Using the Benevity Platform through the ATBcares.com Site, Canadian users of the Site will be offered the opportunity to make contributions of money and/or time to an “eligible charity”. The Site uses a donor advised fund arrangement to enable broad charity choice, administered by the Canadian Online Giving Foundation (the “Foundation”), a registered charity in Canada under 862216165 RR0001, whose primary activity is donor advised fund administration. The Foundation will further its charitable purposes by accepting (through the Benevity Platform) contributions of money from ATB, users of the Site and any matching partners (collectively, “Donors”), briefly holding the contributed funds pending distribution, and distributing the funds to organizations that are eligible Canadian registered tax exempt charities described in the Income Tax Act in good standing listed in a database within the Benevity Platform (the “Eligible Charity Database”) in accordance with Donor Advice (defined below) as part of a donor advised fund established in favor of contributors or corporate clients utilizing the Benevity Platform (the “Donor Advised Fund”).
Please read the following carefully.
- ATB has established one or more donation or volunteering programs within the ATBcares.com Site to facilitate the donation of amounts that are earned or acquired by you through your participation in such programs ( “Giving Programs”) established by ATB or ATB-approved third parties ( “Matching Partners”) to a list of charities from within the Eligible Charity Database ( “Eligible Charities”). ATB may add, remove or otherwise change Matching Partners and Eligible Charities at any time without notice. The general purpose of the Giving Programs is to facilitate the making of donations of money and/or time by you and other users of the ATBcares.com Site to Eligible Charities via a “donor advised fund arrangement” discussed below.
- This agreement (as it may be amended from time to time, the “Site Agreement” or this “Agreement”) sets out certain terms and conditions applicable to users of the Benevity Platform and all Giving Programs which utilize its functionality, supersedes all previously published terms and conditions or agreements relating to Giving Programs, and is separate and distinct from all agreements ( “Giving Program Agreements”) entered into between you and ATB or other Matching Partners relating to Giving Programs. This Agreement may be amended at any time by Benevity or ATB (sometimes collectively referred to as “we” and “us”) posting the amended version to the ATBcares.com Site.
- Your Site Responsibilities
- You may use the ATBcares.com Site from a Canadian domain or location or from another location if you are a Canadian taxpayer, and you agree to the terms below. If you disagree with any of these terms, you are not entitled to access or utilize any of the Benevity Platform's charitable donation functionality presented in the ATBcares.com Site.
- You agree that all information you submit to the Site is accurate and that you will keep it current. If we have grounds to suspect that your Donor information is untrue, inaccurate or incomplete, we have the right to suspend or terminate your Site access.
- You shall treat other Site users with courtesy and respect. You shall not: Impersonate any other person; Falsely say or imply that you are associated with another person or entity; Submit content in exchange for payment or other consideration from another person or entity; Collect information about other Site users without their consent; or Submit or link to any content that: (i) infringes or violates the intellectual property or other rights of any person or entity; (ii) intentionally interferes with the operation of the Site or any Giving Program; (iii) violates anyone's privacy or publicity rights; (iv) breaches any duty of confidentiality that you owe to anyone; (v) provides any non-public information about Benevity or ATB or the Foundation or any other company or person without authorization; (vi) is, in our judgment, harassing, defamatory, abusive, lewd, pornographic, obscene or otherwise objectionable; (vii) contains or installs any viruses, worms, bugs, Trojan horses, malware or other code, files or programs designed or having the capability to disrupt, damage or limit the functionality of any software or hardware; or (viii) contains false or deceptive language, unsubstantiated or comparative claims regarding Benevity's or others' products, advertising, commercial referrals, spam, chain letters, or any other solicitation, including solicitation of lawsuits. We reserve the right, in our sole discretion and without notice to you, to remove any content submitted or posted by you to Site pages.
- Participation and Acceptance
- Your acceptance of this Agreement will constitute your acknowledgment that you have received, read and agreed with the terms and conditions of this Agreement, as they may be amended from time to time. The posting of this Agreement, as amended from time to time, on or via the ATBcares.com Site (via hyperlink, i-frame or otherwise) is deemed notice to you of this Agreement and any amendment of it, where notice is required or permitted to be given. Furthermore, registration or participation in any Giving Program or any use of the Benevity Platform constitutes acceptance of this Agreement, as amended from time to time.
