1.1 From time to time we may change the terms and conditions in this Agreement and in policies, guidelines or instructions governing the Site or Services. Any changes will be effective upon posting on the Site and we will use reasonable measures to ensure that changes are prominently posted in a manner designed to afford notice to users of the Site.
1.2 You are responsible to periodically check for the most current terms that apply to your transactions on the Site. Your continued use of this Site and the Services following the posting of any changes will constitute your acceptance of such changes.
2. Additional Provisions.
2.1 Some areas of the Site or content provided on or through the Site may have additional rules, guidelines, license agreements, user agreements or other terms and conditions that apply to your access or use of that area of the Site or content (including terms and conditions applicable to a corporation or other organization and its users). If there is a conflict or inconsistency between these Terms of Service and the rules, guidelines, license agreement, user agreement or other terms and conditions for a specific area of the Site or for specific content, the latter shall have precedence with respect to your access and use of that area of the Site or content.
2.2 Your use of software made available on or through the Site as a service offering is subject to all agreements such as a license agreement or user agreement that accompanies or is included with the software, ordering documents, exhibits, and other terms and conditions that apply. In the event that software is provided on or through the Site and is not licensed for your use through license terms specific to the software, you may use the software subject to the following: (a) the software may be used solely for your personal, informational, noncommercial purposes; (b) the software may not be modified or altered in any way; and (c) the software may not be redistributed.
2.3 You may download, store, display on your computer, view, listen to, play and print materials that we publish or broadcast on the Site or make available for download subject to the following: (a) the materials may be used solely for your personal, informational, noncommercial purposes; (b) the materials may not be modified or altered in any way; and (c) the materials may not be redistributed.
3.1 Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law. If you are under the age of 18 you are prohibited from using the service of this Site.
3.2 You also confirm that if you are a business, you are duly organized, validly existing and in good standing under the laws of the jurisdiction in which your business is registered and that you have the authority to enter into this Agreement and perform your obligations hereunder.
4. Silent Fundraising's Reservation of Rights.
4.1 Silent Fundraising retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services. We may re-design and alter the Site and the Services from time to time in order to improve the quality of your experience at the Site. You acknowledge that Silent Fundraising may establish limits concerning use of the Site, including but not limited too the maximum number of days that content will be retained by the Site, the maximum number and size of postings, email messages, or other content that may be transmitted or stored by the Site, and the frequency with which you may access the Site. You agree that Silent Fundraising has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Site. You agree that we are not liable for any loss or damages arising from the provision (or non- provision) of any part of the Site or the Services, including loss of profit or consequential loss or damage.
4.2 You agree that Silent Fundraising, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email address, or otherwise terminate or restrict your access to or use of the Site, immediately and without notice, and remove and discard any content within the Site, for any reason, including, without limitation, if we believe that you have acted inconsistently with the letter or spirit of this Agreement. Silent Fundraising will not be liable to you or any third-party for any termination or restriction of your access to the Site or the Services.
5. Our Function.
5.1 The Site and the Services comprise a hosted website auction platform that connects non-profit organizations with individuals and businesses interested in supporting their fundraising efforts through online auctions. Silent Fundraising is not a charitable organization and is not a party to any transaction between sponsoring organizations, bidders and donors that occur as a result of the use of our Site and the Services we provide. We do not transfer legal ownership of auctioned or purchased items from the donor to the sponsoring organization or from the sponsoring organization to the successful bidder and nothing in this agreement shall modify the governing provisions of Ca. Com. Code § 2401(2) and Uniform Com. Code § 2-401(2) under which legal ownership of an item is transferred upon physical delivery of the product to the winning bidder by the sponsoring organization or to the sponsoring organization by the donor.
