CHIMP’s Community Account Agreement

CHIMP’s Community Account Agreement - January 2017

This CHIMP Community Account Agreement (the "Agreement") is a legal agreement between you on behalf of a Community, after you become a User of the CHIMP System, and the CHIMP Collective (as defined in this Agreement). In this Agreement, the CHIMP Collective shall be referred to as the "CHIMP Collective", "we", "our" or "us" and you shall be referred to as "you" or as a "Community".

By clicking the I AGREE button set out below, or by using the CHIMP System or the Services we provide or by making a Donation, you accept the terms and conditions set out in this Agreement and confirm that you have authority to enter into this Agreement and authority to perform the obligations of a Community set out herein.

1. Definitions

1.1 In this Agreement, (a) "CHIMP Account Agreement" means the agreement entered into with the Foundation by you, or your predecessor where applicable, to create a CHIMP Account, as amended from time to time, (b) "Charitable Investment Account Agreement" means the agreement entered into with the Foundation by you, or your predecessor where applicable, as amended from time to time, (c) "Giving Group" has the meaning described in the CHIMP Account Agreement, (d) capitalized terms which are not otherwise defined herein have the same meaning ascribed to them in the CHIMP Account Agreement unless the context otherwise requires or permits, (e) Article 3, dealing with the site license, Article 4, dealing with information, privacy and access, Article 11, dealing with disclaimers, Article 12, dealing with limitation of liability, Article 13, dealing with links to external sites, Article 14, dealing with indemnity and remedies, Article 15, dealing with amendments, Article 16, dealing with termination, Article 17, dealing with notice, Article 18, dealing with survival, Article 19, dealing with assignment, Article 20, dealing with governing law, Article 21, dealing with severability, Article 22, dealing with enurement, and Article 23, dealing with the entire agreement as set out in the CHIMP Account Agreement, are all expressly incorporated into this Agreement, with such changes as the context require or permit; and (f) the following terms shall have the following meanings:

"CHIMP Account Agreement" means the agreement between a User and the CHIMP Collective, which allows the User to open a CHIMP Account and use the CHIMP System and the Services, to make Donations, to make recommendations regarding Disbursements, to give instructions regarding Transfers, to create or join a Giving Group, to post, search and/or upload certain information and review certain information posted by one or more of the CHIMP Collective, other Users or One-Time Donors on the CHIMP System and to enable one or more of the CHIMP Collective to provide additional and/or premium services to the User from time to time, but does not include a Charitable Investment Account;

"Community" means a User who, on behalf of an existing or contemplated group of Users, has entered into this Agreement with the CHIMP Collective to use the CHIMP System and the Services, to make Donations, to make recommendations regarding Disbursements, to give instructions regarding Transfers, to create a Community Giving Program, and to enable one or more members of the CHIMP Collective to provide additional and/or premium services to the Community from time to time, and “Communities” has a corresponding meaning;

"Community Account" means the Community Account established by you in accordance with this Agreement;

"Community Account Identification" means the identification name(s), number(s) and/or password(s) that we authorize you to use which enables you to access your Community Account, use the Services;

"Community Account Administrator" means a User designated by a Community and authorized by us to act as an administrator for a Community Account as contemplated in paragraph 6.3. The Person who creates your Community Account must have a CHIMP Account prior to establishing your Community Account;

"Community Account Agreement" means this agreement, as referred to by that term in the CHIMP Account Agreement;

"Community Member" means a User who participates in a Community and may include you;

"Community Profile" means your Community profile based on the information you provided to us;

“Community Giving Program" means a program created by a Community Administrator using a Community Account to create a Community Transfer and matching policy for Community Members, create Giving Group matching or Transfer policies, send content to and communicate with Community Members, and to collect data about participation in and the impact of the giving program using the CHIMP System and the Services;

2. Foundation

2.1 The Foundation is a non-share capital corporation that was originally incorporated under the Canada Corporations Act, is registered by Canada Revenue Agency as a charity with Registration #845528827RR0001, is designated as a public foundation under section 149.1 of the Income Tax Act (Canada), has had audited financial statements since its fiscal year-end 2011 and has continued under the Canada Not-for-profit Corporations Act.

