Certified Nonprofit Services Agreement
By filing for Hawser Certified Nonprofit status and/or accessing the Hawser network and associated pages, you hereby agree to the following terms:
By digitally signing in and/or by using the website, app and/or related channels, you are executing an Agreement between yourself and your board collectively (herein referred to as “you”, “nonprofit”, “Member”, “Charity”, or “User”) and Hawser Inc. herein referred to as: (herein referred to as “Hawser”, “Site”, "we", "Network", "Platform" or “Service”) with offices located at 1323 S. 2nd Avenue, Sioux Falls, SD 57105 affiliates, subsidiaries and/or parent comapny(ies) collectively. Please note that “User” may also refer to those individuals and/or organizations accessing the Service who are not nonprofits or affiliated in any way with the non-profit sector.
By clicking below and/or using the Service, You attest that you have both the legal and unencumbered authority to enter into this Agreement with the parties collectively and individually associated with the project known as Hawser and with the organization itself known as “Hawser”, “hawser.org” or “Hawser, Inc.”
By clicking below / by digitally signing and/or using the Service, you further attest that you are not restricted or precluded, in any way or by any other agreement from entering into this Agreement and that you are not member or party to any other agreement and/or organization that may prevent, prohibit or bind you from the full and complete execution of this or any other contract with Hawser to use your: relevant data, images, likeness, intellectual property, site activity or news including but not limited to your: name, brand, image(s), likenesses, status, posts, messages, artwork, video content, name(s), logo(s), trademark(s), service mark(s), recent activity, event information, photos, associations, established alliances and/or affiliates whether sponsorship, endorsement or otherwise herein referred to as the "information" whether in the public domain or not, which may be used in connection with and for the purposes stated in the Hawser Project Plan, Executive Summary and/or informational website which you have been duly provided and granted sufficient time to review with any and all board members and/or necessary legal council prior to the execution of this Agreement.
2. TERM OF AGREEMENT:
This Agreement shall be valid from the most recent of either the date of execution or most recent access and lasting until cancellation, restriction to or deletion of account information on the homepage or dashboard by User or Hawser.
3. DEFINITION OF MEMBERSHIP & USE OF CONFIDENTIAL INFORMATION:
a.) The undersigned has perused the "Hawser Terms of Service" and hereby grants Hawser any and all applicable right(s) to use any information that is either available to the public or submitted to Hawser or made available through Hawser for the purposes of creating a electronic web-based personal media platform which shall include but not be limited to: messaging, marketing, donation solicitation. donation transfer, donations & retail transaction processing and searchable directory of personal messaging contributors or nonprofits whose activity may be monitored and screened by Hawser, their agents, officers, assigns or third party affiliates.
b.) Financial contributions to organizations who are authorized to receive donations and/or volunteer information by Hawser’s approval process (herein referred to as “Hawser Certified Nonprofits” or “Certified Nonprofits”) may be held on account for a period of time by Hawser for future distributions to the “Nonprofit”(s) for which they were submitted if Nonprofit’s transaction platform is broken or Nonprofit is otherwise unable for any reason or any period of time to receive funds as originally structured unless this agreement is amended due to a necessary change in payment transaction platform and/or by donor's specific request.
c.) All Users and Hawser Inc. officers, agents and assigns agree, by using or being affiliated with the Service herein referred to as Hawser, that they will refrain from any and all: defamatory, sexist, racist, lewd, pornographic, violent, graphic, sexually explicit, or otherwise knowingly offensive remarks or posted content including but not limited to language, photos and video.
d.) All Users agree to hold Hawser, its officers, employees, affiliates, designates and assigns non-liable for any and all damages or losses directly or indirectly related to Hawser's activities with the exception of intentional criminal activity and gross criminal negligence.
e.) Hawser agrees to refrain from knowingly selling, sharing or otherwise disclosing any confidential information or any specific personal identifying donor financial information whether identified as confidential information or not.
f.) Hawser further agrees to use only anonymous* data created and/or curated by tracked activity regarding Hawser and activity on, within or connected to the Hawser network.
*Although analytics may at times inadvertently capture data that may bear personal identifying information, Hawser shall exercise it’s best efforts to ensure those personal identifiers are removed prior to assembling data reports and use only the general non-identifying information consistent with that which is outlined in the Hawser Project Plan.
