creation of Licensee's FundMonkey website.
6. Content Submitted to FundMonkey
The Service may include a number of venues such as Licensee sites, blogs,
social networking and/or other message or communication facilities designed to
enable Licensees to disseminate and exchange thoughts and opinions to and with
other users or the general public. Although FundMonkey firmly believes in the
value of free and open dissemination and exchanges; however, it is under no
obligation, but does reserve the right, to monitor, pre-screen, or otherwise
remove any content stored in its servers it deems inappropriate. Therefore, FundMonkey
cannot be responsible for the appropriateness, accuracy, sufficiency,
correctness, veracity, completeness, or timeliness of such thoughts and
opinions. Licensee acknowledges that Licensee should always use caution when
posting any personally identifying information about Licensee or Licensee's members
on the Service, the Licensee Site, or any other user sites.
7. Licensee Conduct
Licensee's right to use the Service is personal to Licensee and Licensee's fundraising
organization and its volunteer members (if applicable). Licensee, and NOT FundMonkey,
is entirely responsible for all information, data, text, software, music,
sound, photographs, graphics, video, messages or other materials ("Licensee
Content") posted via the Service. Licensee, and NOT FundMonkey, is also
responsible for compliance with all laws, regulations and ordinances connected
with all aspects of Licensee's use of the Service. Licensee shall not use the
Service for any illegal purpose in violation of any local, state, federal or
international law. Licensee must provide all required and appropriate warnings,
information and disclosure, comply with all applicable laws and regulations,
and take all other required and appropriate actions (collectively,
"Information and Actions") in connection with Licensee's use of the
Service. If the Service does not provide adequate facility or features for Licensee
to provide such Information and Actions, then Licensee shall not use the
Service.
FundMonkey does not control or monitor the Licensee Content posted via the
Service and as such, does not guarantee the accuracy, integrity or quality of
such content. FundMonkey reserves the right, but is not obligated to review the
Licensee Content posted via the Service and to refuse or remove any such
materials in its sole discretion, without notice at any time. FundMonkey also
reserves the right to disclose any information or materials as necessary to
satisfy any applicable law, regulation, legal process or governmental request,
or to edit, refuse to post or remove any information or materials, in whole or
in part, from the Licensee Content in FundMonkey's sole discretion.
With respect to the content on
the Licensee Web Site, Licensee agrees not to:
a.
post, upload or otherwise
transmit any content which is misleading to others or impersonate any person or
entity or falsely state or otherwise misrepresent Licensee's affiliation with a
person or entity to others, including, but not limited to, consumers;
b.
post, upload or otherwise
transmit any content that is threatening, abusive, harassing, tortious,
defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially
and ethnically objectionable;
c.
post, upload or otherwise
transmit any content that Licensee does not have a right to post and transmit
under any law or under contractual or fiduciary relationships (such as
information learned or disclosed as part of employment relationships or under
nondisclosure agreements);
d.
post, upload or otherwise
transmit any content, such that such posting, uploading, or transmission
constitutes the infringement of any patent, trademark, trade secret, copyright
or other proprietary rights of any party;
e.
post, upload or otherwise
transmit any materials that contain software viruses or any other computer
code, files or programs designed to interrupt, destroy or limit the
functionality of any computer software or hardware or telecommunications
equipment and/or attempt to access the accounts of others, or attempt to
penetrate security measures of FundMonkey, its vendors or suppliers or other
entities' systems ("hacking"), whether or not the intrusion results
in corruption or loss of data;
f.
post, upload or otherwise
transmit any materials that impose an unreasonable or disproportionately large
load on FundMonkey's infrastructure that exceed the limits provided by the
Service for which Licensee registered;
g.
post, upload or transmit
any unsolicited or unauthorized advertising, promotional materials,
"spam," "chain letters," "pyramid schemes," or
any other form of solicitation;
h.
interfere with or disrupt
the Service or servers or networks connected to the Service, or disobey any
requirements, procedures, policies or regulations of networks connected to the
Service;
i.
intentionally or
unintentionally violate any applicable local, state, national or international
law, including, but not limited to, regulations promulgated by the U.S. Securities
Exchange Commission, any rules of national or other securities exchange,
including without limitation, the New York Stock Exchange, the American Stock
Exchange or the NASDAQ, and any regulations having the force of law;
j.