We do not warrant or guarantee the qualified tax status of any sponsoring organization using our Site or Services under US Internal Revenue Service regulations or the tax laws of any other jurisdiction, that any items offered for auction or sale by a sponsoring organization through the Site are of any specific nature or quality, will be as represented by the sponsoring organization, will be available, will meet a bidder's requirements, or that any transaction will be completed. We do not warrant or guarantee in any way the tax treatment of transactions conducted using our Site or Services under US Internal Revenue Service regulations or the tax laws of any other jurisdiction, either for a sponsoring organization or any bidder or donor. We are not a broker or intermediary of any type. Online auctions carried out using the platform services we provide are exclusively between an interested bidder and the sponsoring organization offering items for auction or sale. We are not responsible for, nor obliged to receive or process, complaints against sponsoring organizations, bidders or donors using the Services nor to mediate or resolve disputes between them unless, and only to the extent that, a complaint concerns the performance of our legal or contractual obligations under this Agreement.
5.2 Interactions between bidders, donors and sponsoring organizations facilitated on or through the Site, including payment and delivery of goods or services, tax treatment of the transaction, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the bidder, donor and the sponsoring organization. Silent Fundraising is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between bidder, donor and sponsoring organizations who enter into a transaction facilitated by the Site, Silent Fundraising is under no obligation to become involved. In the event of a dispute concerning a transaction entered into between a bidder, a donor and a sponsoring organization facilitated by the Site, you hereby release Silent Fundraising, its officers, employees, agents and successors from any claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or our Services.
5.3 Each of Silent Fundraising and our users, whether bidders or sponsoring organizations, may terminate their relationship with each other at any time by notice effective immediately.
5.3.1 With respect to sponsoring organizations, upon termination of this Agreement (i) any auctions hosted through our Service but not yet commenced at the time of termination are void and no longer have any effect, and (ii) any hosted auctions in progress at the time of termination shall be terminated without any obligation or liability to Silent Fundraising. We will delete any such hosted auctions and proposals immediately upon notice of termination. Such actions shall not give rise to any liability on our part other than the return of any fees paid in connection with an Auction that is termination by us, provided however, that we shall be under no obligation to refund fees paid by a sponsoring organization if we have terminated this Agreement as a result of a failure to comply with the provisions of this Agreement. If a sponsoring organization terminates this Agreement for any reason any fees paid shall be forfeit and are not subject to return.
5.3.2 With respect to bidders, upon termination of this Agreement the bidder account will be closed and a bidder's ability to participate in any auctions hosted through our Service shall terminate without obligation or liability to Silent Fundraising.
6. Your Account.
6.1 To access the Services offered by Silent Fundraising, whether as a bidder or a sponsoring organization, you must create an account on our Site associated with a valid e-mail address.
6.2 Accounts may not be sold or transferred. Unless expressly authorized by Silent Fundraising you may only create one account per email address.
6.3 To create an account and register, you must provide your name, address, phone number and e-mail address, select a password, and provide other information required by the application form. Valid credit card information will be needed only when you conduct a fee-based transaction on our Site.
6.4 You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents).
6.5 Silent Fundraising and its affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized party may be using your account or if any of your account information is lost or stolen.
7. Password Security.
7.1 Your password may be used only to access the Site, use the Services, electronically sign your transactions, and review your completed transactions.
7.2 You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site.
7.3 If your password is compromised, you must change your password.
8. The Silent Fundraising Payment Service.
8.1 In order to engage in a fee-based transaction on the Site a sponsoring organization must use the Silent Fundraising Payment Service (the "Payment Service"). Payment transactions may be conducted with any major credit or debit card accepted by Silent Fundraising. The Payment Service helps facilitate a sponsoring organization's transactions with Silent Fundraising.
8.2 Use of the Payment Service is available to sponsoring organizations who meet the terms of eligibility and whose applications are acceptable to Silent Fundraising.
8.3 The Payment Service is generally available seven (7) days per week, twenty- four (24) hours per day, except for scheduled downtime due to system maintenance.
9. Compliance with Laws.
9.1 The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations.
9.2 You may not register under a false name or use an invalid or unauthorized credit card. You represent and warrant that the information you provide in materials associated with the creation of your account is accurate and complete. You may not impersonate any participant or use another participant's password (s).
9.3 We may, from time to time, allow users to post information and content to our Site. You agree that we are free to use any comments, information, ideas, concepts and methods in any post or submission that you may make to our Site (a "Submission"), without compensation or acknowledgement.