3. CHIMP Collective Obligations

3.1 Upon receipt of the required information from you and subject to your compliance with this Agreement, we agree that:

(a) we may establish a Community Account and a Community Profile for you and provide you with the Community Account Identification to enable you to use the Services;

(b) we may establish a Giving Group Account for you and other Giving Group Members;

(c) we may allow you and other Persons to participate in a Giving Group;

(d) we will maintain appropriate records for each CHIMP Account, Community Account and Giving Group Account;

(e) we may provide you with information from time to time regarding the CHIMP System and the Services;

(f) we will maintain confidentiality of any information that you provide us in a manner that is consistent with applicable legislation and in accordance with our Privacy Policy;

(g) we will make a report of all Donations, Disbursements, Transfers and administrative costs relating to your Community Account available to you;

(h) we will use the Donations in a way that is consistent with the laws governing registered charities in Canada and our financial statements will be subject to an annual audit by the Auditor; and

(i) we will provide you or any other Person who makes a Donation to the Foundation with an electronic copy of an official charitable donation tax receipt showing the eligible amount of the Donations and containing prescribed information in accordance with the Regulations under the Income Tax Act.

4. Donations

4.1 The balance in your Community Account at any given time shall consist of the fair market value of all assets held in your Community Account at such time less the value at the relevant time of all Disbursements and Transfers made in accordance with Section 6 of this Agreement and less all amounts deducted under paragraph 4.4 of this Agreement prior thereto.

4.2 All Donations made to your Community Account shall be given to the Foundation by you or by the Person who made such Donations irrevocably and shall become the property of the Foundation and the Foundation will hold such Donations in its normal corporate capacity.

4.3 The Foundation may invest the assets held in the Community Account at the Foundation's sole and unfettered discretion and may retain assets received on a Transfer or from a Donor, in the Foundation's sole and unfettered discretion. Any income received or earned or gains realized from such investments shall be the Foundation's property and shall be applied to the Foundation's administrative costs, including its out-of-pocket costs, or shall be otherwise used by the Foundation for charitable purposes. Without limiting the generality of the foregoing, the Foundation shall not be obligated to invest any of the assets held in your Community Account in any particular manner to achieve any particular investment result and you and your Designated Advisor, on your own behalf and on behalf of your heirs, executors, representatives, administrators, successors and permitted assigns, release the Foundation from any claims you or they may have with respect to the investment of the funds in your Community Account and waive any claims that you or they may have in that regard. Assets whose purpose is to achieve a particular investment result may be held in a Charitable Investment Account outside the Community Account.

4.4 All administrative costs incurred by the Foundation in furtherance of obtaining, disbursing, transferring or otherwise handling Donations, Disbursements and/or Transfers and administering and/or investing funds associated to the Community Account, any relevant Giving Group Account and/or any relevant CHIMP Account may be deducted from the funds or other assets held in the Community Account, CHIMP Account or Giving Group Account, as the case may be. Without limiting the generality of the foregoing, the Foundation may deduct from the funds or other assets held in such Account reimbursements of amounts that it has paid and a reasonable fee for its services.

4.5 The governing principle underlying all investment and administrative policies relating to Accounts maintained by the Foundation is to protect the financial value of the assets in the Account and to provide liquidity such that recommendations with regard to Disbursements made by Users and Designated Advisors can be fulfilled on demand. The Foundation will notify the holder of the Account, the Designated Advisor, the Giving Group Administrator or the Community Account Administrator, as the case may be, if it intends to increase the fees or costs that are deducted from the Account over those outlined at chimp.net/fees.

4.6 Neither you nor any other Person may receive any tangible benefit or privilege in return for, or as a result of, making a Donation.

5. Designated Advisors

5.1 For each Community Account a Person, who may be the User, shall be designated as the Designated Advisor. The initial Designated Advisor shall be the User who creates the Community Account. The Community may also designate another Person as a Designated Advisor. The User or the Person so designated shall cease to be the Designated Advisor on his or her death, or on retiring and so advising the Foundation, and the User (where applicable and where the User is not the Designated Advisor) in writing.

5.2 The User, or the retiring Designated Advisor, as the case may be, may designate a replacement, by giving notice in writing to the Foundation and the User, where applicable.