forge any headers or
other manipulation of identifiers in order to disguise the origin of any
content transmitted through the Service;
k.
promote or provide
instructional information about illegal activities, promote physical harm or
injury against any group or individual, or promote any act of cruelty to
animals; or
l.
sell, distribute,
disseminate or link to any sites for marketing, sales, distribution of:
firearms, explosives, ammunition, tobacco products and any other products or
services that (i) Licensee cannot legally sell, (ii) are misrepresented, and/or
(iii) if sold via the Licensee Web Site could cause FundMonkey to violate any
law, statute or regulation.
m.
post or disclose any
personal or private information or images about children or any third party
without their consent (or a parent's consent in the case of a minor).
FundMonkey may terminate Licensee's
account for failure to comply with the above listed rules of Licensee Conduct.
8. Third Party Content
For Licensee's convenience, the Service may contain products, services, content
and information from third party providers (which includes advertisers and
affiliates) and/or links to their Web sites ("Third Party Content")
as may be authorized by Licensees. Such Third Party Content is not under the
control of FundMonkey and FundMonkey is not responsible for such content,
including, without limitation, any link contained in such content, or any
changes or updates to such content. FundMonkey is under no obligation, but does
reserve the right to pre-screen Third Party Content available on the Service
and does not assume any responsibility or liability for the content provided by
others. FundMonkey is providing such Third Party Content to Licensee only as a
convenience, and the inclusion of such content does not imply endorsement by FundMonkey
of such content or the affiliate or advertiser. Licensee may be subject to
additional and/or different terms, conditions, and privacy policies when using
third party products, services, content, software, or sites. FundMonkey does
reserve the right to remove content that, in FundMonkey's judgment, does not
meet its standards, but FundMonkey is not responsible for any failure or delay
in removing such material.
FundMonkey is not and will not be responsible for (i) the terms and conditions
of any transaction between Licensee and any third party, (ii) any insufficiency
of or problems with any such third party's background, insurance, credit or
licensing, or (iii) the quality of services performed by any such third party
or any other legal liability arising out of or related to the performance of
such services. In the event that Licensee has a dispute with any such third
party, Licensee releases FundMonkey (and its affiliates, suppliers, agents and
employees) 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, arising out of or in any way connected
with such disputes.
9. Third Party Email Services
Some FundMonkey accounts may have Email services provided by an independent
Third Party Email Services Vendor. FundMonkey is not responsible for the
actions or inaction of the email services vendor or the unavailability or
malfunction of their network or services. FundMonkey is not a party to, and shall
not be involved in or responsible for, transactions, agreements, and/or
disputes between Licensee and email service vendor. In the event of a Dispute, Licensee hereby releases FundMonkey
(and its officers, directors, agents, and employees) from claims, demands, and
damages (actual and consequential) of every kind and nature, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
connected with such disputes.
10. DISCLAIMER OF WARRANTIES.
LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) LICENSEE'S USE OF THE
SERVICE IS AT LICENSEE'S SOLE RISK. FUNDMONKEY AND ITS SUPPLIERS PROVIDE THE
SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION
MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE LICENSEE SITE(S)
"AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) FUNDMONKEY AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL
MEET LICENSEE'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY,
SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE
SERVICE WILL MEET LICENSEE'S EXPECTATIONS.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SERVICE, OR LICENSEE SITES IS DONE AT LICENSEE'S OWN DISCRETION AND RISK, AND LICENSEE
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER SYSTEM OR LOSS
OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO
EVENT SHALL FUNDMONKEY AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS
(HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF FUNDMONKEY OR ANY OF ITS
SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION
OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS,
SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING
OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON
THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO
NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT
APPLY TO LICENSEE. IN NO EVENT SHALL FUNDMONKEY'S AGGREGATE LIABILITY TO LICENSEE
AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE
AMOUNT LICENSEE ACTUALLY PAYS TO FUNDMONKEY UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS
LESS. Without limiting the foregoing, neither FundMonkey nor its suppliers is
responsible for any of Licensee's data residing on the Service or FundMonkey's
suppliers' hardware. Licensee is responsible for backing-up Licensee's data and
information that may reside on the Service or FundMonkey's suppliers' hardware,
whether or not such information is produced through the use of the Service. It
is Licensee's responsibility to take the necessary steps to ensure that Licensee's
primary means of business is maintained (if applicable).
