OPEN COLLECTIVE TERMS OF SERVICE

Last Updated: 27th January 2017

These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online products and services (collectively, our “Platform”) provided by Open Collective Inc. (“Open Collective” or “we”). By creating an account or otherwise accessing the Platform, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 18 that applies to residents of the United States, do not access or use our Platform.

If you have any questions about these Terms, you may contact us at support@opencollective.com.  Please refer to our Privacy Policy (to be published) for information about how we collect, use and disclose information about you.

  1. Overview of Our Platform

  1. Our Platform provides a platform that may be used by an organization or group with a shared purpose (a “Collective”) to work with a Host that can enable the Collective to collect and disburse funds for expenses that support the Collective.  The goal of our Platform is to promote transparency and make it easier to track incoming and outgoing funds for the benefit of the Collective. Below is a list of the different roles that may be associated with each Collective:
  1. For clarity, our Platform does not store or transmit funds.  All funds are stored by Hosts, and the Platform is integrated with third-party payment services that process any contributions or disbursements.
  2. You acknowledge and agree that: (i) Open Collective is not a party to and has no responsibility or liability with respect to any communications, transaction, interactions, disputes, or any relationships whatsoever between users; (ii) Open Collective does not have any responsibility to investigate or verify the reputation, conduct, morality or criminal background of any user; and (iii) Open Collective has no responsibility with respect to determining or paying applicable taxes with respect to the Collective or any users.
  1. Eligibility

  1. You must be at least 18 years of age to access or use our Platform. If you are accessing or using our Platform on behalf of another person or entity, (i) you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be bound by these Terms and to be responsible to us if you violate these Terms, and (ii) references to “you” will mean you and that person or entity, collectively. To use the Platform you represent that you have never committed, participated in, or been prosecuted for fraud.

  1. You may not access or use our Platform if you are located in a jurisdiction where the provision of our Platform is prohibited by law (a “Prohibited Jurisdiction”), and you may not provide access to our Platform to any entity or individual located in any Prohibited Jurisdiction. You represent and warrant that: (i) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; and (ii) you are not a national of, or a company registered in, any Prohibited Jurisdiction.
  1. User Accounts and Account Security

You may need to register for an account to access some or all of the Platform. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are responsible for all activities that occur in connection with your account and accept all risks of unauthorized access.

  1. Terms for Backers

This Section applies to you if you use the Platform as a Backer.

  1. Responsibility. Before committing to make any contribution via the Platform, each Backer must (i) read the full description of the Collective and its mission, and (ii) review the criteria and process requirements specified by the Collective and its Host (if any) for receiving expense reimbursements. By contributing to the Host for designation to a Collective, you agree to look solely to the applicable Members or Host of the applicable Collective to resolve any questions or disputes regarding contributions or expected reimbursements.

  1. Contributions. Each contribution you make is paid directly to the Host of the Collective. The contribution is held by the Host, and our Terms require the Host to use the full amount (less our transaction fees, any third-party payment service fees and any Host fees specified via the Platform) in support of the Collective you have designated. Our Platform allows you to use and store a payment method via the Platform that is acceptable to us (“Payment Method”) to pay for any contributions or to receive any expense reimbursements. You represent and warrant that you are authorized to use the Payment Method. You authorize our designated third-party payments processor to charge the amount specified to your Payment Method for any contribution you authorize via the Platform.  If the Payment Method cannot be verified, is invalid, or is not otherwise acceptable, your contribution may be suspended or cancelled automatically. Some Payment Methods may be offered as separately branded payment services (such as PayPal), and you agree to comply with the terms of those services.

  1. Recurring Payments. You may authorize a recurring contribution to a Host for designation to a Collective by indicating as much through the Platform (“Recurring Contribution”). For a Recurring Contribution, you are authorizing our designated third-party payment service to charge the amount specified to your Payment Method on the day that the initial contribution is made and to charge the same amount at the beginning of every calendar month thereafter (or the beginning of every year if the renewal period is annual). For example, if you initiate a recurring payment of $10 on January 25th, you will be charged $10 on that day, and $10 on February 1st and the first day of every calendar month thereafter until you cancel. WHEN YOU INITIATE A RECURRING CONTRIBUTION TO A HOST FOR DESIGNATION TO A COLLECTIVE, YOU EXPRESSLY AGREE THAT OUR THIRD-PARTY PAYMENT SERVICE IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS (OR ANNUAL BASIS IF SPECIFIED VIA THE PLATFORM) FOR THE SAME PAYMENT AMOUNT UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING YOU ACCESS TO THE PLATFORM IN ACCORDANCE WITH THESE TERMS.

