First Day is a crowdfunding website product owned by Mobvantage Marketing Ltd. Mobvantage Marketing hereinafter will be referred to as ‘First Day’.
Welcome to the First Day, a website located at www.myfirstday.org (the “Site”). Please read these Terms of Service (“Terms”) carefully because they govern your use of our Site and our crowdfunding services accessible via our Site. To make these Terms easier to read, the Site and our services are collectively called the “Services.”
Through our Services, users can either (i) post information about a cause and post specific projects which that cause may be working on, called Causes (“Cause”) or (ii) set up a campaign to benefit a Cause (“Campaign”) or (iii) support a Cause or Campaign, for example by donating money to a Cause through the applicable Campaign. For purposes of these Terms:
Our Services help individuals, entities or organizations raise awareness and money for Causes (including via Campaigns), but we do not pick or endorse any such individuals, entities or organizations or any of their Campaigns or Causes. We merely provide a platform to allow Cause Owners to connect with Campaign Sponsors and Supporters. The Services are not a solicitation of Contributions by First Day and First Day does not engage in any solicitation activities on behalf of any individuals, entities or organizations or any of their Campaigns or Causes.
By using our Services, you agree to be bound by these Terms and our fee page, which is incorporated by reference into these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
You may use the Services only if you are 18 years or older and capable of forming a binding legal contract with us (or between the ages of 13 and 17 and using the Services with parental or legal guardian consent and supervision) and are not barred from using the Services under applicable law.
Registration is not required for use of all features of the Services. To make a Contribution to a cause or campaign you must submit a payment through a MoonClerk (MoonClerk LLC) form by which payments are processed through the online payment processor: Stripe. All Contributions submitted through MoonClerk are processed by Stripe
It’s important that you provide us with accurate, complete and up-to-date information when you submit Contributions on our platform and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or ban your use of First Day.
Making a Contribution is free. We do not charge fees for users to make Contributions to campaigns or causes. We reserve the right to change the fees at any time by posting the updated fees to the Services.
For information about fees of our third-party payment processors, please see our fee page. You are responsible for paying all taxes associated with your use of the Services. If you donate money to a Cause or Campaign, our third-party payment processing service will charge the payment method you designate via the Service (e.g., credit card). The third-party processor will then deposit the Contribution (net of applicable fees) into the charity’s merchant account with the third-party processor or send a check directly to the charity. We are not responsible for the performance of any third-party payment processing services. Unless otherwise specified in connection with a cause for a particular Campaign, All Contributions are made as unrestricted gifts and may not be specified for any particular purpose. First Day makes no representation as to whether all or any portion of your Contributions are tax deductible. First Day will have no liability for any claim by any federal, state, local or any other tax authority with respect to the characterization on any applicable tax return of any Contribution by you, any First Day user or any Cause Owner. You should consult your tax advisor as to the amount (if any) of your Contribution that is tax deductible, particularly if you receive a reward in connection with your Contribution. Contributions are not refundable. All Contributions are at your own risk. Please make sure that when you donate to a campaign or cause you understand who the benefiting charity is and how your money will be used. When donating, only donate to those causes and charities you feel comfortable donating to or otherwise know and trust. First Day does not control what any cause does with money received as a result of a campaign, and First Day does not and cannot warrant or represent the actual purpose to which any Contribution will be used by the recipient cause.
All Campaigns and Causes are solely to benefit bona fide charitable organizations with tax-exempt status in the United States and under section 501(c)(3) of the Internal Revenue Code and Canadian Registered Charities. Any charity wishing to benefit from the Services may be required to supply information to the applicable third-party payment processor to enable the processor to verify the organization’s status and properly deliver any payments to that organization. Such information may include, without limitation, the U.S. or Canadian tax ID number for the charity.
Some charities may provide logos and other information that they authorize for use in Campaigns. Any such materials may be used only in the form provided. In addition, any charity may withdraw permission to use its name or logo, or to conduct a campaign on its behalf, at any time in its absolute discretion, and we will honor any such requests even if it means terminating your campaign. As a campaign sponsor, you are independently responsible for complying with all applicable laws in all of your actions related to your use of the Services, regardless of the purpose of the use, including any laws relating to raising funds for charity. If any state or provincial regulatory agency overseeing charitable solicitation activity has concerns, they will be addressed to the campaign sponsor. We will of course cooperate in any investigation by any regulatory agency with concerns that a law is being violated by our users
Cause owners or campaign sponsors may choose to offer rewards in connection with their Causes or Campaigns. Cause Owners and Campaign Sponsors are solely responsible for the rewards they offer and for any terms and conditions relating thereto or compliance with applicable requirements in this regard.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Services, including any Cause or Campaign. Content includes User Content.