4. REPRESENTATIONS AND ACKNOWLEDGEMENTS
a.) All Users shall indemnify, defend and hold Hawser and all those in its employ, independent contractors, agents, assigns, managers, owners and/or representatives harmless from and against all claims, demands or liabilities, including the liability for attorney’s fees and court costs, arising from or related to (i) the condition or suitability of the website, application, widget and/or other related marketing efforts or marketing materials(ii) personal and/or social messaging and media activity on the networks, app or related channels (iii) any revenue, tax, licensing, broadcast, hosting, transaction and/or processing terms, or other law, regulation, rule or other legal requirement affecting the Nonprofit or other users of the Service, and (iv) any disputes or litigation arising between any and all Users and any viewer, user, donor, Nonprofit or other third party action including transaction parties involving the Nonprofit, Nonprofit’s disclosures and donation transactions and errors and/or omissions.
b.) All Users understand that Hawser may collect and submit to Braintree, a PayPal company, certain information to: verify your identity, enable transactions and directly disperse payments / donations. This information includes but is not limited to: first name, last name, address, date of birth, billing address, account number(s)* and email addresses.
*If you elect to disperse or receive payments to or from a bank account, this information may include but not be limited to bank account and routing numbers.
If the User is a registered company, the created merchant call will also include the Business section with legal name, tax ID, address and optionally the DBA or 501c3 name in addition to the personal individual details of the nonprofit authorized representative.
5. MEMBERSHIP ACCESS
a.) Hawser reserves the right to cancel or suspend indefinitely any and all memberships, accounts, profiles and/or access to or within the Hawser Platform / Site / Service at any time with or without notice to any account holder, membership holder, administrator, affiliate, partner, investor, board member and/or any third party sponsors.
b.) Acceptance to the Hawser network including issuance of the Hawser Certified Nonprofit designation is "at-will", and as such revokable for any reason whatsoever and shall not constitute any loss, defamation, slander, review, judgement or influence of opinion by any User including but not limited to businesses and organizations that either do not receive that designation or that do not maintain that designation.
a.) Hawser’s payment processing partner: Braintree, a PayPal company, will provide pre-generated 1099-K tax forms for Hawser Certified Nonprofits. In the event you or your organization requires different and/or additional tax forms, you will be required to generate them independently or request them both independently and directly to Braintree. Please speak with your CPA or tax preparer to determine whether or not contributions require receipts indicating that no goods and/or services have been rendered in exchange for transacted funds/donations and the terms under which those contributions may or may not be tax deductible as this is your sole responsibility and duty willfully acknowledged and accepted through your use of the Service.
b.) Hawser and Hawser Users including but not limited to Hawser Certified Nonprofits will cooperate with both Hawser Inc and Braintree in securing additional information whenever necessary in order in order to satisfy any internal, local, regional or national rules, regulations and laws including but not limited to FTC and IRS reporting obligations. This additional information may include but not be limited to: Bank Account and Routing Numbers, Tax ID, 501(c)(3) information, Social Security Numbers, Criminal Background Checks, Credit Reports, 4506-T Reports and Proof of D&O Insurance.
c.) Hawser and their Users/Nonprofit members hereby grant Braintree access to any selected payment transaction methods including but not limited to bank account information and Venmo account access for the purposes of facilitating disbursements, handing disputes and reversals of funds when / if applicable. In the event of a transaction dispute, All Users hereby agree and acknowledge that the receiving party or Certified Nonprofit bears the sole and indivisible responsibility of handling any and all transaction disputes including but not limited to: credits, returns and refunds in a prompt and courteous fashion in accordance with their respective policies and Terms of Service. Any and All Users further agree to review the intended recipient of any donation or financial transaction prior to making a donation or purchase in any amount that is related either directly or indirectly to that organization. The Hawser Certified Nonprofit status is designed to mitigate the potential for fraud, misuse of funds or re-direction of funds that is inconsistent with the mission, plan or ideals expressed on the Hawser Network. Hawser Certified Status shall not be construed or interpreted, in any way, as a promise or guarantee of any kind - specifically with regard to the use of funds we assist any third party, including nonprofits that we assist in soliciting for and receiving funds as these are third parties and their management of funds is ultimately outside of our control. Please see Hawsers “Terms of Service” for more information.
