1.1 Environmental Studies Institute Foundation [ESI] is a 501(c)(3) status organization. ESI operates an online donation service website (“Website”) providing various services (“Services”), including the collection and processing of donations received (the “Donations”) from individual donors (the “Donors”), managing the collection of gift aid (“Gift Aid”) on relevant Donations, and transferring Donations and Gift Aid to different non-profit organizations. ESI also administers grant programs independently from the Website. 

 

1.2 These legal terms and conditions, in addition to any other terms and conditions applicable govern the use of the Services (“Terms of Service”) by the non-profit organizations (together referred to as the “Nonprofits” and each individually as a “Nonprofit”) that are registered as Registered Users with ESI (as defined in clause 2.2 below). By registering and continuing to use or access the Website, you are agreeing as a Nonprofit to be bound by these Terms of Service with immediate effect. References in these Terms of Service to the “Nonprofit” or “you” (and similar) are references to you as a nonprofit or to any other eligible organization that has applied on your behalf to ESI and/or has been registered by ESI as a Registered User (as defined in clause 2.2).

 

2. REGISTRATION

 

2.1 Nonprofits are eligible to register as a Registered User and benefit from the Services provided by ESI either via its Website or other grant programs administered offline.

 

2.2 Once you have successfully completed the registration process (including but not limited to completion of the Due Diligence Process set out in clause 2.5), you will be deemed a “Registered User”, and your registration shall continue for an indefinite period, subject to the satisfaction of any subsequent due diligence in accordance with clause 9, termination rights in accordance with clause 15 and ESI's suspension and withdrawal rights in accordance with clause 16. For the avoidance of doubt, once the registration process is complete, the Registered User will be deemed as authorized by the Nonprofit unless there is evidence indicating fraud, as determined by ESI.

 

2.3 ESI receives Donations made through the Website and offline. Donations are made to ESI in their entirety and not to Nonprofits. When making a Donation, Donors may request how they wish funds to be allocated to projects listed on the Website. ESI acknowledge such requests of Donors and while they will endeavor to ensure that Donations reach the project chosen by the Donor, ESI’s trustee’s retain sole discretion regarding the onward distribution of Donations, together with relevant Gift Aid, to Nonprofits (so as to ensure appropriate handling and compliance).

 

2.4 By completing the registration process, you agree and acknowledge that:

 

        (a) ESI retains full control over the Donations (including, where applicable, Gift Aid) and the Donations will be allocated to ESI's general fund if (without limitation):

 

                (i) a project is retired or fully funded;

 

                (ii) either ESI receives a Donation without reference to a specific project or campaign;

 

                (iii) a Nonprofit does not have an active account due to not having completed the renewal Due Diligence Process required pursuant to clause 2.5 of these Terms of Service;

 

                (iv) a Nonprofit does not provide correct disbursement information within a reasonable timeframe after at least two reminder emails having been sent to the Nonprofit to update or provide such disbursement information;

 

                (v) a Nonprofit, through the Website, raises less than USD 100 net of any fees payable by the Nonprofit to ESI pursuant to clause 3 of these Terms of Service; or

 

                (vi) ESI conducts an investigation of the Nonprofit and on the basis of the results of such investigation, decides to remove the Nonprofit from the Website.

 

        (b) ESI reserves the right to refuse to accept any Donation;

 

        (c) ESI initiates fundraising activities and appeals itself and may choose to make grants to a Nonprofit with funds it has itself raised. In this case, a Nonprofit may be invited by ESI to submit project details to indicate such Nonprofit’s proposed use of such funds, but such projects might not be individually listed on the Website;

 

        (d) the Nonprofit and/or its projects may be included on ESI's associated websites including any partner or client websites;

 

        (e) some Donors may use filter options on the Website (e.g. by a specific theme, region, size of projects, etc) which may result in some of a Nonprofit’s projects not being seen on the Website by such Donors;

 

        (f) ESI cannot ensure receipt of any minimum amounts of Donations and some or all of a Nonprofit’s projects may not receive any Donations; and

 

        (g) nothing in these Terms of Service shall constitute or be deemed to constitute a joint venture, partnership or agency relationship between either ESI and the Nonprofit and the Nonprofit is not authorized to enter into any commitments for or on behalf of either ESI.