5.3 A Designated Advisor who is not the User shall have the same rights and duties with respect to the CHIMP Account as if the Designated Advisor were the User. In particular, a Designated Advisor shall be entitled to receive information and have access and may make recommendations and give instructions to the Foundation, unless the User revokes the designation and advises the Foundation otherwise in writing. For greater certainty, a User may designate another Person to be a Designated Advisor and continue to be a Designated Advisor. In case of uncertainty, the Foundation may rely on and act on recommendations and/or instructions from the User rather than those of other Designated Advisors.

5.4 If a User dies and there is no Designated Advisor for the Account, the executors or other personal representatives of the User may act as the Designated Advisor. If at any time the Foundation reasonably believes there is no Designated Advisor for an Account and is unable, after reasonable efforts, to contact the User or the Designated Advisor who was last designated according to the Foundation's records, paragraph 16.1 of the CHIMP Account Agreement will apply.

6. Disbursements and Transfers

6.1 Funds or other assets may be Disbursed from a Community Account only to Qualified Recipients but can be Transferred to CHIMP Accounts, Giving Group Accounts or other Community Accounts. Funds or other assets can be Transferred from a CHIMP Account, a Giving Group Account or a Community Account to a Charitable Investment Account, but no recommendations may be made for Disbursements from a Charitable Investment Account. Funds or other assets may be Transferred from a Charitable Investment Account to a CHIMP Account or Community Account, from which Disbursements may be made.

6.2 A Designated Advisor may submit recommendations to us regarding Disbursements from your Community Account to Qualified Recipients and instructions regarding Transfers from your Community Account to CHIMP Accounts, Giving Group Accounts or other Community Accounts. However, while we will strictly follow instructions regarding Transfers, we retain ultimate discretion and authority to make or not make Disbursements and we will not be bound by any recommendations. If there is no CHIMP Account, Giving Group Account or Community Account to which the Transfer can be made, and if no such Account is opened within thirty (30) days of our receipt of the instructions for Transfer, we will leave the funds or other assets to the Account of the Transferor.

6.3 Community Account Administrators may submit to us recommendations regarding Disbursements from the Community Account to Qualified Recipients and may submit to us instructions regarding Transfers to CHIMP Accounts, Giving Group Accounts or Community Accounts. However, we retain ultimate discretion regarding Disbursements and we are not bound by any recommendations. If there is no CHIMP Account, Giving Group Account or other Community Account to which the Transfer can be made, and if no such Account is opened within thirty (30) days of our receipt of the instructions for Transfer, we will leave the funds or other assets in the account of the Transferor. Notwithstanding the definition of "Community Account Administrator", a Community Account Administrator may designate another Community Member to be a Community Account Administrator and at any time there may be more than one Community Administrator with whom the CHIMP Collective is authorized to deal with in respect to information relating to a particular Community Giving Program created by your Community.

6.4 We fully consider the recommendations made by Users. However, in order to comply with applicable legal requirements, the Foundation retains the final discretion and authority with regard to Disbursements. Disbursements from your Community Account shall be made at such times, in such amounts, in such ways and for such purposes as we may determine in our sole and unfettered discretion.

6.5 After any Disbursement or Transfer is made from your Community Account, an electronic record of such Disbursement or Transfer will be made available to you on the CHIMP System. Notwithstanding any other provisions of this Agreement, when a Transfer is made from one or more Accounts on the CHIMP System, the CHIMP Collective will have no obligation to ensure that the Account to which the Transfer has been made will recommend that the Foundation Disburse funds to a particular Qualified Recipient. When funds or other assets in a Community Account are applied to a Giving Group, campaign or to a movement, the Giving Group Administrator or other designated person dealing with the Giving Group Account will have total discretion and the CHIMP Collective will have no obligation to a particular campaign or movement. 

6.6 A User or Designated Advisor may give a Default Instruction or a Default Recommendation to the Foundation. If a Default Recommendation is in effect at the relevant time, the Foundation will take it into account in deciding when and how to make a Disbursement to a Qualified Recipient. If a Default Instruction is in effect at the relevant time, we will act in accordance with that instruction, subject to other provisions in this Section 6 and in particular paragraphs 6.2, 6.3, 6.4, and 6.5. 

6.7 Neither a User, nor any other Person may receive any tangible benefit or privilege in return for a Disbursement or Transfer from any Community Account, Giving Group Account or Community Account. No Disbursement or Transfer from any CHIMP Account, Giving Group Account or Community Account may be used to discharge or satisfy a legally enforceable obligation of any Person.

