Keep Austin Generous Merchant Agreement

Please read this Keep Austin Generous Merchant Agreement (“Agreement”) very carefully before registering for the Keep Austin Generous Program with MiniDonations, Inc. (“MiniDonations”). This Agreement is by and between the party accepting this Agreement (“Merchant”) and MiniDonations. By clicking the “I Accept” button below, Merchant (i) accepts this Agreement; (ii) agrees to be bound by this Agreement; and (iii) have entered into a binding agreement between Merchant and MiniDonations.

  1. Keep Austin Generous Program. Merchant shall allow its customers to add a donation to MiniDonations’ fundraising campaign “Keep Austin Generous” (“KAG”) to their bill with the Merchant. Merchant will proactively ask each customer to participate in KAG. Merchant shall (i) ensure that each customer receives a receipt for all donations; (ii) ensure appropriate documentation is collected for each donation; and (iii) train Merchant’s staff to answer a few basic questions about KAG.
  1. Branding. Merchant shall (i) prominently display the signage provided by MiniDonations in the welcome kit for the entire duration of the KAG program; (ii) not modify the KAG branding in any way; and (iii) allow Merchant to be featured on the KAG promotional materials and advertising. Merchant grants to MiniDonations a non-exclusive worldwide license and right to use, reproduce, license, display, distribute and transmit the Merchant’s name, logo and any trademarks (“Merchant Marks”) and any photographs, graphics, artwork, text and other content provided or specified by Merchant (“Content”) in connection with the marketing or promotion of KAG or MiniDonations in any and all media or formats, including but not limited to, on the MiniDonations’ website. At all times during the term of this Agreement, Merchant may be subject to surprise checks by mystery shoppers who may be affiliated with MiniDonations or otherwise retained by MiniDonations.
  1. Payments & Reporting
    1. Each week Merchant shall provide a weekly summary of all donations in the previous week. Along with the report, Merchant shall remit the applicable payments to MiniDonations. The report will be uploaded to the KAG website or will be sent in a form approved by MiniDonations via email.
    1. It shall be the responsibility of Merchant to ensure that the funds from donations are correctly transferred to MiniDonations. Merchant will take legal and financial responsibility for the collection and distribution of the money from the donations.
    1. Merchant agrees that at all times during the term of this Agreement and for two (2) years thereafter, it shall maintain accurate books and records relating to any donations collected. Merchant agrees that MiniDonations shall have the right to examine, inspect, audit, review and copy or make extracts from all such books, records and any source documents used in the preparation thereof. In the event an audit reveals an underpayment, in addition to paying the unpaid amounts, Merchant shall pay the reasonable costs of the audit.
  1. Term and Termination. This Agreement shall continue in effect until terminated by either party as described herein. MiniDonations may terminate this Agreement at any time for any reason by giving the Merchant written notice of such termination. Merchant may terminate this Agreement upon fifteen (15) days written notice. Upon termination of this Agreement or upon notice from MiniDonations, Merchant will stop collecting funds and return any KAG collateral in its possession. Sections 3, 4, 5, 6, 7 and 8 and any claims for payments due MiniDonations shall survive any expiration or termination of this Agreement.
  1. Merchant Representations and Warranties, and Indemnification.
    1. Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant is registered for sales and use tax collection purposes in all states in which Merchant’s goods and services will be provided; (c) Merchant owns all right, title and interest in the Content and has the right to grant the licenses in the Content stated in this Agreement.
    1. Merchant agrees to defend, indemnify and hold MiniDonations, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement or the representations and warranties contained herein; (b) Merchant’s collection and failure to remit donations or other documentation to a customer and/or MiniDonations; or (c) any claim arising out of or relating to the products and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorneys’ fees, related to any action against, or determinations against, MiniDonations related to any action to pursue MiniDonations for taxes or any other claim pursuant to this Section.
  1. Confidentiality and Intellectual Property Rights.
    1. The terms of this Agreement are confidential, and Merchant agrees to not disclose the terms described herein to any party (other than its employees who are bound by confidentiality obligations no less restrictive than those contained herein on a need-to-know basis). Any breach of this confidentiality provision by Merchant shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to MiniDonations for which there will be no adequate remedy at law; and in the event of such breach, MiniDonations will be entitled to injunctive relief and/or specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
    1. Merchant agrees and acknowledges that MiniDonations owns all right, title, and interest in the MiniDonations website, MiniDonations trademarks, and any software, technology or tools used by MiniDonations to promote or market the KAG program (collectively the “MiniDonations IP”). Merchant shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the MiniDonations IP or any portion thereof, or otherwise use such MiniDonations IP. Merchant shall not prepare any derivative work based on the MiniDonations IP. Merchant shall not translate, reverse engineer, decompile or disassemble the MiniDonations IP.
  1. Limitation of Liability. MINIDONATIONS SHALL NOT HAVE ANY LIABILITY TO MERCHANT FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, STATUTE OR OTHERWISE, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), INCLUDING (WITHOUT LIMITATION) LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL MINIDONATIONS BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES THAT EXCEED $1,000 AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEMDY.
  1. Miscellaneous.
    1. The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.
    1. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual written agreement of authorized representatives of the parties in writing.
    1. Merchant may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without MiniDonations’ prior written consent. Any attempt to assign this Agreement by Merchant shall be null and void.
    1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MINIDONATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
    1. This Agreement shall be governed by the laws of the State of Texas, without regard to the conflict of laws provisions of any state or jurisdiction. Any disputes, controversies, or claims in connection with or arising out of this Agreement shall be referred to and finally determined by arbitration in Austin, Texas before a single arbitrator who is a member of the American Arbitration Association, from which arbitration there shall be no appeal. Such arbitration shall be held in Austin, Texas, in accordance with the Commercial Rules of the American Arbitration Association, with the governing law to be that of the State of Texas. The award rendered by the arbitrator shall be final and binding on all parties, and judgment upon the reward rendered by the arbitrator may be entered in any court of competent jurisdiction.