 

2.5 ESI reserves the right to decline any registration, terminate any grant, and refuse or suspend Nonprofits or individual projects from being listed on the Website for any reason without further explanation. At the time of registration and at a minimum every two years thereafter, ESI will undertake such checks as are necessary to verify or re-verify the identity and objectives of the Nonprofit (the “Due Diligence Process”).

 

2.6 Notwithstanding anything to the contrary in these Terms of Service, ESI reserves the right to introduce new services and update or withdraw any of the Services, in its sole discretion, and will not be liable to the Nonprofit for exercising this discretion.

 

2.7 If ESI decides to transfer Donations made by Donors, together with applicable Gift Aid, to the Nonprofit, you acknowledge that ESI will not be able to process such transfers until:

 

        (a) you have completed the registration process, have been accepted by ESI as a Registered User, have an account accessible via the Website (“ESI Online Account”) and if required by ESI, have a publicly visible account (“Project Page”); and

 

        (b) ESI's systems have been updated to show that the Nonprofit is a Registered User and the Website has been set up to process payment transactions for the Nonprofit as a Registered User.

 

3. FEES

 

3.1 ESI may, at its sole discretion, retain a fee of up to 15% from each Donation made to either ESI and from any relevant Gift Aid reclaimed, covering the Services provided by ESI (the “Donation Fee”).

 

3.2 ESI reserves the right to change the Donation Fee, as well as to introduce new fees and charges from time to time and will use commercially reasonable efforts to notify you, of any changes to the Donation Fee or the introduction of new fees, by email.

 

4. ESI OBLIGATIONS

 

4.1 ESI will operate the Website and provide the Services so that Donors can make online Donations on the Website.

 

4.2 Where ESI has received Donations and ESI has resolved to distribute such Donations (including, where applicable, Gift Aid) to a Nonprofit at its discretion (as set out in clause 2.4), it will hold the funds on the Nonprofit’s behalf until they are paid out in accordance with these Terms of Service. You will not earn or be paid interest on the sums that ESI holds and/or processes for you.

 

4.3 ESI will use commercially reasonable efforts to collect, protect and secure the personal details of Donors in accordance with applicable data protection laws.

 

4.4 ESI works to ensure the privacy of its Donors. For this reason, the physical addresses of donors are not available. ESI will, however, display the names and email addresses of Donors that have not elected to remain anonymous. ESI will not provide the names and email addresses of Donors that have opted for anonymity during the check-out process. In accordance with the CAN-SPAM Act of the United States, ESI does not allow the usage of Donor email addresses off of the ESI platform. A Nonprofit, however, may ask donors to opt-in to its organization’s mailing list by linking to a subscription form using ESI's “thank you note” tool and “project report” tool. The Nonprofit and its members acknowledge and commit to securing donor privacy and agree that no Donor information will be redistributed to a third party and no Donor information will automatically be added to the Nonprofit’s mailing lists of any kind.

 

5. GIFT AID

 

5.1 Donors are responsible at all times for making an accurate Gift Aid declaration when they make a Donation. If a Donor does not make an accurate Gift Aid declaration or if HMRC rejects a Gift Aid declaration made by a Donor, no payments to the Nonprofit will be made in respect of the relevant Gift Aid claims.

 

5.2 If HMRC requires ESI to refund a previously paid Gift Aid claim, where payment in respect of such Gift Aid has been made to a Nonprofit, ESI will contact the relevant Nonprofit and (following reasonable notice) may either:

 

        (a) request repayment for the Gift Aid refund amount from the Nonprofit and the Nonprofit shall pay an amount equal to such Gift Aid within 10 days of receipt of such request; and/or

 

        (b) deduct the Gift Aid refund amount from any future payments made to the Nonprofit.

 

5.3 ESI will reclaim .25USD in Gift Aid for every 1USD donated (though this is subject to change as per HMRC's guidelines). Gift Aid claimed by ESI on Donations is typically received from HMRC within 4-6 weeks from the date of donation.

 

5.4 ESI is not responsible for any delayed or incorrect payments made as a result of any acts or omissions of any financial institution or HMRC.

 

5.5 To the extent permitted by applicable law, the provisions of this clause 5 will be interpreted in accordance with the relevant HMRC guidelines and any other applicable law or regulation in the United States relating to Gift Aid.