d.) Hawser will provide Users/Nonprofits with access to activity reports as reasonably requested and available. Any Hawser Certified Nonprofit raising more than $100,000.00 on the Platform / Site / Service per year may be required to open their own separate merchant account, with its own sponsor bank, through Braintree.
e.) In order for Hawser to disperse payments via Venmo, Hawser and it’s Users/Nonprofit members must agree to the Venmo User Agreement here: https://venmo.com/legal/us-user-agreement/
f.) Hawser Inc. is not responsible for lost, misdirected funds in the event the network or individual users' connection or Hawser's access to an organization's established transaction or gateway is interrupted or terminated for any reason.
a.) By using the Service and/or accessing the Hawser Site(s) all Users including Certified Nonprofits agree to hold Hawser harmless and non-liable for any and all: fines, chargebacks, refunds, real or perceived loss, real or perceived damages and any other expenses incurred by Users through or related to the use of the Hawser Site(s) and or Service(s) including any and all costs or expenses incurred in the interpretation or enforcement of this and/or any other Agreement with Hawser Inc, it’s affiliates, officers, agents, assigns and/or subsidiaries.
b.) All Users including but not limited to Hawser Certified Nonprofits hereby acknowledge that they will indemnify, defend and hold harmless Hawser from any claims, losses and/or liabilities arising out of or related to any of the forgoing.
c.) All Users agree that if API permission or other means of sharing account access is interrupted or terminated either temporarily, periodically or permanently with or without having terminated a Hawser User's Member Services Agreement, Account and/or Terms of Service, it will significantly impair Hawser Inc's ability to transfer funds and track all account activity as is required. Any such instance shall hereby result in said Nonprofit having their donate button automatically removed and/or any funds subsequently received to be held in a similar account (herein referred to as “ESCROW”) until such time as access is restored.
8. STATEMENTS AND DISCLOSURES
a.) Hawser considers and expects that all written or otherwise disseminated disclosures, statements, artwork, data representations, images and/or likenesses or entries made or shared by any and all Users are the property of those Users who own all complete unencumbered intellectual property rights or have the required permissions in place from the artist and subjects.
You hereby certify that all written or otherwise disseminated disclosures, representations and statements or entries made are accurate and complete to the best of your knowledge, information reasonably expected to be in your possession and/or known by you and of your belief. All Users hereby authorize Hawser to disclose any information generated from User including but not limited to: artwork, video, audio, text Information provided by Nonprofit or any of it’s agents, affiliates, representatives and/or assigns through the Service and/or related applications and/or network.
User will provide Hawser with any supplemental, changed, new or further discovered information regarding the User’s change and/or potential change in personal information, disseminated claims and/or representations and legal status including but not limited to names of officers, D&O insurance status, D&O policy provider, address, phone number(s), email addresses, 4506-T information and 501(c)(3) status promptly upon awareness thereof as necessary to modify information previously provided to Hawser for payment and/or administrative requirements as outlined in the on-boarding fields, account creation process and/or certified status application.
b.) The provisions of this paragraph shall survive the expiration or termination of this Agreement.
9. NO OBLIGATION:
All Users understand and agree that this agreement does not constitute, in any way, an obligation by either party to the purchase or receive of any goods or services.
a.) All Users including Hawser Certified Nonprofits are granted their access and status including but not limited to “Certified Nonprofit” status at-will by Hawser and are additionally subject to Braintree’s approval process. If a nonprofit or general User is declined such access, status and/or the ability to make or receive payments/donations via the Hawser Network / Site / Service, all Usersmay be required to provide additional information to Hawser and/or Braintree for verification as reasonably required.
b.) All Users attest that all information provided / submitted to Hawser is true and accurate to the best of their knowledge and acknowledge that their relationship with and access to Hawser may be terminated at any time with or without notice. Upon such termination, transaction gateways may be closed which may result in any and all funds collected up to, including and subsequent to the date of said termination, to be forwarded to the designated recipient’s last known address, wired to the last known account on file, held in escrow for the designated recipient in a similar account or returned to the User who intended to donate the funds in question.
