Terms of Service
Aware3, LLC | PO Box 26766 | Kansas City, MO 64106
Last Modified January 31, 2017
1.1. THE COMPANY refers to Aware3, LLC, a limited liability company formed in the state of Missouri.
1.2. THE CUSTOMER refers to you, your organization or your business.
1.3. THE SERVICES refer to any and all services provided by the Company.
1.4. THE SERVICE refers to all of the digital properties maintained by the Company to provide the Services.
1.5. THE TERMS refer to the terms defined in this document. The continued use of the Services constitutes an agreement to the Terms and any modifications of said Terms.
1.6. THE TERM is the period that this Agreement is in effect. All paid service tiers have a one-year Term, regardless of payment frequency.
1.7. CONTENT refers to any Customer-generated and provided copy, graphics, or information distributed through the Site and Services.
1.8. DATA within the context of usage refers to any statistics associated with the Site and Services, including, but not limited to: download counts, session information, push notification statistics, and overall user demographic information.
1.9. END USERS refer to any person interacting with the Services in any fashion.
2. Service Updates.
2.1. Periodically, updates may be released to the Site and the Services. At its sole discretion, The Company may choose to upgrade your Services independently of the original Site and Services as of the date of this Agreement. The Company does not guarantee any updates beyond those deemed by the Company to be required for promised functionality.
3.1. The Site and Services are owned by the Company. This agreement grants no intellectual property rights or otherwise to the Customer in any way. Any changes or enhancements to the Site or Services which result from any development done at the request of the Customer are owned by the Company. The Content is owned by the Customer who is responsible for its validity and legality as described in section 4 below.
4.1. Any Content provided by you through the Site or Services, including Content provided by end third-party users of the Site and Services is your sole responsibility to monitor. YOU AGREE THAT IF CONTENT PROVIDED BY YOU OR YOUR THIRD-PARTY USERS VIOLATES ANY STATE OR NATIONAL LAWS, IS OBSCENE IN NATURE, OR VIOLATES ANY AGREEMENT OF AN OPERATING SYSTEM MANUFACTURER OR NETWORK OPERATOR INVOLVED IN PROVIDING THE SERVICES, THE COMPANY MAY SUSPEND OR TERMINATE YOUR ACCOUNT IMMEDIATELY AND WITHOUT WARNING. Further, you agree not to violate any copyright or ownership rights in any Content you provide to the Site or Services and guarantee that you have sufficient rights to claim and display said Content.
4.2. The Company reserves the right to refuse embedding of external or 3rd-party sites or services.
5. Data & Security.
5.1. The Company will use reasonable efforts to ensure the security of your information, including location and contact information, login credentials, and any Content you provide. The Customer agrees to not hold the Company liable for the loss, corruption or theft of said information.
6. Service Levels.
6.1. The Company will use reasonable efforts to ensure that the Site and the Services are available twenty-four hours a day, seven days a week. Maintenance, upgrades, telecommunication failures, and emergency repairs may inhibit the availability of the Site and Services. YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE, THE SERVICES, YOUR USER CONTENT, OR OTHER CONTENT. In order to provide consistent Services, the Company retains the right to create limits on use, storage, bandwidth or consumption in general in its sole discretion at any time with or without notice.
6.2. Certain components of the Services rely on the Customer establishing and maintaining relationships with third parties (including but not limited to Apple, Inc. and Google, Inc.). The Company is not responsible for the maintenance of these relationships, nor any disruption in the Services as a result of any third-party issues.
7. Data Ownership.
7.1. Any data associated with the usage of the Site and Services is property of the Company to use as it sees fit. Usage data and supporting facts may be publicly disclosed by the Company and may or may not be directly associated with the public-facing title of your Company or Service. Additionally, the Company reserves the right to utilize any public-facing Customer-contributed Content as it sees fit, including but not limited to redistribution through other Services.
8.1. The Company will not disclose or sell any personal information not already publicly available to any third party. This information includes the Customer’s contact information and any contact information contained with the Customer’s content.
9.1. The Company will provide a method of contacting support channels. This method may be limited to any combination of email, phone, and instant messaging services. The Company will provide an initial response to an inquiry made through an approved support channel within forty-eight hours.
10. Pricing & Billing.
10.1. The Site and Services are provided for an incremental recurring fee. This fee may increase or decrease in any term period, not to increase more than 100% in any Period as defined by the Terms, unless otherwise agreed to by both parties.
10.2. The Company reserves the right to charge an additional fee to host the Services under a Developer account not maintained by the Company.
11. Transfer of Agreement.
11.1. This Agreement may not be transferred from the Customer to any other party without the consent of the Company. The Company may transfer this agreement in part or whole as it sees fit.
12.1. In the case that this Agreement is updated, a dated notification will be posted on the Company Site. YOUR CONTINUED USE OF THE SITE AND THE SERVICES IS A BINDING AGREEMENT TO THE TERMS OF SERVICE AND THIS AGREEMENT. You are responsible for regularly reviewing the most current version of the Terms of Service, which are currently available at: http://www.aware3.com/terms-of-service. When the Company changes these Terms of Service, the Company will modify the “Last Modified” date above.