 

6. NONPROFIT’S OBLIGATIONS

 

6.1 The Nonprofit shall ensure that:

 

        (a) all Donations (including, where applicable, Gift Aid) received will be used only for the project specified and in accordance with the project description posted by the Nonprofit on the Website or as set out in the written proposal submitted to ESI, and not for any other purpose. ESI may also at its sole discretion and from time to time, provide the Nonprofit with funds for general use, with such funding being clearly indicated in the disbursement report issued by ESI

 

        (b) all Donations (including, where applicable, Gift Aid) received must be used within two years from the date of receipt of such Donations;

 

        (c) it informs ESI if it receives Donations (including, where applicable, Gift Aid) that it should reasonably know it is not entitled to receive;

 

        (d) any Donations (including, where applicable, Gift Aid) paid to it through the Website or offline are used by the Nonprofit in accordance with any stated purpose or specific fundraising appeal and it shall be the sole responsibility of the Nonprofit to ensure that Donations received by it are used for the stated purpose or appeal and ESI will not be responsible for the use or non-use of any such Donations;

 

        (e) the content it posts for display within the Website, including any links to other websites and the content of linked websites, will not be false, misleading, inaccurate or deceptive or violate any law or regulation or be defamatory, obscene or breach any intellectual property rights of a third party or breach any right of, or duty owed to, a third party;

 

        (f) all of the details provided in connection with its ESI Online Account and all of the content generated on the Website by or on behalf of the Nonprofit is kept accurate and up-to-date;

 

        (g) it notifies ESI if a project receives its total budget, including Donations (including, where applicable, Gift Aid) received from ESI and any other sources unrelated to ESI;

 

        (h) it complies with all relevant data protection legislation and guidelines; and

 

        (i) it maintains the confidentiality of the Registered User’s Website login and password; and

 

        (j) it will only post projects and appeals that adhere to the Code of Fundraising Practice, which can be reviewed at https://www.fundraisingregulator.org

 

6.2 The Nonprofit will be responsible for full use of the Website under its Registered User’s login and password whether or not such use is authorized by the Nonprofit. Each Registered User must notify ESI immediately of any unauthorized use of such Registered User’s login or password.

 

6.3 Any actual or attempted use of the Website by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. ESI reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of the Website (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Website. ESI may share any User Information it obtains from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. ESI will also disclose User Information as required by any court order and/or subpoena.

 

7. ADDITIONAL OBLIGATIONS ON NONPROFITS RECEIVING FUNDING FROM TLP Whit

 

7.1 A Nonprofit receiving Donations (including, where applicable, Gift Aid) from ESI warrants, undertakes and agrees that:

 

        (a) its legal and registration status as disclosed in any application material provided to ESI remains in full force and effect and has not been modified or rescinded;

 

        (b) it shall promptly notify ESI if such legal or registration status is modified or rescinded or if any event occurs which does or may cause adverse publicity to the Nonprofit;

 

        (c) any Donations received will be used exclusively for charitable purposes as defined under the laws of England and Wales and in accordance with any other requirements of ESI. If a Nonprofit is unable to use any Donation exclusively for such charitable purposes and in accordance with any specific requirements of ESI, they must immediately notify ESI and repay such Donation and Gift Aid to ESI; and

 

        (d) any Donations received will not be used for any of the following purposes or activities:

 

                (i) to make any payments which contravene the Bribery Act 2010 or which would contravene the Bribery Act 2010 if such payment had been made by ESI or by any entity established in England or Wales;

 

                (ii) to undertake political campaigning or political activity, except as permitted by the law of United States;

 

                (iii) to make any payment to the officers, directors, or trustees of the Nonprofit’s governing body or persons or entities related (either by business or family relationships) to such officers, directors, or trustees without the prior written agreement of ESI; and

 

                (iv) to take any other action which is inconsistent with the Nonprofit’s governing documents, any project description posted on the Website, or any nonprofit, tax or other laws of England and Wales.

 

1 Note to Donor: Funds received through ESI can be identified in the disbursement reports as donations originally made by the Donors.

 

7.2 To the extent permitted by applicable law, the provisions of this clause 5 will be interpreted in accordance with any applicable laws and regulations in the United States.

