SERVICE AGREEMENT WITH BENEFICIARY

 

The provision of services by the lastminute foundation, with headquarters at Vicolo dei Calvi 2, Chiasso SWITZERLAND (hereinafter referred to as the Foundation) via the crowdfunding platform called “lastminute heroes” or “lmheroes” (hereinafter referred to as HEROES or Platform) in favour of the subject (hereinafter referred to as the Beneficiary) that wishes to propose a crowdfunding Project (hereinafter referred to as the Project) is subject to the following terms and conditions.

AGREEMENT    

[ Art. 1. ]The signing of this agreement shall occur exclusively in digital form, by means of express acceptance by the Beneficiary of the terms and conditions published on the website www.lastminuteheroes.org. In special cases, the Foundation may require the signing of a paper agreement, for any reason.

[ Art. 2. ]By means of this Agreement, the Foundation makes available free of charge to the Beneficiary its crowdfunding platform in order to collect donations for a Project, and the Beneficiary commits to using it in good faith, agreeing to and respecting the terms and conditions of this agreement.

[ Art. 3. ]The Beneficiary can access the Foundation’s service by creating an account, i.e. by registering on the website www.lastminuteheroes.org (hereinafter referred to as the Website) and obtaining a “Username” and a “Password”. At this stage, the Beneficiary is asked to agree to this Service Agreement.

Once registered, the Beneficiary may use the Website to develop its own crowdfunding project.

PLEASE NOTE: in order to preserve the interests of all users and Donors, the Foundation reserves the right to suspend or cancel an account at its discretion in the event of misuse or breach of the Website’s policies, or even in the event of mere suspicions that are sufficiently grounded on the basis of experience.

[ Art. 4. ]The Beneficiary is identified in the account registration procedure as a non-profit entity operating within the framework of its activities, not as a consumer within the purview of Art. 2 of European Union Directive 2011/83/EU.

In this regard, the Beneficiary represents and warrants that the person carrying out the registration is an individual aged 18 or over, of sound mind, duly empowered to obligate the Beneficiary.

The Beneficiary commits to providing data and information that is exact, truthful, not misleading or otherwise aimed at concealing its identity. The Beneficiary acknowledges and agrees that the Foundation is entitled to verify the identity of the Beneficiary at any time, directly or through authorised third parties, such as payment services providers. The Beneficiary therefore commits to cooperating with the identification procedure promptly and in good faith by providing the required information and documents.

The Foundation is authorised to link the login credentials to the IP addresses of the devices used in order to perform periodic monitoring of how the website is used, and to improve its usability and security.

[ Art. 5. ]By agreeing to these conditions, the Beneficiary commits to being qualified as a charity, an NPO (Non-profit Organisation) or as an organisation that, in its country, enjoys a status entailing individual legal situations (e.g. favourable tax treatment, public control, etc.) or alternatively to declaring that it is not subject to registration. In such cases, the Beneficiary commits to providing exact and precise information on their legal status, including the existence of authorisations, permits or licences to operate.

Moreover, the Beneficiary undertakes to keep such authorisations, permits or licences updated, if required by local regulations, and to provide any relevant document to the Foundation upon e-mail request, allowing the Foundation to forward such information henceforth to anyone who might have an interest in it.

If the Beneficiary is an organisation that, in its country, enjoys a status entailing individual legal situations, the Beneficiary undertakes to inform via the Platform its donor Donors about the tax benefits this entails.

[ Art. 6. ]The Beneficiary undertakes to safeguard its login credentials and to back up all the uploaded content. Therefore, the Beneficiary shall not in any way hold the Foundation liable in this regard (including, but not limited to: breach of login credentials, unauthorised access, unauthorised extraction of data, alteration of data or information, blanking out of web pages, etc).

In any case, the Foundation is authorised to keep browsing logs, consistently with its Privacy Policy in force, and to terminate the account in the event of misuse.

PROJECT

[ Art. 7. ]The Beneficiary shall proceed autonomously to publishing a Project on HEROES, using only the uploading forms offered by the website. The Beneficiary is solely responsible for the files, images and content that are posted, expressly exonerating the Foundation from any liability with regard to the legality, fairness, and reliability of the Project, while accepting that the Foundation may carry out any inquiry in this respect.

[ Art. 8. ]The Beneficiary certifies that it owns the intellectual property rights of the Project, and that this in no way harms the rights of any third parties.

The Beneficiary undertakes to upload only content, images and/or videos for which it has valid rights of use, or content, images or videos that can be freely used and that do not constitute an infringement of third party rights.