12. Additional Representations and
Warranties.
You represent, warrant, and covenant that (a) you have the power and authority
to enter into this Agreement; (b) you are at least eighteen (18) years of age;
and, (c) you will only use the FundMonkey Web Sites and Services in accordance
with these Terms of Service.
You further represent that you are and will at all times be, in full compliance
with all applicable laws, regulations, rules and ordinances (collectively,
"Laws") regarding your business, the sale and use of the Products,
and as otherwise related to this Agreement and Customer's performance
hereunder;
13. Proprietary Rights to Licensee Content
FundMonkey does not claim ownership of the Licensee Content that Licensee
provides to FundMonkey and/or places on the Licensee Site. However, Licensee
grants FundMonkey a worldwide, royalty-free, non-exclusive license to (i) host,
use, reproduce, modify, distribute, transmit, combine with information provided
by third parties, and publicly display the Licensee Content on and through the
Service and in FundMonkey's promotional or advertising materials (only for the
limited purpose of promoting the Service), and (ii) sublicense to third parties
such Licensee Content to the extent necessary for the creation and maintenance
of, in part or in whole, such Web sites. No compensation will be paid or due Licensee
with respect to FundMonkey's or its sublicensee's use of the materials as
licensed above. By posting messages, uploading files, inputting data,
submitting any feedback or suggestions, or engaging in any other form of
communication with or through any Licensee Site, Licensee warrants and
represents that Licensee owns or otherwise controls the rights necessary to do
so and to grant FundMonkey the license set forth above, and, pursuant to the
terms set forth in Section 14, Licensee will defend and indemnify FundMonkey
and its suppliers from any third party claim related to a breach of any of the
foregoing representations and warranties.
14. FundMonkey Proprietary Rights/Software
Licenses
Licensee acknowledges and hereby agrees that the Service and any software used
in connection with the Service (the "Software") contain proprietary
and confidential information that is protected by applicable intellectual
property and other laws. Licensee further acknowledges and agrees that content
contained in sponsor advertisements or information presented to Licensee through
the Service, advertisers and/or Discussion Boards is protected by applicable
copyrights, trademarks, service marks, patents and other proprietary rights and
laws.
FundMonkey provides Licensee with a non-exclusive, non-transferable, limited
license to use the Software, which Licensee agrees to use in accordance with
this Agreement. Licensee may not sub-license or charge others to use or access
the Software without first obtaining written permission or a written agreement
from FundMonkey. The Software is owned by FundMonkey and/or its suppliers and
is protected to the maximum extent permitted by copyright laws and
international treaty provisions. Any reproduction, modification, creation of
derivative works from or redistribution of the Software is expressly
prohibited, and may result in severe civil and criminal penalties. The
Software, its structure, sequence and organization and source code are
considered trade secrets of FundMonkey and its suppliers and are protected by
trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE
SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR
REDISTRIBUTION IS EXPRESSLY PROHIBITED. LICENSEE MAY NOT DECOMPILE OR
DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE
CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
15. Indemnification
Licensee agrees to indemnify and hold FundMonkey and its suppliers, affiliates,
partners, subsidiaries and employees (collectively, the "Indemnified
Parties") harmless from any and all claims and demands, losses, liability
costs and expenses (including, but not limited to, reasonable attorneys' fees),
incurred by an Indemnified Party arising out of or related to (i) Licensee's
breach of this Agreement; (ii) any information (including but not limited to Licensee
Content and Licensee's publicly posted information) submitted, posted, or
otherwise provided by Licensee at the Licensee Site and/or to FundMonkey and/or
its affiliates; (iii) any dispute or litigation between an Indemnified Party
and a third party caused by Licensee's actions; and (iv) Licensee's negligence
or violation or alleged violations of any rights of another; (v) any third
party claim against the Indemnified Party for: (1) personal injury or property
damage to the extent such Liabilities arise out of or result from the
negligence or other tortuous conduct of Customer; or (2) the breach of any
representation or warranty made by Customer; or (3) any claim by a customer of
Customer against any Indemnified Party to the extent such Liabilities arise out
of or result from Customer's business dealings with such Customer, including,
without limitation the provision of any products or services to such Customer.