9.4 BY POSTING OR PROVIDING ANY SUBMISSION, YOU REPRESENT AND WARRANT THAT PUBLIC POSTING AND USE OF YOUR SUBMISSION BY US WILL NOT INFRINGE UPON OR VIOLATE THE RIGHTS OF ANY THIRD PARTY.
9.5 You understand that all postings, messages, text, files, images, photos, video, sounds, or other materials posted on, transmitted through, or linked from the Site are the sole responsibility of the person from whom such content originated. You are entirely responsible for all content that you post, email or otherwise make available via the Site. You understand that Silent Fundraising does not control, and is not responsible for, content made available through the Site.
9.6 Without intending to limit the foregoing disclaimer, you may not post unlawful, harmful, obscene or offensive content or content that infringes on trademarks or copyrights or content that is defamatory about Silent Fundraising or its users. You will not use our Service or any aspect of it to:
(i) upload, post, email, or otherwise transmit any Submission that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(ii) harm us or third parties in any way;
(iii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(iv) upload, post, email, or otherwise transmit any Submission that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(v) upload, post, email or otherwise transmit any Submission that infringes any patent, trademark, trade secret, copyright, or other right of any party;
(vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other forms of solicitation;
(vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(viii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation;
(x) "stalk" or otherwise harass another; or
(xi) collect or store personal data about other users.
10. Your Grant.
10.1 By entering into this Agreement you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to Silent Fundraising and its affiliates without attribution, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in this Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to Silent Fundraising and its affiliates, and that the use of such materials by Silent Fundraising and its affiliates will not infringe upon or violate the rights of any third party.
11. Copyright and Trademark.
11.1 All content included on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software, is the property of Silent Fundraising or its content suppliers and is protected by international copyright laws. The compilation of all content on this Site is the exclusive property of Silent Fundraising and is protected by international copyright laws. All software used on this site is the property of Silent Fundraising or its software suppliers and is protected by international copyright laws. All of the trademarks, service marks, brand and trade names appearing on the Site are each the proprietary intellectual property of Silent Fundraising or the owners of such marks or names and you may not use, modify, remove or otherwise infringe any of such proprietary intellectual property. If you are a copyright owner and believe that any content on the Site infringes your copyright you may inform us by submitting a notice by email to or in writing addressed to:
Sperka International LLC
11.2 Your notice should include (i) a specific description of the alleged infringement and the copyrighted work that you believe has been violated; (ii) the exact location of the infringing material on the Site; (iii) your contact information; and (iv) a statement by a person authorized to take action on behalf of the owner of the copyright certifying that the information provided is true and correct.
12.1 Silent Fundraising may occasionally monitor activity and content associated with this Site. We may investigate any reported violation of our policies or complaints and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site.
12.2 Silent Fundraising reserves the right to remove, screen, or edit any content that violates these provisions or is otherwise deemed objectionable.
13. Links to Other Websites.
13.1 The Site and content available through the Site may contain links to other websites, which are independent of Silent Fundraising. Silent Fundraising makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website.
13.2 You understand that Silent Fundraising does not in any way endorse or approve any sponsoring organization listed on or using the Site and our Services. Similarly, we make no representations concerning any bidders, or donors who use our Site or Services.
13.3 Your linking to any other URL is at your own risk.
13.4 You agree that you must evaluate, and bear all risks associated with, the use of any content, that you may not rely on said content, and that under no circumstances will Silent Fundraising be liable in any way for any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise made available via the Site.
13.5 You acknowledge that while Silent Fundraising does not pre-screen or approve any content, Silent Fundraising shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any content that is available on the Site in violation of the provisions of this Agreement or for any other reason.
