1. Introduction
1.1 Welcome to Tufund (www.tufund.org) (the "Website"). These terms ("Terms of Service") is between you ("you") and Tufund (together with our affiliates, service providers, and partners, "Tufund" "we," and/or "us") and governs your use of the Website and successor website(s), including the materials and information posted on it, and the functionality that permits you to make and/or receive donations, solicit donations, create an account, establish fundraisers, solicit donations for a Fundraiser, or to use any other functionality offered through the website.
1.2 The Website offers a platform to people, organizations or companies ("Proponents ") to source funding for social causes, community projects, charity functions, community functions and many more (“Fundraiser”) and where individuals, companies or organizations (“Backers”) can contribute money or donate money (“Contribution”) to support the Fundraisers.
1.3 Please read these Terms of Service carefully. If you do not wish to be bound by these Terms of Service, you should not continue to use or access the Website or its associated services.
1.4 You acknowledge and agree that you have read and understood these Terms of Service and you agree to be bound by these Terms of Service each time you use the Website.
1.5 If you are accessing the Website in order to create a Fundraiser, you agree to these Terms of Service both personally and on behalf of your Proponent as its authorized representative. If you are not authorized to accept these Terms of Service for your Proponent, you must not submit a Fundraiser to the Website on its behalf.
1.6 Tufund reserves the right to update this Terms of Service from time to time in its sole discretion by posting an announcement of such update on the Website. You must check for updates whenever you access the Website. By continuing to use the Website and its associated services after such updates, you acknowledge and agree to be bound by the Terms of Service as last updated.
1.7 You acknowledge and agree that a printed version of this Terms of Service and/or any electronic communication from the Website shall be admissible in judicial or administrative proceedings based upon or relating to this Terms of Service and/or your use of the Website to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
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2. Terms for Backers
2.1 You make your Contribution to a Proponent, not to Tufund – we only hold the Contribution in trust for the duration of the Fundraiser campaign. Following the expiry of the Fundraiser campaign deadline, where there is no extension of the deadline by the Proponent, Tufund will promptly transfer your Contribution to the Proponent. The Proponent will pay any amounts owing to Tufund directly to us. Contributions can be made via ………. (“Payment Providers”) according to the terms and conditions of the Payment Providers.
2.2 Contributions can be made at any time from the start of a Fundraiser campaign up to the Fundraiser campaign deadline for time limited Fundraisers. For time limited Fundraisers, once deadline expires, no more Contributions can be made via the Website. Any extension to the deadline should be made by the Proponent before the deadline expires pursuant to Clause 3.8.
2.3 You cannot cancel a Contribution for any reason whatsoever once your Contribution has been collected.
2.4 Proponent may cancel or refund a Backer’s Contribution at any time at their discretion and for any reason. They may only do this outside the Tufund platform.
2.5 In case of a reversal contemplated under Clause 3.5 below, Tufund will deduct its fees from the original amount of your Contribution prior to us issuing any refund to you.
2.6 Any disagreements whatsoever on how the Fundraiser is run or how the Contributions are used should be taken up directly with the Proponent and not Tufund.
3. Terms for Proponents
3.1 When you create your page, account or profile to submit your Fundraiser campaign for approval for listing on the Website, you will be asked to provide certain personal information, such as your name, contact information and supporting documentation, and given the opportunity to select one or more user names and passwords (collectively, your "Profile ")
3.2 Tufund fully vets all requests to set up a Fundraiser campaign prior to launch. Proponents must provide conclusive information as required on the Website on their status and their proposed Fundraiser.