First Day does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, First Day and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of Canada and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
By making any User Content available through Services you hereby grant to First Day a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by First Day on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove certain of your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. Without limiting the foregoing, if you establish a Cause or Campaign using the Services, you acknowledge and agree that you cannot delete your Cause page or Campaign page after that date. You may however, if you are a Campaign Sponsor, set an end date for your Campaign so that new Contributions cannot be accepted via your Campaign after that end date. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
You agree not to create a Cause or Campaign, or offer any rewards, to raise funds for illegal activities, to cause harm to people or property, or to scam other users. You must comply with all applicable laws and regulations relating to your Cause, in carrying out your Campaign and in using funds generated for your Cause, as applicable.
Without limiting the foregoing, you agree not to do any of the following:
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content (including any Cause or Campaign), at any time and without notice, including if we, at our sole discretion, consider any Content (including any Cause or Campaign) to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
First Day respects copyright law and expects its users to do the same. It is First Day’s policy to terminate in appropriate circumstances users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy for further information.
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cease using First Day at any time. Upon any termination, discontinuation or cancellation of Services, all provisions of these Terms which by their nature should survive will survive, including the provisions entitled “Agreement to Terms,” “Feedback,” “Content and Content Rights,” “General Prohibitions and First Day’s Enforcement Rights,” “Links to Third Party Websites or Resources,” “Termination,” “Warranty Disclaimers,” “Indemnity,” “Limitation of Liability,” “Dispute Resolution” and “General Terms.”
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO REPRESENTATIONS AND WARRANTIES RELATING TO CAUSES OR CAMPAIGNS AND DISCLAIM ANY AND ALL LIABILITY RELATING THERETO.
We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
If you are a Cause Owner or Campaign Sponsor, you shall meet all commitments you make in or relating to your Cause or Campaign (including any rewards offered by you). You accept that you do not own or control any Campaign established to support your Cause, and you do not have any approval or removal rights with respect thereto. You must respond promptly and truthfully to all questions posed to you by First Day and users of the Services. If you are unable to fulfill any of your commitments, you will work with the Cause Owner, the Campaign Sponsor and the Supporters who have supported your Cause or Campaign (as the case may be) to reach a mutually satisfactory resolution, which may include refunding monies paid by Supporters. You are responsible for collecting and remitting any taxes on amounts received by you. First Day may attempt to verify your identity and other information you provided to us, and we may delay, withhold, reverse or refund any amounts paid without notice or liability in the event we are unable to verify any information to our satisfaction.
If you are a Campaign Sponsor or Supporter you are solely responsible for asking questions and investigating the Cause to the extent you feel is necessary before you do so. You are solely responsible for the actions you take to establish, donate to, or otherwise support a Cause or Campaign. First Day cannot and does not guarantee that monies raised will be used as promised, or that the Cause or Campaign will achieve its goals. First Day does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality or legality of any Cause, Campaign or Contribution, or the truth or accuracy of the User Content made available on the Service. If you are a Cause Owner, you are solely responsible for determining how to treat the monies raised for your Cause, including for tax purposes. If you are a Supporter, you are solely responsible for determining how to treat the Contributions made by you, including for tax purposes.
You will indemnify and hold harmless First Day and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) any Cause or Campaign created by you, (iii) your User Content, or (iv) your violation of these Terms.
EXCEPT AS OTHERWISE PROVIDED FOR IN THESE TERMS, NEITHER First Day NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT First Day HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL FIRSTDAY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO FIRST DAY FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FIRST DAY, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FIRST DAY AND YOU.
These Terms and any action related thereto will be governed by the laws of the Province of British Columbia without regard to its conflict of laws provisions.
You and First Day agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the provincial and federal courts of British Columbia and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and First Day are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and First Day otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you and First Day otherwise agree, the arbitration will be conducted in Canada. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and First Day submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. First Day will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, First Day will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms of Services” section above, if First Day changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of First Day’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and First Day in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between First Day and you regarding the Services, Content, Causes and Campaigns and these Terms supersede and replace any and all prior oral or written understandings or agreements between First Day and you regarding the Services, Content, Causes and Campaigns. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without First Day’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. First Day may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by First Day under these Terms, including those regarding modifications to these Terms, will be given: (i) via email to the email address you provide us via the Services; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
First Day’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of First Day. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact First Day at email@example.com by email or by mail at:
1750 Davie Street,
Vancouver BC, Canada