These obligations will survive any termination of Licensee's relationship with FundMonkey
or Licensee's use of the Service. To the fullest extent permitted by law, the
foregoing indemnity will apply regardless of any fault, negligence, or breach
of warranty or contract of FundMonkey and/or its suppliers, affiliates,
partners, subsidiaries and employees.
16. Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and
layout of the Service are owned and copyrighted or licensed by FundMonkey, its
affiliates or its suppliers. All rights reserved. No reproduction,
distribution, or transmission of the copyrighted materials of the Service,
which includes the FundMonkey (and any successor Web sites or additional Web
sites or any co-branded Web sites), and/or the Software, is permitted without
the written permission of FundMonkey. Any rights not expressly granted herein
are reserved.
FundMonkey logos and trademarked events are trademarks of FundMonkey. Licensees with a registered license have
permission to use FundMonkey. From time
to time FundMonkey may offer a limited license to Licensees to display FundMonkey
award logos or other symbols of merit on Licensee Web Sites after FundMonkey,
in its sole discretion, confers such distinctions to the applicable Licensees.
However, FundMonkey reserves the right to withdraw such logos or symbols and
delete them in its sole discretion for any reason.
17. Modification of the Service
FundMonkey reserves the right, at its sole discretion, to, at any time, modify,
or discontinue the Service, temporarily or permanently, (or any part thereof),
including the imposition of limits on certain features and services or
restriction of access to parts or all of the Service, with or without notice. Licensee
agrees that FundMonkey shall not be liable to Licensee or to any third party
for any modification, suspension or discontinuance of the Service. Licensee
further agrees that FundMonkey shall have the right to remove any feature from
the Licensee Site, with or without notice to Licensee, at any time at FundMonkey's
sole discretion, if FundMonkey discontinues offering the feature for any
reason. If Licensee does not agree to any such modifications, Licensee's sole
and exclusive remedy is to cancel Licensee's Account.
18. Termination/Cancellation of Licensee
Account
Either Licensee or FundMonkey may terminate or cancel Licensee's Account (or
any part of the Service) at any time, but FundMonkey will not refund any
pre-paid fees upon such termination or cancellation.
a.
Termination by Licensee. Licensee may cancel your Licensee Account or any part
of the Service at any time. To cancel your Service, Licensee must call 1-515-333-4171;
or, at FundMonkey's sole discretion, on a case by case basis, by submitting a
cancellation form. Licensee will receive a cancellation confirmation via email
after FundMonkey processes Licensee's cancellation request. FundMonkey reserves
the right to collect fees, surcharges or costs incurred before Licensee cancels
Licensee's Account in addition to the applicable cancellation fee(s).
Licensee must provide us with the following information in order for us to
process the cancellation:
§
The exact name of the
Service that Licensee would like to cancel
§
Licensee's username and
password
§
Licensee's email address
§
Licensee's billing
information, including the credit card number that the Licensee used when
purchasing the Service
§
Licensee's billing
address
§
Licensee's reason for
canceling the Service
b.
Termination by FundMonkey. FundMonkey may terminate Licensee's Service or Licensee's
Account if FundMonkey determines, in FundMonkey's sole discretion, to
discontinue offering the Service. Additionally, FundMonkey, in its sole
discretion, may terminate Licensee's Site, Licensee's Account or Licensee's use
of the Service for any reason, including, without limitation, (i) if Licensee
breaches this Agreement, (ii) if FundMonkey is unable to verify or authenticate
any information that Licensee provides to FundMonkey, or (iii) if FundMonkey
believes that Licensee has violated or acted inconsistently with the spirit of
this Agreement. If FundMonkey terminates Licensee's Account pursuant to (i),
(ii) or (iii) above, Licensee will forfeit all credits, pre-paid fees, and any
other amounts accruing to Licensee, if any, and FundMonkey shall not be
required to refund, redeem, or pay amounts to Licensee upon such termination.
c.
Effect of Termination. Upon termination of Licensee's Account for any reason,
FundMonkey reserves the right to (a) collect all charges, fees, commitments and
obligations incurred or accrued by Licensee; (b) delete any Licensee Content,
listings, messages or other information in connection with Licensee's Account;
(c) prohibit Licensee's access to Licensee's Account, including without
limitation by deactivating Licensee's password; and (d) refuse Licensee future
access to the Service. In no event shall FundMonkey be required to refund,
redeem, or pay amounts to Licensee upon termination of Service or return any Licensee
Content.