6.8 Upon the termination of your Community Account we will Disburse any funds or other assets remaining in your Community Account in our sole and unfettered discretion to one or more Qualified Recipients, which may include us, subject to any valid Default Recommendation.

7. Minimum Community Account Activity

7.1 The CHIMP Collective has a mandate to facilitate Donations for the good of the charitable sector and not simply for the issuance of Donation tax receipts. Consequently, while we plan to encourage Donations to the Foundation, we simultaneously will encourage CHIMP Accounts, Giving Group Accounts, and Community Accounts to Disburse funds or other assets to Qualified Recipients so they can be used for charitable programming and activities that advance causes and communities. In order to encourage Disbursements, if in any period of twelve (12) consecutive months the total Disbursements from your Community Account are less than five percent (5%) of the Donations and Transfers received in your Community Account in the same period or the average value of the net assets held in your Community Account at the end of each month during the previous twelve (12) consecutive months, whichever is greater, we may contact you to request (a "Disbursement Request") that you recommend a Disbursement (a "Minimum Disbursement") to one or more Qualified Recipients. A Minimum Disbursement means five percent (5%) of the greater of:

(a) the total of the Donations and Transfers received in your Community Account in the previous twelve (12) consecutive months less all Disbursements and Transfers made in that period; and

(b) the average of the value of the net assets held in your Community Account at the end of each month during the previous twelve (12) consecutive months less all Disbursements and Transfers made in that period.

7.2 In addition to CHIMP Collective's mandate described in paragraph 7.1, the Foundation has adopted policies to comply with applicable tax law and the disbursement quota requirements for public foundations in the Income Tax Act.

7.3 Transfers made to CHIMP Accounts, Giving Group Accounts or other Community Accounts during the relevant twelve (12) month period will be reflected in the Disbursement calculations of the destination Account. However, if it appears to the Foundation that Transfers are being made with the intention of avoiding Minimum Disbursement requirements, we retain the right to make Disbursement Requests at our discretion.

7.4 If you do not respond to our Disbursement Request within sixty (60) days, the Foundation may Disburse, in the Foundation's sole and unfettered discretion, the Minimum Disbursement from your Community Account to one or more Qualified Recipients, including the Foundation for its own use, subject to any valid Default Recommendation that is in effect.

7.5 Notwithstanding paragraph 7.1 of this Agreement, a Community Account must maintain a minimum activity level of at least one Disbursement for each period of twelve (12) consecutive months, starting with the second such period that ends after the creation of the Account, based on receipt of a recommendation contemplated in paragraph 6.2 of this Agreement. Failure to maintain a minimum activity level may result in termination of the Community Account.

7.6 The rights of the Foundation as set out in this Section 7 including, without limitation, the right to make a Disbursement Request and the right to make a Minimum Disbursement are at the sole and unfettered discretion of the Foundation. Exercise by the Foundation of any of its rights under this Section 9 shall not be construed to be a waiver of any other right contained in this Agreement. 

8. Giving Groups

8.1 We recognize that giving together as a group enables donors to better identify a specific cause they wish to support and to organize with a larger number of like-minded donors. We want to create and promote these opportunities through Giving Groups, campaigns, movements and other, more expanded means of collective giving.

8.2 Users may create Giving Groups using the CHIMP System and invite other Users, One-Time Donors, Communities and other Persons to become Giving Group Members. The creator of the Giving Group is by default the Giving Group Administrator and may designate another member of the Giving Group as an Administrator. Each Giving Group may have one or more Administrators.

8.3 Giving Groups may give instructions for Transfers and make recommendations for Disbursements of funds at the sole individual discretion of each Giving Group Administrator.

8.4 A Giving Group may participate in a particular movement, a particular campaign, or a particular expanded means of organizing Giving Groups, campaigns and movements, using the CHIMP System.

8.5 A Giving Group will have only one Giving Group Account, although records will be maintained by the CHIMP Collective for campaigns, movements and other, more expanded means of organizing Giving Groups.

8.6 The concepts outlined in and the terms relating to "Giving Group", "Giving Group Account", "Giving Group Administrator" and "Giving Group Member" in the CHIMP Account Agreement apply for purposes of this Agreement, as the context permits or requires.