Effective January 2015
In these Terms, we refer to those raising funds as “Campaign Owners” and to their fundraising campaigns as “Campaigns.” We refer to those contributing funds as “Contributors” and to the funds they contribute as “Contributions.” We refer to those identified third party companies supporting Toy Backer as “Sponsors”. Campaign Owners, Contributors, Sponsors and other visitors to the Services are referred to collectively as”Users.”
ToyBacker is a Venue
ToyBacker is an online crowdfunding venue for people and entities seeking to raise funds for their own Campaigns and to contribute to the Campaigns of others. Campaign Owners can offer gifts or rewards in the form of tangible items or intangible services (collectively, “Perks or Rewards”) to Contributors. Perks are not offered for sale. Toy Backer makes no representations about the quality, safety, morality or legality of any Campaign, Perk or Reward or Contribution or the truth or accuracy of User Content (as defined below) posted on the Services. ToyBacker does not represent that Campaign Owners will deliver Perks or that Contributions will be used as described in the Campaign. Users use the Services at their own risk.
Eligibility to Use the Services
Users under 18 years of age are not eligible to use the Services without consent. Users between the ages of 13 and 17, can use the Services with the consent and supervision of a parent or legal guardian who is at least 18 years old, provided such parent or legal guardian also agrees to be bound by the Terms and agrees to be responsible for such use of the Services. Users suspended from using the Services are not eligible to use the Services. ToyBacker reserves the right to refuse use of the Services to anyone and to reject, cancel, interrupt, remove or suspend any Campaign, Contribution, or the Services at any time for any reason without liability.
Campaign Owners are not permitted to create a Campaign to raise funds for illegal activities, to cause harm to people or property, or to scam others. If the Campaign is claiming to do the impossible or it’s just plain phony, don’t post it. Users must comply with all applicable laws and regulations in connection with their Campaigns, including offering Perks and using Contributions. Campaign Owners shall not make any false or misleading statements in connection with their Campaigns.
Campaign Owners are not permitted to offer or provide any of the following as a Perk or Reward:
- Any form of “security” (as such term is defined in the Securities Act of 1933);
- Any form of financial incentive or participation in any profit sharing;
- Any alcoholic consumer products (vouchers or memberships offering physical delivery of alcoholic consumer products are permitted);
- any controlled substance or drug paraphernalia;
- any weapons, ammunition and related accessories;
- any form of lottery or gambling;
- any form of air transportation; or
- any form of pornography.
- any items promoting hate, discrimination, personal injury, death, damage, or destruction to property; or any items (a) prohibited by applicable law to possess or distribute, (b) that would violate applicable law if distributed, or (c) that would result in infringement or violation of another person’s rights if distributed.
Toy Backer Fees
- Fees are only chargeayments partners.
Only when a campaign is successfully funded will ToyBacker charge 4% of the Campaigns total funds collected. Some additional 3rd party fees will be incurred by our payment partners.
Creating an account on ToyBacker is free. If you create a project that is successfully funded, we (and our payment partners) collect fees. Our partners’ fees may vary from 2-3% depending on which payment service you chose and based on your location.
We will not collect any fees without giving you a chance to review and accept them. If our fees ever change, we’ll announce that on our Site. Payment providers collect funds pledged by backers. Each payment provider is its own company, and ToyBacker isn’t responsible for its performance.
You’re responsible for paying any additional fees or taxes associated with your use of ToyBacker
Campaign Owner Representation
When initially signing up with ToyBacker, each Campaign Owner shall be required to complete the Campaign Owner Participation form, with the option to participate as either a Tier 1 Campaign Owner or Tier 2 Campaign Owner as follows:
Tier 1 – provides the traditional option of crowdfunding, getting funded, rewarding contributors and ending of the Campaign; or
If a User seeks additional information on a particular Campaign Owner and/or Campaign for possible business negotiations, User shall first contact Toy Backer at email@example.com_ to discuss the Campaign Owner and/or Campaign. If the Campaign Owner is a Tier 2 participant, User shall be instructed that all subsequent discussions and correspondence regarding the Campaign Owner and/or Campaign shall be directed to ToyBacker, as representative of the Campaign Owner. If the Campaign Owner is a Tier 1 participant, User shall be instructed that User is permitted to contact the Campaign Owner directly on subsequent discussions and correspondence regarding the Campaign Owner and/or Campaign.
For both Tier 1 and Tier 2 Campaign Owners and Campaigns, User shall not directly or indirectly copy, reproduce, use, publish, disseminate, misuse, misappropriate, sell, assign, or otherwise transfer or disclose for itself or to any person, at any time any information that comes into its possession relating to information learned from the Toy Backer site or Campaigns.