 

8. ADDITIONAL OBLIGATIONS ON NONPROFITS RECEIVING FUNDING FROM ESI

 

8.1 A Nonprofit receiving Donations from ESI warrants, undertakes and agrees that:

 

        (a) it will notify ESI immediately of any change in:

 

                (i) its U.S. tax-exempt or public charity status, if applicable;

 

                (ii) its executive staff or key staff responsible for achieving the projects specified; or

 

                (iii) its governing body;

 

        (b) any Donations received will be used exclusively for exempt purposes as set forth in section 501(c)(3) of the U.S. Code; and

 

        (c) any Donations received will not be used for any of the following purposes or activities:

 

                (i) to induce or encourage violations of law or public policy (including providing support to any person or entity that engages in terrorist activities), to cause any private inurement or improper private benefit to occur, or to take any other action inconsistent with section 501(c)(3) of the U.S. Code;

 

                (ii) to make any payment to the officers, directors, or trustees of the Nonprofit’s governing body or persons or entities related (either by business or family relationships) to such officers, directors, or trustees without the prior written agreement of ESI;

 

                (iii) to pay for any central or overhead costs which are not directly related to the project for which the grant is made;

 

                (iv) to attempt to influence legislation within the meaning of sections 501(h) and 4911 of the U.S. Code;

 

                (v) to influence the outcome of any specific election or to participate or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office, within the meaning of section 501(c)(3) of the U.S. Code;

 

                (vi) to undertake any activity for any purpose other than the charitable purposes specified in section 170(c)(2)(B) of the U.S. Code; or

 

                (vii) to proselytize a religious belief.

 

9. DUE DILIGENCE AND REPORTING REQUIREMENTS

 

9.1 To remain active on the Website and continue to receive Donations (including, where applicable, Gift Aid) paid to it through the Website from ESI, Nonprofits must comply with the following requirements:

 

        (a) Reporting Requirements: The Nonprofit must submit quarterly project reports to ESI which provide an update to both the Nonprofit’s supporters and ESI's staff on the project’s progress (“Quarterly Project Reports''). The first Quarterly Project Report should be provided within 90 days of the Nonprofit posting a project on the Website, regardless of whether it has received any funding. The Quarterly Project Reports will be made visible on the Website and sent to relevant Donors and email subscribers. The Nonprofit must also provide a final written report to ESI upon its project being marked as ‘fully funded’ on the Website.

 

        (b) Due Diligence Requirements: The Due Diligence Process conducted by ESI at the time of a Nonprofit’s registration shall, unless otherwise specified by ESI, expire two years after the completion of such due diligence. Upon such expiry and at a minimum every two years thereafter, ESI will undertake any further checks it deems necessary to re-verify the identity and objectives of such Nonprofit. If a Nonprofit fails to provide ESI with the additional documentation required for ESI to complete such follow-up due diligence, ESI will deactivate all projects relating to the Nonprofit that are listed on the Website and the Nonprofit will not be allowed to participate in any ESI affiliate programs. ESI reserves the right to require any organization to submit documentation to ESI at any time to verify use of funds, confirm programmatic activity, or for other Due Diligence purposes. If the Nonprofit has pending Donations which need to be disbursed, ESI will within 30 days of the expiration of the previous due diligence, make its final payment to such Nonprofit.

 

        (c) Miscellaneous Requests: The Nonprofit must comply with any document requests made by ESI at any time to verify use of funds, confirm programmatic activity or for other due diligence purposes; and

 

        (d) Records Retention: The Nonprofit must maintain records of all receipts and expenditures of received grants and donations for a period of at least seven years after such grants and donations have been expended.

 

9.2 ESI may share or publish any reports and supporting documentation received by the Nonprofit in accordance with these Terms of Service in any manner that it deems fit.

 

10. OWNERSHIP AND LICENSING OF INTELLECTUAL PROPERTY RIGHTS

 

10.1 Except for the rights expressly granted under these Terms of Service:

 

        (a) ESI retains all right, title and interest in and to the Website and the Services, including, without limitation, all intellectual property rights therein; and

 

        (b) subject to clause 10.2, ESI retains all rights, title and interest in and to any information, materials or other content that the Nonprofit provides in connection with its registration and these Terms of Service, including all intellectual property rights therein.