- You acknowledge that only individuals who are Donors may be entitled to participate in certain Giving Programs. You are advised to review the Site Documents and any applicable Giving Program Agreement to determine the terms and conditions of any such participation. You acknowledge and agree that Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (the “Benevity Parties”) will not have any liability or responsibility to you in connection with any Giving Program, and you release and forever discharge the Benevity Parties from all claims in connection with such matters.
- Types of Donation Transactions
- There are several ways to effect donations through the Benevity Platform, depending upon the nature and mechanics of the relevant Giving Program in the ATBcares.com Site. Generally, the creation and allocation of donation amounts to the credit of a Donor within the Benevity Platform represents either: (a) the purchase by a Donor of donation amounts using its own funds via or credit card but facilitated through the ATBcares.com Site (a “Direct Gift”); or (b) a gift by a Donor of the right to provide advice as to the chosen Eligible Charit(ies) to receive a donation (“Donor Advice”) equal in value to the donation amount, subject to the Foundation's approval of such Donor Advice in its discretion (a “Donor Advice Gift”). Donation amounts may also be allocated to Eligible Charities as part of Matching Programs (defined below) funded by ATB or other Matching Partners (a “Matching Gift”). ATB will determine and set forth in the terms of the ATBcares.com Site whether and how it wishes the allocation of donation amounts to result in Direct Gifts, Donor Advice Gifts and Matching Gifts, as the case may be (collectively, “Gifts”). The current ATB Donation Program permits Direct Gifts by users in favour of Eligible Charities using their own funds through the ATBcares.com Site using the merchant account facilities of ATB (the “Merchant Account”), the fees for which are being paid by ATB. The following provisions apply respecting different types of Gifts made through the Benevity Platform, and all Gifts are subject to the Default Rules in Article 10 as applicable:
- Neither donation amounts allocated to accounts within the Benevity Platform nor any funds on account thereof are transferable without the express consent of ATB.
(a) Direct Gifts. In the case of a Direct Gift (such as a donation from a Donor's own funds via credit card), it is intended that the donation and any tax receipt be for the credit of the original Donor. Through the services of the Merchant Account provider,the Donor has or will have provided funds in favour of an Eligible Charity to or for the benefit of the Foundation representing the
Direct Gift. Upon the corresponding funds being transferred to or held for the benefit of the Foundation from or via the Merchant Account provider, the donation will normally represent a receiptable gift by the Donor to the Foundation through the Benevity Platform, subject to the Foundation's receipt and approval of the Donor Advice and to the Default Rules.
(b) Donor Advice Gifts. In the case of a Donor Advice Gift (such as a charitable gift card), it is intended that the recipient of the Gift receive only the right to provide Donor Advice. Upon purchase and allocation of donation amounts to other Donors within the Benevity Platform and upon the corresponding funds being transferred to the Foundation, the donation amount will normally represent a receiptable donation by the purchaser of the charitable gift card, subject to the Foundation's receipt and approval of the Donor Advice to be provided by the Donor recipient and to the Default Rules.
(c) Matching Gifts. The Benevity Platform includes functionality that enables ATB and other Matching Partners to “match” donations made by users of the Site on terms determined by them or to reward certain behaviours with donation currency (a “Matching Program”). A matching component from ATB or other Matching Partner does not normally result in Donors directly acquiring donation amounts as in (a) described above. Matching Programs result in ATB or a Matching Partner making a donation to the Foundation for which, upon the corresponding funds being transferred to the Foundation, a tax receipt will normally be available in the name of ATB or other Matching Partner, as the case may be, in the manner of a Direct Gift, subject to the Foundation's approval of the Donor Advice and to the Default Rules. Donations made under Matching Programs are at the complete discretion of ATB or such other Matching Partner and may not reflect real-time availability of remaining budget as displayed on the Site.
- Earned or Gifted Donation Currency
- You acknowledge that Benevity relies on information provided by ATB or Matching Partners with respect to the Gifts being made and all matters relating to the presentation and execution of the Giving Program within the ATBcares.com Site, and you release and forever discharge the Benevity Parties with respect to all claims relating to such matters.