3.3 Tufund, in its sole discretion, reserves the right to accept or reject the listing on the Website of any Fundraiser.
3.4 All requests for Fundraiser listing on the Website must satisfy the below requirements: 3
• Proponent must include his/her/its full name, identity documents, phone number and email address; • Proponent must include the fundraising target and the expiry date of the Fundraiser campaign for time limited campaigns; • Proponent must include a description of the Fundraiser campaign, purpose of the Fundraiser, and attach any supporting documentation; and • Proponent must comply with all the necessary laws, rules and regulations relevant to the jurisdiction that you intend to fundraise from. 3.5 You acknowledge and agree: • To provide accurate and truthful information on your Profile, and to promptly update this information to reflect any changes; • That you represent that you have all rights in the information necessary to provide it to Tufund; • That the Profile is for your personal use only and may not be transferred to any third party; • That you are exclusively responsible for the security and confidentiality of your Profile and for all use of the Website that occurs in connection with your Profile, with or without your knowledge; • That you are required to completely log out of the Website at the end of each session and to notify Tufund promptly if you learn of any unauthorized use of your Profile; • That if you are accepting these Terms of Service as a representative on behalf of the agency or other entity, you represent that you have the rights to submit the registration information on behalf of that agency or other entity; • That you must complete all Fundraisers for which Contributions are collected via the Website substantially in line with the plan set out on your Profile, or refund Backers immediately in full; • That within 4 months after the Fundraiser campaign deadline to provide on the Website a minimum of two updates on the progress of your Fundraiser and how the Contributions have been used; • To appoint Tufund as your agent, and we accept appointment as your agent, for the purpose of collecting Contributions and providing receipt to the Backers; • To pay Tufund a 4.5% fees on all Contributions on your Fundraiser and that the fees together with any applicable service charge from third-party platforms like Visa, MasterCard, and PayPal will be deducted by Tufund from the Contributions prior to remitting the Contributions to you. • That Tufund will remit the Contributions to your designated money account within three (3) business days after the expiry of the Fundraiser campaign deadline.
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• That in some circumstances (such as fraud or error), Tufund and its payment providers may be required to reverse Contribution(s) made via the Website. You authorize Tufund, after deducting its fees, to make such reversals and associated costs of reversal from the Contributions held in trust. In cases of suspected fraud, Tufund, after deducting its fees, may refund some or all of your Contributions without notice. • To correctly calculate and remit all taxes, if any, applicable to the Contributions; • To comply continuously with all laws, legislation, rules, regulations and industry standards applicable to you as a Proponent; • To obtain and continue to maintain, any necessary licenses, consents, approvals or other relevant permissions required to use the Website and run a Fundraiser campaign (if any); and • Tufund will not be liable for any loss or damage arising from your failure to comply with this Clause 3.5.
3.6 Upon the launch of the Fundraiser campaign on the Website, you may edit the content of your Profile, provided this does not alter the substance of the Fundraiser (to be determined by Tufund in its sole discretion).
3.7 We do not take any responsibility for a Fundraiser not attaining its fundraising target by the by the expiry of the Fundraiser campaign deadline. 3.8 Time limited Fundraiser campaigns enjoy up to a maximum of 90 days’ campaign period that may only be extended once for a maximum of 30 days.
4. General Terms for all user of the Website.
4.1 Contributions made via Tufund may or may not be tax deductible for taxation purposes. It is your sole responsibility to determine the taxation consequences, if any, of making or receiving a Contribution.
4.2 You may submit content to us for inclusion in a Fundraiser's campaign or publication as a comment on the Website. You agree that we may publish and communicate to the public any such content and you grant us a perpetual, royalty-free, non-exclusive, irrevocable, worldwide and transferable license to display, reproduce, modify, add to, use, copy, publish, transmit, index, crawl, communicate and adapt such content for any purpose and in any manner anywhere in the world, including (without limitation) on and in relation to the Website and its associated services, or any other services or products and permit any other person, company or organization to do any of the things referred to in this Clause 4.2.
4.3 All intellectual property rights comprised in or relating to the Website (including the Tufund logo and site design and the name Tufund.org ("IP") belong to Tufund or our licensors. Your use of any IP owned by third parties may be subject to a third party's terms and conditions of use. Nothing in these Terms of Service (or otherwise on the 5
Website) constitutes a transfer or license of any IP to you. You must not use any such IP without the express permission of Tufund and, if applicable, the licensor of such IP. Use of third party IP without permission may be an infringement of IP rights and is a serious breach of these Terms of Service, entitling Tufund to terminate your Profile immediately (without affecting any other rights Tufund may have).