Licensee understands and agrees that the cancellation of Licensee's Account is Licensee's
sole right and remedy with respect to any dispute with FundMonkey. This
includes, but is not limited to, any dispute related to, or arising out of: (1)
any term of this Agreement or FundMonkey's enforcement or application of any
such term; (2) any policy or practice of FundMonkey, including FundMonkey's
Privacy Policy and Copyright Policy, or FundMonkey's enforcement or application
of these policies; (3) the content available through the Service or any change
in content provided through the Service; (4) Licensees' ability to access or
use the Service or Licensee's Web Site; or (5) the amount or type of fees,
surcharges, applicable taxes, billing methods or change to the fees, applicable
taxes, surcharges or billing methods, if any.
19. Notice
Statements, notices and other communications to Licensee may be made by mail,
email, postings within Licensee's account or other reasonable means. Licensee
shall be solely responsible for updating the account's registered email and
postal address. FundMonkey shall not be responsible for any undelivered notices
caused by Licensee's failure to update the account information. FundMonkey may
also provide notices of changes to the Agreement or other matters by displaying
notices or links to notices generally on the FundMonkey Web Site. Licensee
should refer to the Licensee Support page of the Service for information on how
to contact and/or provide notice to FundMonkey.
20. Arbitration/ Jurisdiction
Licensee agrees that any dispute or claim arising out of or related to the
Service or this Agreement, or the interpretation, making, performance, breach
or termination thereof, shall be finally settled by binding arbitration in Dallas
County, Iowa under the American Arbitration Association Rules by one arbitrator
appointed in accordance with said Rules. The proceedings shall be conducted and
all evidence shall be offered in the English language. Licensee agrees that any
claim against FundMonkey must be filed within one (1) year of the time such
claim arose, regardless of any law to the contrary, otherwise such claim will
be barred forever.
Notwithstanding the above, FundMonkey may apply to any court of competent
jurisdiction (i) for a temporary restraining order, preliminary injunction or
other interim or conservatory relief as necessary, including without limitation
for breach of Section 13 (FundMonkey Proprietary Rights/Software License) or
(ii) to collect fees due and owing from Licensee pursuant to this Agreement,
without breach of this arbitration agreement and without any abridgment of the
powers of the arbitrator.
A printed version of this Agreement shall be admissible in judicial or
administrative proceedings based upon or relating to this Agreement to the same
extent and subject to the same conditions as other business documents and
records originally generated and maintained in printed form.
21. General
If any provision of this Agreement is held to be invalid or unenforceable, such
provision shall be struck and the remaining provisions shall be enforced. FundMonkey's
failure to exercise or enforce any right or provision of the Agreement shall
not constitute a waiver of such right or provision. Licensee shall not assign
this Agreement or any rights or obligations hereunder, by operation of law or
otherwise, without prior written approval of FundMonkey, and any such attempted
assignment shall be void. FundMonkey shall have the right to freely assign this
Agreement, and its rights and obligations hereunder, to any third party without
requiring the consent or notice of Licensee. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefits of the parties
hereto, their successors and permitted assigns. This Agreement sets forth the
entire understanding and agreement between FundMonkey and Licensee with respect
to the subject matter hereof. The section and subsection titles in the
Agreement are for convenience only and have no legal or contractual effect.
Each party is an independent contractor and not an agent or representative of
any other party. No party shall have any right or authority to create any
obligation or make any representation or warranty in the name or on behalf of
any other party. This Agreement shall not be interpreted or construed to create
an association, joint venture or partnership between the parties or to impose
any partnership obligation or liability upon any party. The parties acknowledge
and agree that this Agreement may be entered into electronically, and without
the necessity of written signatures.
The Services hereunder are offered by FundMonkey, located at PO Box 410,
Woodard, IA 50276.
22. Independent Review
LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT AND ALL RELATED
SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT LICENSEE
AGREES TO ALL ITS TERMS AND CONDITIONS. LICENSEE HAS INDEPENDENTLY EVALUATED
ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN
THIS AGREEMENT.