Following Sponsor’s completion of the Sponsor Participation page, Sponsor’s name and brand logo (“Property”) shall be uploaded to the Toy Backer site. ToyBacker shall include Sponsor’s Property on the same website page(s) as those that depict other participating sponsors, with final determination of the size, ordering and placement of the Sponsor’s Property in relation to others sponsors’ property to be at the sole discretion of ToyBacker. Sponsor permits ToyBacker to feature Sponsor’s Property on the ToyBacker website as a participating sponsor, as well in and/or on ToyBacker press, publicity and related marketing materials. Sponsor grants Toy Backer the non-exclusive, worldwide right to use the Property for sponsorship and related promotional purposes. ToyBacker shall be permitted to incorporate the Property on the ToyBacker site and related press, publicity and marketing materials for a period equal to one year (1) longer than the expiration of the Sponsor term.
ToyBacker is not a place for hatred, abuse, discrimination, disrespect, profanity, meanness, harassment, or spam. Do not:
- use the Services to promote violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity;
- post images or videos that are sexually explicit or post links to sites that contain sexually explicit material or show people or animals being hurt or degraded;
- spam the comments sections or other Users with offers of goods and services or inappropriate messages;
- engage in any activity that interferes with or disrupts the proper working of the Services or any activities conducted on the Services; or
- take any action that imposes, in Toy Backer sole discretion, an unreasonable load on Toy Backer infrastructure.
ToyBacker reserves the right to remove Campaigns and terminate User Accounts for such activities.
Disputes between Campaign Owners and Contributors
Campaign Owners are legally bound to perform on any promise and/or commitment to Contributors (including delivering any Perks). If a Campaign Owner is unable to perform on any promise and/or commitment to Contributors, the Campaign Owner will work with the Contributors to reach a mutually satisfactory resolution, which may include the issuance of a refund of Contributions by the Campaign Owner. ToyBacker is under no obligation to become involved in disputes between Campaign Owners and Contributors, or Users and any third party. In the event of any dispute, such as a Campaign Owner’s alleged failure to comply with the Terms or alleged failure in fulfillment of a Perk, we may provide the Campaign Owner’s contact information to the Contributor so that the two parties may resolve their dispute.
All information submitted in connection with a User account on the Services (each, a “User Account”) must be accurate and truthful. Users agree to notify ToyBacker immediately if their User Account has been used without authorization or there has been any other breach of security of the User Account. Each User also agrees to provide additional information ToyBacker may reasonably request and to answer truthfully and completely any questions ToyBacker might ask you in order to verify such User’s identity.
License to Users
ToyBacker grants each User a limited, non-exclusive, non-transferable, revocable license to use the Services subject to such User’s eligibility and continued compliance with the Terms.
Campaign Owners are permitted to offer Perks to Contributors. Campaign Owners are legally bound to perform on any promise and/or commitment to Contributors (including delivering any Perks). Campaign Owners will respond promptly and truthfully to all questions posed to them by ToyBacker or any Contributor. If any Campaign Owner is unable to fulfill any of its commitments to Contributors (including delivering any Perks), the Campaign Owner will work with the Contributors to reach a mutually satisfactory resolution, which may include refunding their Contributions. Campaign Owners will comply with all applicable laws and regulations in the use of Contributions and delivery of Perks. Campaign Owners are responsible for collecting and remitting any taxes on Contributions, and any taxes due in connection with Perks. ToyBacker may attempt to verify the identity and other information provided to us by Campaign Owners, and we may delay, withhold, reverse or refund any Contributions or other amounts without notice or liability in the event we are unable to verify any such information to our satisfaction.
Contributors are solely responsible for asking questions and investigating Campaign Owners and Campaigns to the extent they feel is necessary before making a Contribution. All Contributions are made voluntarily and at the sole discretion and risk of the Contributor. ToyBacker does not guarantee that Contributions will be used as promised, that Campaign Owners will deliver Rewards or Perks, or that the Campaign will achieve its goals. ToyBacker does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality or legality of any Campaign, Perk or Contribution, or the truth or accuracy of User Content posted on the Services. Contributors are solely responsible for determining how to treat their Contributions and receipt of any Perks for tax purposes. If a Contribution is returned to a Contributor, the associated Reward or Perks, if any, shall be canceled.
Setting up an account on the Services is free. We do not charge our Service fees to Contributors. Unless otherwise indicated on the Services, we do charge our Service fees to Campaign Owners as a portion of the Contributions they raise (the “Service Fees”). By using the Services Users agree to our Service Fees listed here Pricing and Fees for Service Changes to Service Fees are effective after we post notice of the changes on the Services. Updated Service Fees are applied to Campaigns launched after the notice is posted.