The Beneficiary undertakes not to import any files or content owned by a third party that are not legally available for use, or are in any situation of legal uncertainty regarding the ownership and availability of intellectual property rights. The Beneficiary undertakes to indemnify and hold harmless the Foundation for any liability dependent on or linked to content imported by the Beneficiary.

Likewise, the Beneficiary undertakes not to publish data, news or information in any way likely to unlawfully harm the rights or interests of third parties.

In case of complaint from anyone regarding the legitimate use of imported files, the Foundation reserves the right to make any assessment about whether to suspend the display of the content generated via the disputed files, until there is a ruling by the authorities or an agreement between the disputing parties.

In the event of this Agreement terminating for any reason, the Beneficiary shall not be able to retrieve its own content, and must therefore ensure it has back-up copies of the uploaded content.

[ Art. 9. ]The Beneficiary undertakes to take all the appropriate IT security measures designed to ensure that files and documents uploaded on HEROES are (and always remain) free of viruses and, in general, that they cannot compromise in any way the hardware or software of those who view or download it.

The Beneficiary undertakes to upload images and/or videos that are lawful, relevant to the Project or descriptive of it, with no political/religious discrimination, violent or pornographic features. The Foundation in any case reserves the right to remove, without notice, content and projects considered, at the discretion of the Foundation’s Board, not consistent with the Platform’s manifesto of principles and/or the Foundation’s objectives as set forth by its by-laws.

The Beneficiary shall ensure that a security backup is made of every uploaded file before uploading it, so as to prevent any accidental damage to its intellectual property.

[ Art. 10. ]The Project cannot in any way relate to activities connected to the following:

  1. drugs
  2. gambling or betting
  3. tobacco and cigarettes
  4. weapons of any kind and their accessories
  5. pornographic or sexual products or services
  6. shares, bonds, currencies, financial instruments or securities of any kind
  7. products or services that lead to breaking the law or breaching regulatory or administrative provisions
  8. products or services that infringe third party intellectual property rights

Moreover, the Beneficiary shall not use the Project in any way for the purpose of carrying out, fostering or promoting lotteries, raffles or sweepstakes or games of chance, as well as competitions with prizes (in Italy) even when they entail charitable purposes.

In any case, the Foundation reserves the right to refuse to publish the Project or to suspend the campaign, whenever a Project is not compatible with the Foundation’s image or reputation.

CAMPAIGN

[ Art. 11. ]The Beneficiary and/or the Platform may provide the public with rewards (hereinafter Rewards) for the financial contributions requested via the Project.

Such Rewards may consist of low value items or services, and in any case of a value not linked to the value of the contributions received. In no event shall Rewards consist of monies or goods or the services referred

[ Art. 12. ]When Rewards are offered, the Project must clearly state the type and quality of Rewards; in the case of clothing items, it should clearly indicate the sizes and colours available.

The Beneficiary undertakes to provide Donors with Rewards whose quality is not inferior to that displayed and offered in the Project, and in general to respect all its commitments that are undertaken by the promises relating to Rewards.

                   The promise of Rewards shall not be deceptive, spurious, untruthful or unattainable.

Unless otherwise clearly specified in the Project, the Beneficiary commits to sending promptly to the Donor the promised Rewards, or to respecting the deadlines published in the Project.

[ Art. 13. ]The Beneficiary acknowledges that the Foundation has the right, but not the obligation, to support and promote the Project by offering Rewards that are made available free of charge or for payment by third parties, maintaining the broadest discretion with regard to the types of reward offered and to the third parties providing Rewards.

The Reward offering by third parties may also have advertising functions, entailing the Project being associated to third parties involved in the delivery of Rewards.

In this regard, the Beneficiary hereby grants to those third parties any right of use of the image, the distinctive signs and materials covered by ownership rights or copyright (including trademarks, logos, photographs, videos, etc.) relating to the Beneficiary and/or the Project, limited to and in order to serve the Project’s communication and promotion requirements, as well as to its documentation and subsequent description.

[ Art. 14. ]The Beneficiary undertakes to adopt with Donors the Foundation’s standard conditions. Any derogation from the agreement must be approved by the Foundation in writing.

[ Art. 15. ]Every accounting, tax and administrative fulfilment relating to the donations received is the exclusive competence and responsibility of the Beneficiary, which shall therefore promptly issue billings, declarations, certifications and anything else set forth by law or requested from the Beneficiaries to enjoy tax benefits.