In the event any 501(c)(3)’s: API access is interrupted, API access is terminated, bank account is closed or temporarily unavailable at any time including but not limited to the termination of their open access and/or membership to the Hawser network / Service for any reason, it is understood that Hawser may indefinitely hold existing and future funds transacted on their behalf until such time as Hawser is provided with updated account and/or contact information in order to properly direct said funds received on their behalf in the event transactions occur following known permanent account access interruption and prior to Member account deletion. If any 501(c)(3) fails to maintain communication with Hawser, closes accounts or for any reason account access including APIs is limited without establishing or communicating access to new accounts and/or loses federal 501(c)(3) status, Hawser may in its own discretion return the funds collected up to that point to the respective donors.
12. GOODS AND SERVICES
All Users and Members attest to the fact that this Agreement and any future acceptance(s) to make payments including but not limited to donations deposited and/or transferred to Nonprofit(s) on a one time, monthly or any regularly scheduled basis through, by or to Hawser, shall serve as testament that any and all donations are being sent to Hawser Certified Nonprofit(s) without having received any goods, property or services whatsoever from Hawser or their member nonprofits in exchange for said fund transactions and as such are considered willful donations by both the recipient and donor Members.
13. FUNDS IN ESCROW
a.) Hawser retains the right to configure the Marketplace / Service / Site and or transaction platform separately to hold the payment with Braintree’s banking partner, in a Master Marketplace Account (“MMA”) or other payment processing entity’s partner(s) until funds are released for automatic dispersement using APIs provided only that 100% of the amount initially deposited is transferred to the intended recipient(s).
b.) Our goal is to have any and all funds transferred directly to the intended recipient without our ever having to touch or delay those transactions however Banking and Transaction Processing software and Laws change independently of Hawser Inc.'s actions or intentions. In the event payment transaction platform and/or Member receipt of funds becomes dependent upon Hawser holding funds in escrow, Nonprofit agrees to and understands that Hawser Inc. shall act as an Escrow Holding Company in fact and transfer the funds they receive and hold for transfer / disbursement that are intended for the sole distribution to and use of the respective Nonprofit(s) and as such shall maintain a fiduciary responsibility to act in good faith and manage, or engage a reputable and insured institution to manage all funds in a responsible and ethical manner.
c.) All Users understand and agree that these distributions are not be based on any pre-set or pre-determined value, amounts or percentages but shall instead be transferred in accordance with a disseminated time schedule in monthly , bi-monthly or quarterly intervals as determined by Hawser in their sole discretion unless otherwise requested by those donor(s) of major gifts or gifts requiring a good faith estimate as in the instance(s) of: IRA direct, property valued or transacted funds amounting in excess of $10,000.00USD, frequency interval options being elected or a special request for custom scheduling, planned giving and/or timed estate endowments and mutually agreed upon with Hawser. Prior to such distributions, funds may be held in an interest bearing account in the event methods such as bundling these distributions are required of or by Hawser Inc..
d.) All Users further agree that in the event any interest or other benefits and/or interest(s) accrue as a result of holding or transferring those funds those benefits including interest shall remain the sole property, capital, interest and/or earnings of Hawser Inc.. Any and all Users including but not limited to Nonprofits, as well as their subsidiaries, agents, affiliates, assigns, officers and board hereby forfeit any right to or association with said interest, increase in value and/or benefits derived.
14. FIDUCIARY RESPONSIBILITY
Any Hawser agent who provides you with marketing, escrow, transfer, distribution and/or other services owes Certified Nonprofits the following duties:
- Exercise reasonable professional skill and care which meets the practice standards required by law.
- Deal honestly and in good faith.
- Present / Post, in a timely manner, all donations, available analytics and communications to and from member parties / donors.
- Account for all escrow and deposit funds if applicable.
- Disclose all conflicts of interest and/or known negative reception and/or collective impressions amongst users in a timely manner.
- Provide assistance with document preparation and advise the Nonprofit with regards to compliance with known laws that pertain to website hosting requirements and activity.