Contributions, including the Service Fees portion thereof, are not refundable. If a Campaign Owner is unable to perform on any promise and/or commitment to Contributors (including delivering any Reward /Perks), the Campaign Owner will work with the Contributors to reach a mutually satisfactory resolution, which may include the issuance of a refund of Contributions by the Campaign Owner.
Taxing authorities may classify funds raised on the Services as taxable income to the Campaign Owner and any beneficiary who will receive funds directly from the applicable Campaign. Toy Backer will ask for the tax identification number (TIN) of Campaign Owners and any beneficiaries so that we may report taxable income to the relevant taxing authorities. ToyBacker will provide Campaign Owners with a tax document if required by the relevant taxing authorities.
Users may establish Campaigns on ToyBacker Life (the “Life Services”), provided that: (a) an individual person acts as the sole Campaign Owner (a “Life Campaign Owner”); and (b) such Life Campaign seeks Contributions for any cause that directly impacts the Life Campaign Owner or any other individual person (a “Life Campaign Beneficiary”), such as Contributions for medical costs, emergencies, tuition or other similar life events of the Life Campaign Owner or Life Beneficiary, as applicable. In connection with Life Campaigns established on behalf of any Life Campaign Beneficiary, each Life Campaign Owner acknowledges and understands that Toy Backer may request such additional information as reasonably necessary (as determined in the sole discretion of Toy Backer) in order to verify or confirm that the Life Campaign Owner is authorized on behalf of the applicable Life Campaign Beneficiary in connection with the applicable Life Campaign.
Users may create a “Partner Page” on ToyBacker website to link their brand with one or more Campaigns. If Users create a Partner Page, Users also agree to the Partner Terms.
While using the Services, Users may post photos, videos, text, graphics, logos artwork and other audio or visual materials (collectively, “User Content”). Users grant ToyBacker a perpetual, non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, publicly display, publicly perform, store, reproduce, modify, create derivative works, and distribute User Content of any User on or in connection with the Services and our related marketing and promotional activities. As between Users and ToyBacker, Users continue to hold all ownership interest in their User Content. Each User represents and warrants that its User Content and our use of such User Content will not infringe any third party’s intellectual property rights, including patents, copyrights and trademarks, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these Terms, any other intellectual property or proprietary rights, or any other applicable law.
Campaign Owners may not offer any contest, competition, giveaway, sweepstakes or similar activity (each, a “Promotion”) on the Services without ToyBacker prior written permission (which may be granted or withheld by ToyBacker in its sole and absolute discretion).
Campaign Owners may request permission from ToyBacker by sending an email to firstname.lastname@example.org Subject to and upon any such permission, each Campaign Owner offering any Promotion further acknowledges and agrees that: (a) such Campaign Owner shall be solely responsible for all facets of each such Promotion; (b) such Promotion does not require any Contribution or other payment of any amount as the sole method of entry into such Promotion; and (c) the official rules for such Promotion shall include clear and conspicuous language to the effect that: (i) Toy Backer does not sponsor, endorse or administer the Promotion; (ii) each participant or entrant in the Promotion releases Toy Backer from any and all liability; and (iii) all questions concerning the Promotion must be directed to the Campaign Owner and not to Toy Backer.
Third-Party Websites, Advertisers or Services
If a Campaign Owner’s Campaign is based in the United States and raises over $100,000 in U.S. dollars through credit card transactions, such a Campaign Owner is a “Sub-merchant” under our Merchant Services Agreement with Pay Pal, Services Agreement for Sub-merchants. Campaigner Owners that accept PayPal and Contributors that use PayPal in connection with a Campaign acknowledge and agree to comply with PayPal’s Crowdfunding and Acceptable Use Policies. In all cases, standard credit card or other third party processing fees apply in addition to any Service Fees. We are not responsible for the performance of any third party credit card processing or third party payment services.
Each User agrees to defend, indemnify and hold harmless ToyBacker, its subsidiaries and affiliated companies, and their officers, directors, employees, contractors and agents from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees and costs) and all amounts paid in settlement arising from or relating to use of the Services, breach of these Terms or violation of any laws, rules or regulations, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. ToyBacker may assume the exclusive defense and control of any matter for which Users have agreed to indemnify Toy Backer and each User agrees to assist and cooperate with ToyBacker in the defense or settlement of any such matters.
ToyBacker has no fiduciary duty to any User. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. USE OF THE SERVICES IS AT USER’S OWN RISK.
Waiver and Release
For Users in a jurisdiction that requires a specific statement regarding waiver and release then the following applies. For example, California residents must, as a condition of this Agreement, waive the applicability of California Civil Code Section 1542 for unknown claims which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Each User hereby waives this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release.