- Any funds received by or on behalf of ATB or the Foundation on account of donation currency to which you are entitled through participation in any Giving Program will be held in trust by or on behalf of ATB in accordance with this Agreement and any relevant Giving Program Agreement. The Foundation must be in receipt of funds from or via ATB or the Merchant Account provider representing the redemption amount of all donation currency allocated by a Donor before any donation is formally effected or tax receipt available. Once such amounts have been donated or deemed donated pursuant to the relevant Giving Program and this Agreement, the funds are beneficially owned by the Foundation and a donation is effectively made on behalf of the relevant Donor to the Donor Advised Fund, subject to receipt of Donor Advice, and to the approval of such advice by the Foundation in its discretion.
- In delivering certain aspects of the Giving Programs and the Site, ATB utilizes both the Benevity Platform and the services of the Foundation. You direct ATB or its agent to make a Gift on your behalf of all funds held in trust by ATB or its agent for your benefit on account of donation currency earned or acquired or allocated by you, subject to adjustments permitted under this Agreement, to the Foundation on the date (the “Donation Date”) that is the later of (a) and (b) below, where:
(a) is the earlier of: (i) in the case of a Direct Gift or a Donor Advice Gift made by you, the date upon which you have instructed ATB to make the donation through the Site; and (ii) in any case where any of the Default Rules apply, the date on which the donation is deemed effected by such Default Rule; and
(b) is the date on which the Foundation is in receipt of unrestricted funds in an amount equaling the donation currency allocated.
Such Gifts will be received by the Foundation or by ATB as agent to be transferred to the Foundation, and thereafter will normally be a tax receiptable donation made by the Donor to the Foundation. All such donations, will be subject to a “donor advised fund arrangement” in your favour, and any applicable processing fees are being paid by ATB.
- All donations are non-refundable. Pursuant to the legalities of a “donor advised fund arrangement”: (i) you agree that the Foundation, as the recipient of the donation, will consider your advice in respect of which Eligible Charities the donation will be donated by the Foundation; and (ii) you acknowledge that you have no legal power to compel the Foundation, as recipient of the donation, or ATB, as agent of the Foundation, to donate in accordance with such advice.
- Tax and Tax Receipts
- If you are a Canadian taxpayer and in compliance with this Agreement and all other Site Documents, you will normally receive a tax receipt (PDF file accessible at the Site or by email) with respect to applicable Gifts made by you to the Foundation during a calendar year as soon as practicable and in any event within two (2) months after the end of that year. The relevant date of the tax receipt will be the Donation Date in the taxation year in which the amounts were donated to the Foundation in accordance with this Agreement. Please note that if you do not provide the information necessary for the Benevity Platform on behalf of the Foundation to generate a receipt on or before December 31 in any calendar year, you may not be entitled to a receipt for donations made in that year (see the Default Rules in Article 10 below).
- Notwithstanding anything contained in this Agreement, any Giving Program Agreement or other Site Document, or the issuance of any tax receipts in your name by or on behalf of the Foundation, in no event shall Benevity, ATB or the Foundation be liable to you for any direct or indirect damages, including without limitation any tax, interest, fines, damages, penalties or other levies imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Giving Program or the use of the Benevity Platform, whether through the Site or otherwise. You must consult your own tax and legal advisors respecting the actual tax or other impact of donations made by you through the Site.
- ATB as Your Trustee
- You irrevocably appoint ATB as your trustee to receive funds from you or other Matching Partners or third party payment processors on account of donation currency to which you are entitled through participation in Giving Programs. You acknowledge and agree that:
(a) until the Donation Date, these funds will be held by ATB or by the Foundation on behalf of ATB for your benefit;
(b) these funds may be comingled with funds received in trust for other users on account of donation amounts earned or provided by such users;
(c) ATB or its designee, as trustee, has all the powers of a natural person with respect to these funds, including without limitation, all those necessary to deal with and transfer or gift these funds pursuant to the terms of this Agreement and any Giving Program Agreement;
(d) Neither ATB nor the Foundation has any responsibility or duty to invest these funds provided however that if interest is earned on these funds, the Foundation can keep any interest earned, and pay such interest to itself;
(e) In performing its obligations and duties hereunder, ATB will exercise the care, diligence and skill that a person of ordinary prudence would exercise in dealing with the property of another person;
(f) ATB will have no liability or responsibility as trustee until funds are received from a Matching Partner or third party payment processor on account of donation currency earned or purchased by you;
(g) ATB may retain the services of the Foundation, Benevity or others to perform any of its obligations under this Agreement, including its obligations as trustee hereunder;
(h) ATB will be released from its obligations as trustee upon the donation or deemed donation of these funds to or for the benefit of the Foundation;
(i) Upon any suspension, disqualification or termination of this Agreement, any Giving Program Agreement or your privileges to use the Site, ATB will continue to be your trustee until such time as there are no longer any funds held by or on behalf of ATB for your benefit on account of donation currency, subject to the Default Rules; and
(j) ATB can amend this Agreement and the terms of this trust as it may determine in its sole discretion, provided that no amendment may change the beneficial ownership of such funds without your consent.