- Advise the consumer to seek expert advice on known matters related to online activity and transaction data that are beyond Hawser’s expertise. (e.g., Legal , Securities, Taxes and Accounting)
- Keep the Nonprofit informed about site traffic, productivity, account balance transfers, account accessibility, transaction processing alternatives and overall market exposure.
- Disclose financial interest in a service or product such as financial institutions, transaction methods, payment methods, transfer and preparation services, insurance, websites / web hosting, computer hardware, etc…
These provisions shall extend in perpetuity and survive the actual term of this agreement unless otherwise amended by both parties in writing and shall be considered as an Addendum to Hawser’s Terms of Service whether agreed to and/or executed prior to or following the execution and/or acceptance of this Agreement. In the event any 501(c)(3) charitable organization should cease to exist prior to the expiration of this or any other subsequent agreement Hawser shall reserve the right to terminate this and/or any other agreement, as well as remove any transaction gateway(s) and/or accessibility to any/all platform features or functions access upon receiving notice of the organization’s dissolution in writing and shall exercise all reasonable efforts to do.
16. ENTIRE AGREEMENT:
This Agreement, and the Hawser terms of Service, to which this Agreement may be considered an Addendum, constitute the entire agreement between all “Users” and Hawser hereto and each party acknowledges that it is not relying on any statement, understanding or agreement not fully stated herein and that this Agreement supersedes and replaces any prior agreements with the exception of the aforementioned Hawser Terms of Service. Each party hereby expressly waives any and all claims or defenses to enforcement of this Agreement which are based on any statement, understanding or agreement not fully stated herein. .
Any controversy arising out of or relating to this Agreement shall be, prior to any legal recourse, submitted to an arbitration panel convened in the City of Sioux Falls, South Dakota unless all parties agree and can can be dutifully accommodated at a beach of their mutual agreement. The parties will work together, along with their respective associates, employees, partners, officers and assigns to select a single arbitrator or, if no agreement is reached, each shall select an arbitrator, and the two arbitrators jointly shall select a third arbitrator to serve as chairman of the panel. The costs of the arbitration, including the arbitrators’ fees, shall be borne equally between the parties. Attorneys’ fees may be awarded to the prevailing or most prevailing party at the discretion of the arbitration panel. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Section 1-16 (as may be amended) and shall take place in conformance with the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) (without being submitted to the AAA) as in effect at the time of submission. Except to determine the eligibility or continuing eligibility of the chairman of the arbitration panel to serve as such (which shall be determined by the other arbitrators or upon application to a federal court), the chairman alone shall make such decisions as, under the Rules, otherwise would be made by AAA. The arbitration panel shall not have any power to alter, amend, modify or change any of the terms of this Agreement nor to grant any damages in excess of compensatory damages. Judgment upon the award rendered by the arbitration panel may be entered in any court having jurisdiction thereof. This agreement to arbitrate does not constitute a waiver of parties’ right to seek a judicial forum.
18. CHOICE OF LAW:
To the extent not superseded by the SEC, the laws of the State of South Dakota (other than its choice of law provisions that might result in the use of another state’s substantive laws), shall be controlling in all matters relating to this Agreement.
19. MISCELLANEOUS PROVISIONS
a.) Any costs and/or attorneys fees- in the event legal action, including arbitration proceedings is sought or brought forth to enforce and/or interpret the terms of this Agreement, it is agreed that the prevailing party will be entitled to receive the costs of the proceedings as well as reasonable attorney’s fees as determined by the court or arbitrator and a pie.
b.) Binding Effect- This Agreement will be binding upon the heirs, successors and assigns of the parties herein as well as their affiliates, nominees, subsidiaries and such other related Parties.
c.) Choice of Law- This Agreement is entered into pursuant to the laws of the State of South Dakota. All users/parties acknowledge that by using the service they are executing this Agreement and thus party to its terms, All users / Members are subject to the jurisdiction of the South Dakota courts and hereby waive all objections, challenges, and other such defenses to the jurisdiction of a South Dakota Court selected by Hawser for determination of any matter relating to or arising out of this Agreement.
If any provision of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement (including, without limitation, Section 3.3 [the interest in related businesses and assets formed provision] and provisions in Section 4remain legal and enforceable, the remainder of this Agreement shall remain operative and binding on the Parties.