13.1. Children’s Online Privacy Protection Rule. The Site and the Services are not designed for use by children under the age of 13 without constant adult supervision from a parent or legal guardian.
13.2. The Telephone Consumer Protection Act. In situations where The Telephone Consumer Protection Act (TCPA) is applicable, the Customer is responsible for obtaining consent from any End User engaged with the Services.
14.1. Any activity deemed illegal or inappropriate may result in the immediate suspension or termination of your access to the Site and the Services. Under no circumstances may the Customer use the Site or Services to (a) send unsolicited e-mails, bulk mail, spam or other materials to users of the Site, the Services or any other individual, or (b) post any false, inaccurate or incomplete material or delete or revise any material that was not posted by the Customer or others you have authorized to post Content under your account.
15.1. The Customer will indemnify and hold the Company, its directors, officers, and employees harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, your violation of this Agreement, or the infringement by the Customer, or any third party using the Customer’s account, of any intellectual property or other right of any person or entity.
16. Limitation of Liability.
16.1. IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR MEMBERS BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT. THE COMPANY’S AND THE SITE’S COLLECTIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE (1) MONTHLY SERVICE CHARGE, ESTABLISHED IN THE FIRST MONTH OF THE CLIENT’S USE OF THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO THE USER.
17.1. Either party may terminate the Services at any time by notifying the other party by any means. The Company may also terminate or suspend any and all Services and access to the Site immediately if any terms in this Agreement are breached. In this case, termination will be immediate, upon which the Customer’s right to use the Services, access the Site and any content uploaded to the Service will cease. In either case, if any payment past the current-term fees have been paid, said payment will be reimbursed to the Customer, unless otherwise documented.
17.2. If the Customer terminates the Agreement prior to the Term expiration, the Company shall charge the Licensing Fee remaining balance and any applicable billing interval Minimum Volume Fees within two calendar weeks of the date of termination.
17.3. If requested by the Customer, the Company shall make reasonable efforts to transfer the app to an external developer. The Customer agrees to not hold the Company liable in the event that said transfer is not possible with reasonable effort or without sharing proprietary Company data, logic or configuration. In the event of a transfer request, the Company shall charge a fee of $399 upon successful execution of the transfer.
18. Choice of Law.
18.1. This Agreement is to be interpreted under the Laws of the State of Missouri and all actions or claims arising from this Agreement are subject only to the jurisdiction of The Circuit Court of Clay County, Missouri or The United States District Court for the Western District of Missouri.
19.1. A licensing fee (the “Licensing Fee”) shall commence immediately following the initial service payment authorization, and is automatically charged at the frequency defined during the initial authorization.
19.2. Customer-requested changes that require resubmission of the apps to Apple and/or Google shall be subject to a $199 fee. Customer-requested changes that require resubmission include, and are not limited to:
19.2.1. Modifying the app icon
19.2.2. Modifying the app name
19.2.3. Modifying the app splash screen
19.2.4. Modifying the screen shots included in the app store
19.3. Guaranteed Giving Increase
19.3.1. If covered by the Customer’s Plan, the Customer is guaranteed a 5% increase in their online giving as compared to the prior year.
19.3.2. The Customer is required to provide a statement showing the online giving total for the prior year for comparison purposes.
19.3.3. If the Customer does not experience a 5% increase, the Company shall refund the Aware3 service fee (the “Licensing Fee”) for said period.
19.3.4. Eligibility requires the Customer to meet the Minimum App Promotion Guidelines defined at: https://aware3.zendesk.com/hc/en-us/articles/204467144-Promoting-Your-Mobile-App
19.4. Tiers of service which do not implement a standard monthly fee for the Services require that the Customer process a minimum of $900 in gifts per calendar month. If the Customer processes less than the minimum required, a $49 fee shall be assessed. A 1-month grace period shall apply from the date of agreement execution.
19.5. Any modification of the pricing of the Service shall occur in the next billing cycle. For example, if a change is requested on March 4th and the billing cycle starts on March 1st, the modification shall take effect on April 1st.
20. Giving Terms
20.1. Utilization of any Company giving product inhibits the use of a 3rd-party giving product within a Company-owned property (e.g., within a Customer’s branded mobile app).
20.2. Utilization of the web-based Company giving product requires a direct link to the giving page from the Customer’s web site navigation. This restriction includes the usage of embedding technologies (e.g., iFrames).
20.3. The Customer is required to maintain an active relationship with Nelnet Transaction Solutions (NTS) as their payment gateway for Aware3-powered giving channels.
21. Term Period.
21.1. Upon Term expiration, the Agreement shall be automatically renewed with the same interval.
22.1. The Company reserves the right to change the scope of services at any time.
23. Key Assumptions.
23.1. The Company shall submit the app to Apple and Google under the Company’s developer license.
23.2. The Customer shall provide all branding and graphics assets as defined by the Company.