Limitation of Obligations
ToyBacker has no obligation to display User information to any other User. Toy Backer is not responsible for doing diligence on the Users met through ToyBacker. ToyBacker does not recommend to any Contributor any contribution or endorse a Campaign Owner’s fitness for receipt of contribution, verify the information on the Site or in our emails, nor does ToyBacker claim any of that information is accurate. ToyBacker has no obligation to maintain the confidentiality of any User provided content. ToyBacker has no obligation to monitor or enforce any intellectual property rights that may be associated with User provided content, but ToyBacker does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on User’s behalf.
Limitation of Liability
TOYBACKER (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS OR LICENSORS) IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR, IN ANY EVENT, FOR DAMAGES EXCEEDING THE LESSER OF ONE HUNDRED U.S. DOLLARS ($100.00) OR THE FEES PAID TO TOY BACKER FOR THE TRANSACTION FROM WHICH THE CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ITOYBACKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
For jurisdictions that do not allow ToyBacker to limit its liability: Notwithstanding any provision of the Terms, for Users in a jurisdiction that has provisions specific to waiver or liability that conflict with the foregoing, then Toy Backer liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, ToyBacker does not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation or intentional misconduct; or (c) any liability which it is not lawful to exclude either now or in the future.
The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by any User, but may be assigned by ToyBacker without restriction or consent.
Termination may result in the forfeiture and destruction of all information associated with any User Account. Users may terminate their User Account by following the instructions on the Services, but ToyBacker may retain the User Account information after termination in accordance with regulatory, accounting, and legal compliance procedures. All provisions of the Terms that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Users agree that: (a) the Services shall be deemed solely based in New York (the principal place of business and corporate headquarters of ToyBacker); and (b) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over ToyBacker, either specific or general, in jurisdictions other than New York State. This Agreement shall be governed by the laws of the State of New York without respect to its conflict of laws principles.
Campaign Owners and other Users should be aware that many states impose charitable fund solicitation laws to guide direct or indirect fund solicitation activities in those states. While provisions vary state to state, these state laws typically include registration and reporting requirements. ToyBacker merely provides a technology platform to allow Campaign Owners to connect with Contributors. Users who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law.
ToyBacker makes no representations, warranties or other assertions as to the potential tax deductible status of any Contribution by a Contributor to a charitable cause or to a Campaign whose purported recipient is a recognized 501(c)(3) or other tax -advantaged organization under the Internal Revenue Code. The listing of an organization via the Services does not necessarily mean that the organization has been deemed— or remains currently deemed—a charitable or tax-advantaged organization by the Internal Revenue Service.
In the event of a conflict between these the English language version of the Terms and any foreign language translation versions thereof, the English language version of the Terms shall govern and control. All disputes, claims and causes of action (and related proceedings) will be communicated in English. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the U.S.
Users agree to comply with all laws, restrictions and regulations relating to the export of products and information. For purposes of the U.S. Export Administration Act (“Export Laws”), each User states that such User is: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving such products and information. Funds may be frozen and/or turned over to the applicable governmental enforcement agency if a Campaign is deemed to be in violation of Export Laws.
Cooperation with Authorities and Police Enforcement
We will cooperate with law enforcement authorities as required by law. We will cooperate with law enforcement agencies in any investigation of alleged illegal activity regarding the use of the Services when requested.
Users agree ToyBacker may provide notifications to such User via email, written or hard copy notice, or through conspicuous posting of such notice on our website. Users may opt out of certain means of notification or to receive certain notifications.
Unsolicited Idea Submissions
Consistent with our culture of open innovation, we are always happy to hear from our user community and welcome comments or suggestions to improve the Services. However, to avoid future misunderstandings when new products, services and features developed internally by ToyBacker might be similar or even identical to a submission received by ToyBacker, the following policy applies to all third party User submissions to ToyBacker of ideas, comments, suggestions, proposals or materials: (a) all submissions shall be considered non-confidential and non-proprietary; (b) ToyBacker will have no obligation concerning the submission, contractual or otherwise (including, without limitation, confidentiality); (c) ToyBacker will not be liable for any use or disclosure of any submission; and (d) ToyBacker shall be entitled to unrestricted use of the submission for any purpose whatsoever, commercial or otherwise, without compensation to the third party submitting User.
These Terms are the entire agreement between each User and ToyBacker regarding its subject matter. If any provision of these Terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Toy Backer failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Changes to Terms
ToyBacker may alter the Terms at any time, so please review them frequently as they may be updated from time to time. If a material change is made, ToyBacker may notify Users in the Services, by email, by means of a notice on the Services, or other places we think appropriate. A “material change” will be determined at ToyBacker sole discretion, in good faith, and using common sense and reasonable judgment.