 

10.2 The Nonprofit hereby grants to ESI (and its sublicensees) a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works of, distribute, transmit, and display its trademarks and graphic media in connection with the Services and ESI's operations and other connected commercial or charitable activities.

 

10.3 The Nonprofit shall indemnify ESI in respect of all losses, damages and expenses (including reasonable legal fees) suffered by ESI as a result of its use or possession of the Nonprofit’s trademarks or any other information, materials or content submitted to it by the Nonprofit.

 

11. PAYMENTS TO THE NONPROFIT

 

11.1 Receipt of Donations: As set out in clauses 2.3 and 2.4 above, Donations made to projects on the Website are made to ESI and re-granted (together with applicable Gift Aid) at ESI's absolute discretion to Nonprofits.

 

11.2 Processing of Donations: Donations (including, where applicable, Gift Aid) that ESI decide to grant to a Nonprofit will be processed and held by ESI (as applicable) on the Nonprofit’s behalf and ESI may refuse to process and hold Donations if it is not reasonably satisfied that:

 

        (a) the transaction is legal and not related to fraudulent activities of any kind;

 

        (b) the Donations have been properly authorized; or

 

        (c) the information on which ESI (as applicable) is basing the transfer is correct.

 

11.3 Payment Schedule for Donations paid through the Website: ESI will transfer cleared Donations that it has received and resolved to pay to a Nonprofit, which were made during the previous month including other pending funds and/or bonuses and any Gift Aid (where applicable) received from HMRC during the previous month (the “Funds”), to the Nonprofit on or around the 25th of the month. By way of example, Funds raised in June will be sent to an organization on or near the 25th of July. In relation to Funds being remitted outside of the United States, ESI will only remit the Funds if they exceed USD 250 in value (the “Transfer Minimum”). The Overseas Transfer Minimum is based on limitations set by ESI's disbursement partners and helps reduce the overall cost of wire fees, the negative effects of chargebacks and donation reversals

 

11.4 Bank Details: The bank account information you provide ESI as part of the registration process will be used for executing all future transfers that ESI makes to you, unless you inform ESI otherwise or a transfer is rejected by the recipient bank. You are responsible for ensuring that ESI is kept informed of the correct and up-to-date details. Any changes to the details must be submitted through the Registered User’s online ESI Online Account by an authorized representative of the Nonprofit and within a sufficient period of time before a transfer is due to be made. If you provide us with (or let us continue to use) incorrect or out-of-date information, we will not be responsible if the payment is not made, it is delayed or it is made incorrectly.

 

11.5 Refunds: If after a Donation has been transferred by either ESI to your account, such Donation is thereafter rejected or reversed for any or no reason, including payments made in error, credit card chargebacks, refund requests, suspected or actual fraud, in whole or in part, you will be liable to refund such rejected Donation amount in full to ESI (as applicable). You hereby authorize ESI (as applicable) to deduct any such amount and any directly related out-of-pocket expenses and reasonable administrative costs incurred by it in this context from your ESI Online Account. If this is not possible, you are liable for reimbursing ESI (as applicable), and such amount shall be treated as a debt.

 

12. NONPROFIT WARRANTIES

 

12.1 The Nonprofit represents, warrants and covenants that:

 

        (a) it shall fully comply and will at all times continue to fully comply with all applicable laws, statutes and regulations, including, without limitation, all privacy laws and anti-spam legislation;

 

        (b) it has full power and authority to enter into these Terms of Service and the execution and performance of its obligations under these Terms of Service does not conflict with:

 

                (i) any laws, rules, regulations or governmental guidelines to which the Nonprofit is subject; or

 

                (ii) any other agreements to which the Nonprofit is a party or to which the Nonprofit is otherwise bound;

 

        (c) the Nonprofit owns or has the authority to grant the rights and licenses granted to ESI by the Nonprofit under these Terms of Service;

 

        (d) any content contained in the Project Page does not violate the rights of any third party including, without limitation, any patents, trademarks, copyrights, trade secrets, trade names and other intellectual property rights whether registered or not;

 

        (e) any content contained in the Project Page complies with all applicable laws, statutes and regulations including, without limitation, all slander, defamation, libel, obscenity and privacy laws;