- ATB accepts its appointment as agent and trustee pursuant to the terms of this Agreement.
- Suspension, Disqualification and Termination
- Either Benevity or ATB, in its sole discretion, may suspend your participation in any Giving Program for any reason with or without notice. ATB will contact you by email at the address provided in your user profile or other contact information on the Site to attempt to resolve the matter underlying the suspension. Upon disqualification due to lack of resolution, your access to the Site may be closed, you will no longer have any rights under this Agreement and ATB as trustee will be entitled to transfer any funds held in trust for your benefit on account of donation currency to the Foundation and the Foundation will be entitled to utilize any such funds as it may determine in its sole discretion.
- ATB, in its sole discretion, may terminate any Giving Program or any part of it for any reason on notice to you posted on the Site. You will have 60 days from the date of notice to provide Donor Advice respecting any donation currency in a Giving Account to your credit or to which you are entitled, following which such remaining funds will be dealt with by the Foundation in accordance with the Default Rules in section 10 below.
- Default Rules
- It is intended that there be no “breakage” within the Benevity Platform, such that all donation currency ends up generating donation funds to a charity. In certain circumstances identified below (collectively called the “Default Rules”), the results of intended actions within the Benevity Platform or the relevant Giving Program may be modified in the manner specified where a Default Rule is applicable.
- In circumstances where: (i) Donor Advice is not provided within the time specified in the Site Documents and in any event within 12 months following December 31 of the year in which the donation amounts were allocated to a user; (ii) an Eligible Charity requested as part of Donor Advice is (a) no longer registered and in good standing with the Canada Revenue Agency or other relevant regulatory agency, or (b) is otherwise no longer in the Eligible Charity Database; (iii) the donation amounts allocated across the Benevity Platform to a particular Eligible Charity do not exceed the transfer threshold of the Foundation (currently $100) within 2 years of the relevant Donation Date; or (iv) the Foundation, exercising its discretion under a “donor advised fund arrangement”, chooses to disagree with or ignore the Donor Advice, then the Foundation, in collaboration with ATB, will make the determination of the Eligible Charity to which such donation will be made.
- In circumstances where: (i) a tax receipt is not requested via the Benevity Platform or required information for tax receipt issuance provided by a Donor on or prior to December 31 in any calendar year in which donation amounts have been allocated to such Donor; or (ii) the Foundation determines that the donation is not properly receiptable by it under applicable law, the Foundation may issue the tax receipt to ATB or other Matching Partner if applicable and in all other cases the subject donation will be deemed “anonymous” and no receipt will be issued or accessible to the Donor.
- In circumstances where: (i) the relevant Donor has not provided sufficient funds equal to allocated donation amounts; or (ii) bankruptcy or other legal process affecting any Donor compels the Foundation to return any funds held by it respecting donation amounts, no donation can be deemed effected and no receipt issued unless and until funds representing the allocated Donation Credits are unequivocally transferred to the Foundation.
- Representations and Warranties
- You represent and warrant to each of ATB, Benevity, the Foundation and any Matching Partner that you are over the age of majority in the jurisdiction in which you reside and that this Agreement constitutes a binding and enforceable agreement against you, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity relating to enforceability.