  1. Cancellations. Backers can cancel or change the amount of a Recurring Contribution via opencollective.com/subscriptions.

  1. Refunds. Except as provided in these Terms, ALL CONTRIBUTIONS ARE FINAL, AND THERE ARE NO REFUNDS. You agree (i) to look solely to the Members or Host of an applicable Collective to resolve any disputes regarding contributions that you make via the Platform, and (ii) that the Organizer or Host are solely responsible for providing any refunds. Any refunds initiated by an Members or Host via the Platform may be credited to the Payment Method maintained in your account.
  1. Terms for Organizers

This Section applies to you if you use the Platform as an Organizer.

  1. Each Organizer must (i) ensure that the mission and purpose of the Collective are accurately and clearly disclosed via the Platform at all times; (ii) ensure that a Host has been designated for the Collective that is acceptable to Open Collective; (iii) set the parameters (including amounts to be contributed) for participation in the Collective by Backers and Sponsors, including the recognition or other items provided to Sponsors in connection with a contribution; (iv) ensure that the Collective page provides clear and accurate descriptions regarding the criteria and process for approving Requestor expense reimbursements; (v) verify the accuracy of any request for payment by a Requestor before approving the payment via the Platform; (vi) only approve payment requests for legitimate activities of Requestors made in support of the Collective and its mission; and (vii) fulfill any Recognition (described in Section 6 below) offered for Sponsors by the Collective in connection with their contributions.

  1. Each Organizer further will (i) comply with all laws, rules and regulations applicable to the Collective’s activities; (ii) ensure that all payment transactions associated with a Collective are disclosed via the Platform, including contributions and expense reimbursements; (iii) maintain up-to-date contact information on the Collective’s page, so that the Collective’s Host, Backers and Sponsors can contact the Organizer; and (iv) promptly respond to inquiries from a Collective’s Backers, Sponsors and Hosts regarding the Collective’s activities.

  1. Terms for Sponsors

This Section applies to you if you use the Platform as a Sponsor.  For clarity, Sponsors are Backers and also subject to Section 5 of these Terms.

  1. Recognition.  Sponsors receive certain advertising, marketing, or other recognition (“Recognition”) in exchange for their contributions.  Subject to these terms, all Sponsors will receive the following Recognition: logo placement on the Collective page together with a link to the Sponsor’s profile page (“Baseline Recognition”).  Sponsors may receive additional Recognition if specified by an Organizer within the applicable Collective page.  Each Sponsor acknowledges and agrees that any Recognition beyond the Baseline Recognition is provided solely by the Organizer and the Host of the applicable Collective, and that Open Collective is not responsible for fulfilling any, and does not make any representations or warranties with respect to, such supplemental Recognition offered by the Collective. Sponsors agree to look solely to the applicable Host or Organizer regarding receipt of any supplemental Recognition.

  1. Intellectual Property Rights. To receive Baseline Recognition, Sponsors must provide a logo or similar branding material via the Platform.  To the extent Sponsor provides any trademarks, trade names, logos or other branding materials to Open Collective (“Sponsor Marks”), Sponsor hereby grants (i) to Open Collective a non-exclusive, sublicensable license to use and display the Sponsor Marks via the Platform for purposes of fulfilling the Baseline Recognition and any supplemental Recognition offered by the applicable Collective, and (ii) to the Organizer, a non-exclusive, non-transferable license to use and display the Sponsor Marks as mutually agreed upon by the Sponsor and the Organizer in connection with any supplemental Recognition.  

  1. Terms for Hosts

This Section applies to you if you use the Platform as a Host.

  1. Set-Up. Any person or entity seeking to serve as Host for a Collective must be approved via the Platform. All Hosts must acquire and maintain a valid financial account with one of the third-party payment services specified and designated by Open Collective, and agree to, and comply with, any applicable terms of those third-party services.