 

        (f) it is not prohibited by any applicable local laws or regulations from receiving Donations (including, where applicable, a payment equivalent to the amount of any Gift Aid reclaimed) from ESI for the project listed on the Website;

 

        (g) it has obtained all necessary registrations, consents, licenses or similar regulatory permissions to receive the Donations;

 

        (h) it does not have any employees, officers, or board members, or contributes funds to organizations that the Nonprofit knows or suspects to support terrorism or that are found on any terrorist-related list promulgated by the UK Home Office, the U.S. Government, the United Nations, or the European Union, including the U.S. Department of Treasury’s Office of Foreign Assets Control Specially Designated Nationals List, the U.S. Department of Justice’s Terrorist Exclusion List, the list annexed to Executive Order 13224, and the Terrorism (United Nations Measures) Orders 2001 and 2006 (S.I. 3365/2657);

 

        (i) it has and shall keep in place adequate procedures for dealing with any conflicts of interest;

 

        (j) it has and shall keep in place systems to deal with the prevention of fraud, bribery and/or administrative malfunction; and

 

        (k) all financial and other information concerning the Nonprofit which has been disclosed to ESI is to the best of its knowledge and belief, true and accurate.

 

13. WARRANTY DISCLAIMER, INDEMNITY AND LIMITATION OF LIABILITY

 

13.1 ESI, as operator of the Services and Website, acts as an intermediary between the Nonprofits and the Donors. ESI does not take responsibility for any Donor generated content or information displayed on the Website. Except as set out in these Terms of Service, ESI shall not be liable to the Nonprofit as a result of its role as the operator of the Website or as an intermediary between the Nonprofit and Donors.

 

13.2 Nothing in these Terms of Service shall limit or exclude a party’s liability:

 

        (a) for fraud, including fraudulent misrepresentation, perpetrated by that party;

 

        (b) for death or personal injury caused by the negligence of that party; or

 

        (c) for any other liability that cannot be limited or excluded under applicable law.

 

13.3 Subject to clause 13.1, the Nonprofit shall be fully liable (and ESI their affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors shall to no extent be responsible or liable), financially and otherwise, for all liabilities, expenditure, claims, demands, actions, costs, expenses, losses and damages arising out of or in relation to the use of any Funds.

 

13.4 Subject to clause 13.2, the Nonprofit acknowledges and agrees that in no event will ESI their affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors be liable, whether based on an action or claim in contract, tort, negligence, breach of statutory duty or otherwise arising out of or in relation to these Terms of Service for loss of profits, non-payment of Funds, loss of data or information, business interruption or other pecuniary loss or for any special, indirect, incidental, or consequential damages, even if ESI their affiliates, directors, officers, agents, employees, licensors, subcontractors or suppliers have been advised of the possibility of such damages.

 

13.5 Subject to clause 13.1, if clause 13.3 or clause 13.4 are held to be unenforceable or inapplicable for any reason by a court of law, then the total liability of ESI their affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors to the Nonprofit, whether based on an action or claim in contract, negligence or breach of statutory duty or otherwise, arising out of or in relation to these Terms of Service shall be limited to the lower of the Donation Fee paid by the Nonprofit in the twelve (12) months prior to the event giving rise to the claim or USD 100.

 

13.6 Subject to clause 13.1, the Services and the Website are provided to the Nonprofit on an “as is” basis without representations, warranties or conditions of any kind. As between the parties, the Nonprofit assumes responsibility for determining the suitability of the Services or the Website, for the use of the Services or Website and for the results obtained. ESI disclaims all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility or that the Services or the Website are secure, or error free or will operate without interruption or will be provided in a timely or proper manner or at all.