- Any claim, dispute or controversy (whether in contract or tort, pursuant to any statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this Agreement; (b) the Benevity Platform and the Site; (c) oral or written statements, advertisements or promotions relating to this Agreement or the Benevity Platform or the Site or any Giving Program; (d) the relationships that result from this Agreement (including relationships with third parties) (collectively, a "Claim"), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). You agree to waive any right you may have to commence or participate in any class action against Benevity or the Foundation related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Benevity or the Foundation. If you have a Claim you should give written notice to arbitrate to Benevity at the address obtained by following the instructions in Section 14. If Benevity or the Foundation has a Claim it will give you notice to arbitrate at the address you have provided to ATB in association with the use of the Site. Arbitration of Claims will be conducted in such forum and pursuant to such rules as you and Benevity agree upon, and failing agreement will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the Province in which you reside that are in effect on the date of the notice to arbitrate.
- You are solely responsible for any personal tax liability arising from participation in any Giving Program. You are advised to consult with a personal tax advisor in order to determine any personal tax consequences. You agree to release ATB, Benevity, the Foundation and their respective directors, officers, agents, employees, contractors, affiliates, successors and assigns from any and all claims for direct or indirect damages, including without limitation any tax, interest, penalties or other amounts imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Giving Program or the use of the Benevity Platform, whether through the ATBcares.com Site or otherwise.
- This Agreement and its benefits are offered at the sole discretion of ATB and Benevity. You understand and agree that either ATB or Benevity may at any time, with or without notice, change this Agreement in whole or in part. In the event of conflict in the interpretation or meaning of any content or information contained in or through the Site that is offered in a language other than English, the English language content shall be determinative.
- ATB, Benevity and the Foundation may rely on your acceptance of and agreement with this Agreement. No person or entity other than you, ATB, Benevity, the Foundation or other Matching Partners are intended to be a beneficiary of or may rely on this Agreement unless expressly stated herein.
- No delay or omission by ATB or Benevity in exercising any right or remedy contained in this Agreement will operate as a waiver of any of such rights and remedies nor shall it be interpreted as such. Either or both of ATB and Benevity may, in its sole discretion, deviate from the strict observance, performance or compliance by you of any terms and conditions of this Agreement. Such deviations will not alter, affect or prejudice any of ATB's or Benevity's other rights or remedies and will only be effective in the specific instance and for the specific purpose for which it was given and will be deemed not to be a waiver of any other of ATB's or Benevity's rights or remedies as a result of any other breach of this Agreement.
- You agree to hold ATB, Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (collectively, the “Indemnitees”) harmless from and against all liability, causes of action, tax liability, penalties, costs and claims, and will reimburse the Indemnitees' reasonable and actual expenses incurred in connection therewith (including legal fees and costs), arising from or related to your participation in any Giving Program including, but not limited to, any breach by you of this Agreement or any fraud, misrepresentation or abuse committed by you in connection with your participation in any Giving Program or any other person using the Site under your name.
- Benevity is not affiliated in any manner with any Matching Partners or Eligible Charities and is not agent, representative or employee of any of them (other than limited agent of the Foundation) and no such party has the power to obligate or bind the other. Giving Programs, this Agreement and any other Site Documents are each independent of the others. Except as expressly set forth in this Agreement and to the fullest extent permissible pursuant to applicable law, neither ATB nor Benevity makes any representations or warranties, express, implied or statutory, to you in connection with the Benevity Platform, any Giving Program, any Matching Partner, or any Eligible Charity. You assume total responsibility and risk for your use of the Site and your reliance thereon. You consent to the formation of contractual relations through electronic communications.
- Notwithstanding the governing law of any agreement between you and ATB or other Matching Partner, this Agreement shall be governed by the laws applicable in the Province of Alberta, Canada, and you agree to irrevocably attorn to the exclusive jurisdiction of the Province of Alberta. Any interpretation, question or dispute regarding a Giving Program or this Agreement will be resolved at the sole discretion of ATB or Benevity, as the case may be. In no event will ATB's liability with respect to a Giving Program, including liability for negligence or breach of contract, be greater than the value of donation currency in your favor at the time the dispute arose. If any provision of this Agreement is invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of this Agreement.
- This Agreement constitutes the entire agreement between you and Benevity regarding your utilization of the Benevity Platform in the ATBcares.com Site, including without limitation your entitlement to be paid the funds held by or on behalf of ATB or other Matching Partners for your benefit on account of donations.