[ Art. 16. ]The Donor shall issue funding through the payment services available, which are managed entirely by payment institutions or service providers chosen at the discretion of the Foundation; if there is more than one service provider, the choice will be made by the Donor. If the Foundation were to change service providers, this could result in temporary disruptions such as the brief suspension of features or of various procedures. In this regard, the Beneficiary exonerates the Foundation from any liability.

[ Art. 17. ]Unless otherwise stated by contractual conditions applicable to specific services, the service provider shall transfer to the Beneficiary the amounts received without withholding commissions, which shall be charged and invoiced to the Foundation, with the latter also bearing any additional bank fee. Transfers in favour of the Beneficiary shall be performed at the frequency that will be agreed upon between the Foundation and the payment service provider.

[ Art. 18. ]The transfer of sums donated to the Beneficiary will be made within the limits of 80% of the amounts donated.

The balance will be transferred to the Beneficiary only upon Project accounting: within sixty days from the fundraising completion, the Beneficiary must provide the Foundation with an accurate report that documents how the sums raised have been used and how the Project has been implemented. In the event of demonstrable need, the Beneficiary may request from the Foundation an extension for the submission of this report.

If the report is not submitted within the deadline or is not satisfactory, the Foundation may retain the balance as a penalty and redirect it within six months to other similar projects, and it may update the Project page on the website reporting this.

[ Art. 19. ]The Beneficiary acknowledges the significant occurrence of chargeback the use of credit and debit cards and the slowness of communications for cancellation by the payment services providers. Therefore, the Beneficiary shall immediately return the object of disputed amounts within twelve months from each payment, in all cases of "chargeback" by the payment services provider, ie in each case the current contracts allow the payment services provider and / or payment services provider of the credit card or other means of payment to obtain the refund of the amount paid. Such reimbursement will take place in the face of mere display to the Beneficiary by the Foundation, of the chargeback declaration received by the service provider; However, if the Foundation is still in possession and / or in the holdings of funds whch should be owned by the Beneficiary, even if drawn on various transactions, Foundation can provide directly and independently to charge back, to the Beneficiary. If the Beneficiary fails spontaneously and the Foundation can not make deductions and / or compensation to the funds which should be owned by the Beneficiary, after 15 days from the formal notice, the Beneficiary will be required to pay the amount owed to the Foundation, in addition to a penalty equal to 10% of this amount and the interest at the interest rate set by the ECB.

[ Art. 20. ]The Foundation may cooperate with payment service providers in gathering the information and documents necessary for the identification of the Donor and/or that are required by money laundering regulations, but any liability relating to the management of payment services is solely the responsibility of the tasked service provider.

To use payment services it is essential to provide the information and documents requested by the payment service provider, and to be cleared by money laundering checks; the documents to be provided to the service provider via the tools provided by the Foundation include the following:

  1. for other organisations (associations, NGOs, clubs, etc.):
  • a description of the Organisation’s activities
  • a copy of the foundation deed and/or by-laws (or any other documents proving the purpose of the organisation) with a declaration by the management body confirming that this is the latest version
  • a tax document of the organisation
  • proof of identity and residence of the legal representative
  • proof of residence not older than three months (e.g. a bill, invoice, tax receipt, etc.)
  • evidence of a bank account (e.g. IBAN or banking details indicating the account number)
  • identity document (identity card or passport)

[ Art. 21. ]Notwithstanding everything described below in articles 24–27, the Foundation reserves the right to change without notice the content, languages, layouts, graphics, size, colours of the Website and the pages in which the Project is presented. It also reserves the right to insert, add, edit, and otherwise manage completely freely said pages, by adding, removing, overlapping information, communication, advertising, pictures, banners and any other content it deems necessary.

[ Art. 22. ]The Foundation does not guarantee that HEROES or its content, services or functionalities are error-free or continuously available, or that any defects will be corrected, or that the use of HEROES by the Beneficiary will entail specific results. The HEROES Platform and its contents are provided “as is”, depending on availability.

The Foundation shall in no way be held liable for the modes of use and efficiency of the hosting service and the performance of the bandwidth offered by its supplier. In addition, the Foundation reserves the right to change the provider of hosting services at any time by offering different terms, volumes or bandwidth, reserving the right to suspend the use of the Platform for the time that is strictly necessary to migrate data.