 

14. NONPROFIT INDEMNITY

 

14.1 The Nonprofit will indemnify and hold ESI their affiliates, directors, officers, agents, employees, suppliers, subcontractors and licensors harmless from and against any losses, damages and expenses (including legal fees) (“claims”) arising out of or relating to:

 

        (a) any claims or demands made by a Donor or any third party due to or arising out of the Nonprofit’s use of the Services or the Website, unless such claim is directly and solely caused by the gross negligence or the intentional or wilful misconduct of ESI their affiliates, directors, officers, agents, employees, subcontractors or licensors;

 

        (b) the Nonprofit’s violation of any of the provisions of these Terms of Service, including, without limitation, any of the Nonprofit’s representations and warranties;

 

        (c) the Nonprofit’s violation of any applicable laws, including, without limitation, data protection or anti-spam laws; or

 

        (d) the Project Page, including, without limitation, that the content or trademarks infringe the intellectual property rights of any third party or that the content of the Project Page is slanderous, defamatory, obscene or violates any other rights (including privacy rights) of any third party.

 

15. TERMINATION

 

15.1 The terms of this Agreement will begin on the date your registration is notified to you as being effective (“Effective Date”) and will continue until your registration is terminated in accordance with these Terms of Service (the “Term”).

 

15.2 Termination by: ESI may terminate your registration, with or without cause and without paying any termination fees, charges or other amounts, at any time immediately upon written notice to the Nonprofit. ESI will not refund any registration, subscription or similar fees applicable to the period after the termination date.

 

15.3 Termination by the Nonprofit: You may terminate your registration at any time by providing notice to ESI that you wish to deactivate your registration

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15.4 Post-Termination Consequences: The following shall apply post-termination:

 

        (a) unless otherwise requested in writing by the Nonprofit, or at the discretion of ESI, ESI may maintain the ESI Online Account and the Project Page on the Website following the termination of the Nonprofit’s registration, including for ESI's audit or other record retention purposes;

 

        (b) from the termination date, the donation function on the Website will be disabled and Donors will no longer be allowed to donate to the Nonprofit;

 

        (c) the Nonprofit must remove all links, references and referrals to the Website that are used by it to solicit Donations on the Website; and

 

        (d) ESI will, subject to these Terms of Service, pass any Donations and Gift Aid (if applicable) received up to the point of termination, to the Nonprofit.

 

16. SUSPENSION AND WITHDRAWAL

 

16.1 ESI (as applicable) may, in its sole discretion and in accordance with ESI's investigation policy and framework, withhold or suspend Fund payments and where appropriate require the return of some or all of the Funds already transferred to the Nonprofit, and suspend any of the Nonprofit’s project listings on the Website if:

 

        (a) any Funds are used in a manner that does not comply with these Terms of Service;

 

        (b) the Nonprofit obtains duplicate funding from a third party for a project listed on the Website;

 

        (c) you take any actions which, in the reasonable opinion of ESI (as applicable), bring, or are likely to bring, ESI's name or reputation into disrepute or to damage its reputation in any way;

 

        (d) the Nonprofit fails to provide reports and other information required by ESI in a timely manner or you provide ESI with any materially misleading or inaccurate information;

 

        (e) the Nonprofit ceases to operate for any reason, or it passes a resolution (or any court of competent jurisdiction makes an order) that it be wound up or dissolved (other than for the purpose of a bona fide and solvent reconstruction or amalgamation);

 

        (f) the Nonprofit becomes insolvent, or it is declared bankrupt, or it is placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or it enters into any arrangement or composition for the benefit of its creditors, or it is unable to pay its debts as they fall due; or

 

        (g) you fail to comply with any of these Terms of Service and fail to rectify any such failure within 30 days of receiving written notice detailing the failure.

 

16.2 We reserve the right to close (or retire) any project listed on the Website in our sole discretion if we have not received any donations in respect of a project for a period of one year. You may also close projects on the Website at any time.

 

16.3 Once ESI has received sufficient donations for a project’s funding goal to be met, or you inform us that the funding goal has been met from other sources, the project will be marked as “funded” on the Website and will no longer be eligible for Donors to request that funds be allocated to them.

 

17. CONFIDENTIAL INFORMATION

 

17.1 For the purposes of these Terms of Service, “Confidential Information” means, with respect to either party, the non-public, confidential, secret or proprietary material and information of such party that has been or may be, directly or indirectly, disclosed to, or come into the possession or knowledge of, the other party, whether in verbal, written, graphic, electronic or other form, in connection with or as a result of entering into these Terms of Service.