14. Privacy; Use of Silent Fundraising Transaction Information.
15. Disclaimer of Warranties.
15.1 Silent Fundraising attempts to list the Services available on our Site as accurately as possible. However, we do not warrant that our Services descriptions, sponsoring organization descriptions, item descriptions, or other content on the Site is accurate, complete, reliable, current, or error-free. The Site and the Services are provided on an "as is" basis. Silent Fundraising makes no representations or warranties of any kind, express or implied, concerning the Site, the Services or the content thereof. To the fullest extent permissible under applicable law Silent Fundraising disclaims any and all such warranties including without limitation:
15.1.1 Any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement;
15.1.2 That the Site or the Services will meet your requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error:
15.1.3 That the information, content and materials included on the Site will be as represented or available for auction or purchase;
15.1.4 Any implied warranty arising from course of dealing or usage of trade; and
15.1.5 Any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence of Silent Fundraising.
16. Indemnity and Defense.
16.1 You will defend, indemnify and hold harmless Silent Fundraising and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) that arise out of or relate to:
(i) your use of the Site and any Services;
(ii) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement;
(iii) any content you provide including but not limited to any actual or alleged infringement of any intellectual property or proprietary rights of any third party; and
(iv) any transaction you enter into either as a sponsoring organization offering items for auction, sale or as a bidder or as a donor, as the case may be, as a result of your use of the Site or the Services.
17. Limitation of Liability.
17.1 Silent Fundraising will not be liable for any damages of any kind, including without limitation direct, indirect, incidental, punitive or consequential damage or loss arising out of or in connection with this Agreement, the Site, the Services, inability to use the Site or the Services, or those resulting from any transactions facilitated, auctions conducted, items auctioned, purchased or obtained, or messages received or transactions entered into through the Site or the Services. In no event shall Silent Fundraising's liability exceed the amount of any fees paid to Silent Fundraising in connection with transactions under which the claim arose.
18. Applicable Law.
18.1 By visiting the Site you agree that the laws of the United States and the State of California govern this Agreement without giving effect to principles of conflicts of laws.
18.2 Subject to the provision of this Agreement titled "Disputes" any action arising under this Agreement shall be brought only in state or federal courts located in the County of Los Angeles in the State of California, which shall have exclusive jurisdiction and you and Silent Fundraising consent to the exclusive jurisdiction of such courts.
19.1 If a complaint or dispute arises you and Silent Fundraising will first make good faith and reasonable efforts to utilize Silent Fundraising's internal dispute resolution mechanism or other informal mechanisms in order to resolve the dispute. If the complaint remains unresolved, you and Silent Fundraising will utilize an online alternative dispute resolution ("ADR") service provider. You and Silent Fundraising consent to ADR as set forth in this provision as the exclusive means of resolving any dispute in the event that resolution by informal methods is unsuccessful. A party shall initiate any ADR proceeding through an established online alternative dispute resolution provider mutually agreed upon by the parties. In the event that you and Silent Fundraising do not agree on a mutually acceptable online ADR provider, each party shall select an ADR provider and those providers shall select an ADR provider to mediate the dispute. This selection will be binding on you and Silent Fundraising. The ADR provider and the parties must comply with the following rules: (i) the mediation shall be conducted solely by telephone, online and/or based on written submissions; (ii) the mediation shall not involve personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the mediator may be entered in any court of competent jurisdiction. The ADR provider will:
19.1.1 give reasonable notice to the parties that their dispute will be heard by the forum;
19.1.2 provide a clear description of its procedures and costs;
19.1.3 apply only the laws of the United States and the State of California in its evaluation and decision;
19.1.4 provide each party a reasonable opportunity to be heard through the presentation of oral testimony by telephone, online and/or by written argument and documentary evidence and the offering of written argument and documentary evidence in explanation or rebuttal;
19.1.5 provide to each of the parties a written statement of its decision and the reasons for the decision, except under circumstances justifying confidentiality.
20. No Agency; Third-Party Beneficiary.
20.1 Silent Fundraising is not your agent, fiduciary, trustee, or representative. Nothing in this Agreement is intended to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement.
20.2 This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended for the sole and exclusive benefit of Silent Fundraising and you.
21.1 If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
22. No Waiver.
22.1 We will not be considered to have waived any of our rights or remedies described in this Agreement unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver.
22.2 Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
22.3 Our failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Silent Fundraising's right to subsequently enforce such provision or any other provisions of this Agreement.
23. Entire Agreement.