[ Art. 23. ]The Foundation expressly reserves the right to do the following, at any time and without notice:

(1) modify, suspend or interrupt the functionality or access to HEROES or parts thereof

(2) modify or change HEROES or parts thereof and any term or condition relating to its use

(3) interrupt the functionality of HEROES or parts thereof if it becomes necessary to perform routine or extraordinary maintenance, error correction, or to make other changes

[ Art. 24. ]The Foundation reserves the right to change the terms of delivery of all services, both free and paid, as well as these terms and conditions, by providing fifteen days’ notice.

Any contractual modification or variation shall enter into force immediately, as soon as the new version of the agreement is published online. However, if the changes affect the contractual rights or interests of the Beneficiary, the latter may withdraw from the agreement, within thirty days of the agreement’s amendment, on the understanding that in that period the new terms shall apply.

INTELLECTUAL PROPERTY

[ Art. 25. ]In consideration of the services received, the Beneficiary grants the Foundation a free, irrevocable licence and without any time limit for the use of its logo, its image, its contents, and of any project page, including images and videos, including the right to sublicense.

Such a licence can be used by the Foundation to promote the Platform itself and fundraising via all channels, for the purposes of communication, education, of study and analysis, and may be extended to partners, employees, advertising agencies and research institutes, at the sole discretion of the Foundation. If the aforementioned rights are owned by third parties, it is the exclusive responsibility of the Beneficiary to ensure the licence is transferred to the Foundation.

[ Art. 26. ]Any trademark, whether registered or unregistered, owned by the Beneficiary is and remains the exclusive property of the Beneficiary. Any registered or unregistered trademark owned by the Foundation or its partners, suppliers or customers, is and remains the exclusive property of the Foundation or those third parties; by committing to mentioning the Foundation and HEROES in any credits for any multimedia work that incorporates or includes content relating to the Project, the Beneficiary undertakes to respect the rights of the Foundation on its distinctive signs, including slogans and/or pay offs.

[ Art. 27. ]Any text, graphics, visual interface, photo, trademark, logo, sound, music, artwork and computer code or other materials that are part of the HEROES Platform, including without limitation the design, structure, selection, coordination, expression, appearance and arrangement of such content, belong to or are controlled or licensed by the Foundation and are protected by copyright laws, patents and trademarks, as well as by national and international laws on intellectual property rights and unfair competition.

[ Art. 28. ]Except as expressly set forth by this Agreement, it is forbidden to copy, reproduce, republish, upload, post, publicly display, encode, translate, forward or distribute any part of the HEROES Platform and its contents on any computer, server, website or other medium intended for publication, distribution or for any commercial purpose without the written consent of the Foundation.

LIABILITY

[ Art. 29. ]The Beneficiary undertakes to indemnify and hold harmless the Foundation from all losses, damages, liabilities, costs, charges and expenses, including legal fees, that may be borne or incurred by the Foundation as a result of any failure on the part of the Beneficiary in respect of the obligations and guarantees provided for in this agreement and in any way related to uploading own content, including in the event of damages claimed by third parties for any reason.

 

[ Art. 30. ]The Beneficiary commits to not using HEROES in manners contrary to the law or to agreements of any kind contracted with third parties, committing to indemnifying and holding the Foundation harmless from any claim for compensation.

Despite the Foundation not having any obligation in this regard, the Beneficiary grants the Foundation the right to verify the final result of the content generated and uploaded on HEROES, for the sole purpose of verifying that such content is not illegal, obscene, pornographic, such as to harm the interests of minors or of religious or cultural communities, or such as to be manifestly likely to violate laws or the rights of third parties. In such cases, as well as in all cases where the legitimacy of the content is questionable, the Foundation reserves the right to suspend the effectiveness of this agreement, with any compensation or damages being ruled out.

[ Art. 31. ]In the event that, independently of any other provision of these Terms of Use, the Foundation is held liable to the Beneficiary for any damage or loss stemming from or related to the use of HEROES, the liability of the Foundation shall in no event exceed CHF 1,000.00.

[ Art. 32. ]The Foundation reserves the right to forbid access to HEROES or to the Project pages for one or several persons, at its sole discretion and without prior notice for reasons including but not limited to the following:

(1) on request by law enforcement or other government agencies

(2) on request by the Beneficiary

(3) suspension or substantial change of the HEROES Platform or any service offered on or through HEROES or

(4) technical difficulties or unexpected issues

The Foundation is not liable in any way towards the Beneficiary or any third party for the consequences of the interrupted access to HEROES due to violation of these terms of use or, in general, of contractual terms.

[ Art. 33. ]The Parties mutually grant each other consent for the processing of their personal data in accordance with the law.