 

17.2 Each party will maintain the confidentiality of all Confidential Information of the other party and will not release, disclose, use, make available or copy any such Confidential Information without the prior written consent of the disclosing party except as necessary to carry out its obligations under these Terms of Service or as expressly permitted under these Terms of Service. Each party may disclose the other party’s Confidential Information to its employees, agents or subcontractors on a need-to-know basis only and subject to entering into a non-disclosure agreement. Each party will not use in any way, for its own account or for the account of any third party, except as expressly permitted by, or required to achieve the purposes of these Terms of Service, or disclose to any third party (except to that party’s legal advisor, accountants or other advisors as reasonably necessary), any of the other party’s Confidential Information, and will take reasonable precautions to protect the confidentiality of such Confidential Information, at least as stringent as it takes to protect its own Confidential Information. Excluded from this obligation of confidentiality is Confidential Information which:

 

        (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;

 

        (b) becomes known to the receiving party directly or indirectly from a third party source not having an obligation of confidentiality to the disclosing party;

 

        (c) becomes publicly known or otherwise ceases to be secret, proprietary or confidential, except through a breach of these Terms of Service by the receiving party;

 

        (d) is independently developed by the receiving party; or

 

        (e) is required to be disclosed by a government authority or by law, provided that the receiving party gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.

 

18. GOVERNING LAW AND DISPUTE RESOLUTION

 

18.1 If a dispute arises between the parties with respect to these Terms of Service, each party shall escalate the dispute to a senior management representative within its organization and no party may commence formal legal proceedings in relation to such dispute until such senior management representatives have spent at least twenty business days trying to informally resolve such dispute.

 

18.2 These Terms of Service and any non-contractual obligations arising in connection with them are governed by the laws of Delaware and the parties submit to the non-exclusive jurisdiction of the Delaware courts.

 

19. THIRD PARTY RIGHTS

 

19.1 A person who is not a party to these Terms of Service has no right to enforce any term of these Terms of Service.
 

20. FURTHER ASSURANCES

 

20.1 The parties will do and execute or arrange for the doing and executing of each necessary act, document and thing reasonably within its power to implement and give effect to these Terms of Service to its full extent, including, without limitation, assisting each other in complying with applicable law.

 

21. ASSIGNMENT

 

21.1 These Terms of Service will be binding upon and ensure to the benefit of the parties and their respective successors and permitted assignments. The Nonprofit will not assign or transfer these Terms of Service or any of its rights or obligations under these Terms of Service, whether directly or indirectly, without first obtaining the prior written consent of ESI, such consent not to be unreasonably withheld.

 

22. ENTIRE AGREEMENT

 

These Terms of Service and the documents referred to or incorporated herein by reference contain the entire agreement between ESI and the Nonprofit with respect to the subject matter and supersede all prior agreements, negotiations and representations, written or oral, relating to its subject matter. Except as provided in these Terms of Service and the documents referred to or incorporated into these Terms of Service by reference, there are no conditions, representations, warranties, undertakings or agreements between the parties whether direct, indirect, collateral, express or implied.

 

23. AMENDMENT

 

These Terms of Service cannot be modified, varied, amended or supplemented in any way by the Nonprofit. ESI reserves the right to modify, vary, amend or supplement these Terms of Service at any time and from time to time. ESI will post the current version of these Terms of Service on the Website and each such change will be effective upon posting on the Website or upon the date designated by ESI as the “effective date” (if any). Your continued use of the Services following any such change constitutes your agreement to be bound by and its acceptance of these Terms of Service as so modified.

 

24. SEVERABILITY

 

If any provision of these Terms of Service is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be severed from these Terms of Service and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the parties.

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25. FORCE MAJEURE

 

Neither party will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such party whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any of our subcontractors or any third party providers of goods or services to us, labor disruptions, blackouts, embargoes).

 

26. NO WAIVER

 

Any waiver by ESI of any of the provisions of these Terms of Service will not constitute a waiver of any other provision (whether similar or not), nor will any such waiver constitute a continuing waiver of that particular provision, unless expressly provided by ESI in writing.

 

27. COMMUNICATIONS

 

27.1 These Terms of Service are issued and concluded in English. Communications between us will be in English and will be conducted by letter, phone or email using the most recent details that you have provided to us, or by a message posted to your ESI Online Account.

 

27.2 If you wish to contact ESI please write to the below address:

ESI@EnvironmentalStudiesInstitute.org