4.4 You agree that you will not post, transmit, distribute, publish, use, or otherwise make available, through or in connection with the Website: • Anything that is or may be (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory; (c) fraudulent or tortuous; (d) obscene, indecent, pornographic, offensive, or otherwise objectionable, in all cases as determined by Tufund in its sole discretion; • Anything that is protected by copyright, trademark, trade secret, right of publicity, moral rights, or other proprietary right without authorization from the rights-owner; • Any material that would give rise to criminal or civil liability; that encourages violence or other conduct that constitutes a criminal offense; or that encourages or provides instructional information about violent, offensive, or illegal activities; • Any hardware, software, equipment, virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that may: (a) harm Tufund or invade, harm, disrupt or hijack the operation of the Website; (b) mislead or harm any third party; (c) monitor access to or use of the Website by others; • Any unsolicited or unauthorized advertising, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme," communication or solicitation designed or intended to obtain password, account, or private information from any user, or any other form of solicitation;
4.5 You agree to indemnify Tufund, its affiliates, and each of its and its affiliates’ employees, officers, contractors, directors, suppliers, and representatives from and against all losses, liabilities, claims, damage and expenses (including legal costs and expenses on a full indemnity basis) and penalties incurred or suffered by them that arise from or relate to: • your use or misuse of, or wrongful access to, the Website; • any act of fraud, breach of applicable law or willful misconduct by you or on your behalf; and • the publication or use of content submitted by you including, without limitation, claims brought by any third party relating to defamation, negligent misstatement, injurious falsehood, contempt of court, right to privacy, copyright infringement, trade mark infringement, other intellectual property infringement, disclosure of confidential information, passing off, and misleading or deceptive conduct. The indemnities in Clause 4.5 above survive termination of these Terms of Service.
4.6 Tufund may suspend or terminate the Proponent’s access to and/or use of the Website and its associated services by giving written notice to you if you breach these Terms of Service and, in Tufund’s reasonable opinion: 6
• your breach is significant or serious; and • suspension or termination of access, as applicable, is justified by your breach. 4.7 The Proponent may terminate their Profile by following the instructions on the Website. Upon termination Tufund will delete your content with no obligation to provide you with a copy of your content and may remove and discard any data at any time from the date of termination.
4.8 This Agreement is governed by and shall be construed in accordance with the laws of Kenya, without regards to its principles of conflicts of law. You agree to exclusive jurisdiction of Kenyan courts, and waive any jurisdictional, venue or inconvenient forum objections to such courts. Notwithstanding this, you agree that Tufund may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. THE WEBSITE AND ALL INFORMATION, SERVICES OR LINKS FOR CONTRIBUTING DESCRIBED AND/OR AVAILABLE ON OR THROUGH THE WEBSITE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR, ALL RISKS ASSOCIATED WITH THE USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF ANY CONTENT OR SERVICES AVAILABLE ON OR THROUGH THE WEBSITE OR THROUGH ANY LINK OR LISTING. TUFUND DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE; FUNDRAISERS OR OTHER OPPORTUNITIES FOR CONTRIBUTING DESCRIBED, FEATURED, AND/OR AVAILABLE ON OR THROUGH THE WEBSITE; THE USE OF CONTRIBUTED FUNDS PROMISED OR PLEDGED; AND ANY CONTENT OR SERVICES AVAILABLE ON OR THROUGH THE WEBSITE OR THROUGH ANY LINK OR LISTING, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. TUFUND SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (INCLUDING DETRIMENTAL RELIANCE), INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF INTELLECTUAL PROPERTY, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION IN CONNECTION WITH YOUR USE OR ANY OTHER PARTY'S USE OR MISUSE OF THE WEBSITE, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE IS TO STOP USING THE WEBSITE. THE MAXIMUM LIABILITY OF TUFUND FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT
7 (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE $100 US DOLLARS. WE DO NOT GUARANTEE THAT THE WEBSITE WILL BE OR REMAIN SECURE, COMPLETE OR CORRECT, THAT THE WEBSITE, THE SERVER THAT MAKES THE WEBSITE AVAILABLE, OR THE SERVICES ARE FREE OF ERRORS, VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED. THE WEBSITE MAY INCLUDE INACCURACIES, ERRORS AND MATERIALS THAT VIOLATE OR CONFLICT WITH THIS TERMS OF SERVICE. ADDITIONALLY, IT IS POSSIBLE THAT THIRD PARTIES MIGHT MAKE UNAUTHORIZED ALTERATIONS TO THE WEBSITE