  1. Contributions. You agree to accept contributions of funds from Backers for designation to a specific Collective (“Collective Funds”). You must take accounting measures to segregate Collective Funds from your other funds, and maintain and use the Collective Funds solely for the benefit of the designated Collective and in accordance with these Terms.  The Platform is designed to assist you in satisfying these responsibilities, by enabling you to export the global ledger and helping you to track the budget of each Collective to determine whether the Collective is operating as intended.

  1. Expense Reimbursements. You may receive requests (“Requests”) for payment of Collective Funds from Organizers in connection with expense reimbursement requests submitted by Requestors. Requests must be approved by a Member through the Platform before they are eligible for reimbursement. You are responsible for reviewing Requests to confirm that they meet the Collective’s applicable criteria and process requirements for reimbursement of expenses, and only authorizing disbursements if the Request meets such requirements and is permitted under applicable law. If the Request meets such requirements, you will authorize disbursement of the applicable amount of Collective Funds via the Platform.

  1. Host Fees.  You may charge a reasonable fee to the Collective in exchange for providing host services,.  You must disclose this fee clearly and conspicuously in advance of accepting any Organizer’s request that you serve as a Host for a Collective.

  1. Tax Deduction. You are responsible for providing any tax receipts, if applicable, to Backers who make contributions.  Our Platform helps facilitate your compliance responsibilities by issuing receipts to Backers. However, you are responsible for providing all the details that will appear on those receipts to make sure that they can be tax deductible receipts (if applicable).

  1. Compliance. You must comply with all applicable laws, rules and regulations in connection with your Host activities, including money transmission, record keeping, accounting, tax, and other compliance requirements. You represent and warrant that (i) you have full power and authority to perform the obligations to the Collective; (ii) your use of the Platform, and performance under these Terms, will not violate any contractual or other restrictions applicable to you or any applicable law, rule or regulation.

  1. If a Collective is terminated with an outstanding balance of Collective Funds, you will use or disburse the remaining funds in accordance with applicable law and your bylaws (if applicable).

  1. Requestor Terms

Requestors must only submit requests via the Platform for reimbursement of expenses they actually incurred in support of a Collective. Any reimbursement request made through the Platform must include a valid invoice or receipt indicating the expenses actually incurred by the Requestor, and any other information required by the Host or Members of that Collective. Requestors are solely responsible for submitting accurate information via the Platform for their designated payment account. At the minimum, such expense or invoice should include the date, the full legal name and address of the provider of the good or service and the final amount paid, including VAT if applicable.  This information is not automatically published by us via our Platform, and we we require Hosts and Members via these Terms not to disclose the information to third parties.

  1. Fees

  1. Fees to Open Collective. We collect a fee equal to 5% of all contributions (the “Open Collective Fee”) made via the Platform by Backers. The Open Collective Fee is deducted at the time that a contribution is made to the Host. 

  1. Fees to Host. The Host may retain a percentage of all contributions (the “Host Fee”). Hosts must disclose this fee to the Organizer and the Backers on the Collective page.

  1. Third-Party Payment Service Fees.  If you use a separately branded third-party payment service (such as PayPal) to accept payment or reimburse the expenses submitted, the party responsible for that service may charge additional fees.

  1. Taxes. It is the Host’s responsibility to determine what, if any taxes apply to collection of contributions and disbursement of expense reimbursements, including, for example, sales, use, value added, and similar taxes. It is also the Host’s responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. Open Collective is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from any transaction completed via the Platform.
  1. User Content

  1. Our Platform may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Open Collective.

  1. You grant Open Collective and its affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Platform, you understand that your User Content and any associated information (such as your username or profile photo) will be visible to the public.

  1. You may not to create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time if we believe it is in breach of these Terms.
  1. Conduct and Content Requirements

You must comply with the Open Collective Community Guidelines. You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Platform. You will not:

You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

  1. Open Source Software

 The source code for much of the software that supports our Platform, is available for download as open source software.  You agree to be bound by, and comply with, any license agreement that applies to this open source software.  You will not indicate that you are associated with Open Collective in connection with any of your modifications or distributions of this open source software.

The source code we release in connection with open source software is not part of the Platform. For clarity, though, when we host any software and enable you to access and use such software as a service through our websites and apps, then these Terms will apply to such access and use.

  1. Limited License; Copyright and Trademark

  1. Our Platform and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Open Collective Content”) are owned by or licensed to Open Collective and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Open Collective and our licensors reserve all rights in and to our Platform and the Open Collective Content. 

  1. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Platform and Open Collective Content for your own personal use; however, such license is subject to these Terms and does not include any right to (i) sell, resell or commercially use our Platform or Open Collective Content; (ii) copy, reproduce, distribute, publicly perform or publicly display Open Collective Content, except as expressly permitted by us or our licensors; (iii) modify the Open Collective Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Platform or Open Collective Content; (iv) use any data mining, robots or similar data gathering or extraction methods; and (v) use our Platform or Open Collective Content other than for their intended purposes. Any use of our Platform or Open Collective Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
  1. Feedback

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Open Collective or our products or Platform (collectively, “Feedback”), is non-confidential and will become the sole property of Open Collective. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

  1. Copyright Complaints

We have a policy of limiting access to our Platform and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Platform infringes any copyright that you own or control, you may notify Open Collective’s Designated Agent as follows:

Designated Agent: DMCA Requests        

Address:        Opencollective, Inc., 340 S LEMON AVE #3717

Walnut CA 91789

                

Telephone Number: +1  (802) 489-6736

E-Mail Address:        info@opencollective.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Platform is infringing, you may be liable to Open Collective for certain costs and damages.

  1. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Open Collective, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Open Collective Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Platform; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Platform. You agree to promptly notify Open Collective of any third-party Claims, cooperate with the Open Collective Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorney's' fees).  You also agree that the Open Collective Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Open Collective or the other Open Collective Parties.

  1. Disclaimers

  1. We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Platform. We do not control the collection of contributions or the disbursement of expense reimbursements through our Platform

  1. Your use of our Platform is at your sole risk. Our Platform is provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Open Collective does not represent or warrant that our Platform is accurate, complete, reliable, current or error-free. While Open Collective attempts to make your access to and use of our Platform safe, we cannot and do not represent or warrant that our Platform or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Platform.
  1. Limitation of Liability

  1. Open Collective and the other Open Collective Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Open Collective or the other Open Collective Parties have been advised of the possibility of such damages.

  1. The total liability of Open Collective and the other Open Collective Parties, for any claim arising out of or relating to these Terms or our Platform, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Platform during the 12 months immediately preceding the event giving rise to your claim.

  1. The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional, willful, malicious or reckless misconduct of Open Collective or the other Open Collective Parties.
  1. Release

To the fullest extent permitted by applicable law, you release Open Collective and the other Open Collective Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

  1. Dispute Resolution; Binding Arbitration for U.S. Residents

If you are a resident of the U.S. this Section 21 applies.  Please read the following section carefully because it requires residents of the United States to arbitrate certain disputes and claims with Open Collective and limits the manner in which they can seek relief from us.

  1. Except for small claims disputes in which you or Open Collective seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Open Collective seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Open Collective waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Platform resolved in court. Instead, all disputes arising out of or relating to these Terms or our Platform will be resolved through confidential binding arbitration held in San Francisco, California in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.  

  1. You and Open Collective agree that any dispute arising out of or related to these Terms or our Platform is personal to you and Open Collective and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. 

  1. You and Open Collective agree that these Terms affect interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law.   As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs.  For any arbitration initiated by Company, Company will pay all JAMS fees and costs.  You and Open Collective agree that the state or federal courts of the State of California and the United States sitting in San Francisco, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.  

  1. ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR PLATFORM MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND OPEN COLLECTIVE WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.  

  1. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by contacting us at support@opencollective.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
  1. Governing Law and Venue

These Terms and your access to and use of our Platform will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to Section 20 or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in San Francisco, California.

  1. Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Platform and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Platform. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Platform after we provide notice will confirm your acceptance of the changes. In any case, changes to these Terms will not be retroactive. If you do not agree to the amended Terms, you must stop accessing and using our Platform.

  1. Termination or Suspension

We reserve the right, without notice and in our sole discretion, to terminate or suspend your account or your right to access or use our Platform. A Collective can also be suspended or discontinued at any time by us, the Host or the Organizer. We are not responsible for any loss or harm related to your inability to access or use our Platform. You may stop using the Platform at any time. If we terminate or suspend your access to your account or our Platform, any licenses or rights we grant under these Terms will be immediately revoked.

  1. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

  1. Miscellaneous

These Terms constitute the entire agreement between you and relating to your access to and use of our Platform. The failure of to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.

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