(Last Modified: March 14, 2019)
This Entrepreneurship Seed Fund Donor Advised Fund Policy and Agreement (the “Agreement”) is entered into by and between Entrepreneurship Seed Fund, Inc., a Colorado nonprofit corporation (the “Sponsoring Organization”), with its principal place of business located at 17610 Shahara Road, Monument, Colorado 80132, and Donor (defined below) (the Sponsoring Organization and the Donor, together are referred to in this Agreement as the “Parties”). The Agreement shall be considered executed and accepted on the date on which Donor affirmatively indicates his or her acceptance of all of the terms and conditions of the Agreement, via the Sponsoring Organization’s Website (defined below).
The following definitions shall apply throughout the entirety of this Agreement:
- Account Homepage: The section of the Website that houses the Charitable Giving Fund information and allows Donor to interact with the Charitable Giving Fund, pay fees, make Donor Contributions, and make recommendations as to the Distribution of Fund Assets.
- Agent: Any third party that the Sponsoring Organization may use in collecting, processing, and collating Donor Contributions.
- Agreement: This Entrepreneurship Seed Fund Donor Advised Fund Policy and Agreement.
- Board: Appointed officers, directors and managers of the Sponsoring Organization who shall serve on the Board, review all Donor recommendations and designate Distributions.
- Charitable Giving Fund: The donor advised fund and account, known as the [Donor name] Giving Fund, located on the Website and over which the Sponsoring Organization has legal and actual ownership and control, which is specific to the Donor, to which the Donor may make contributions. The Donor may make recommendations regarding Distributions from the Charitable Giving Fund as more specifically provided in this Agreement.
- Charitable Organization(s): Charitable, educational, religious, or literary organizations which are organized and operated exclusively for those purposes, within the meaning of IRC § 170(c)(2)(B), and specifically selected by Entrepreneurship Seed Fund. Private foundations, individuals and disqualified supporting organizations are not considered Charitable Organizations eligible to receive Distributions of Fund Assets.
- Fund Asset(s): Assets, consisting of U.S. Dollars, which have been contributed to the Charitable Giving Fund by Donor.
- Distribution(s): Distribution(s) made from the Charitable Giving Fund to Charitable Organizations.
- Donor: The individual or entity, which has filled out and submitted a Donor Contribution Form and has chosen to establish a Charitable Giving Fund.
- Donor Contribution Form: The location on the Website in which Donor shall indicate the amount (in U.S. Dollars) to be contributed to the Charitable Giving Fund.
- Donor Contribution(s): The amount (in U.S. Dollars) that Donor has contributed to the Charitable Giving Fund and the amount which is allocated to the Charitable Giving Fund.
- Investments: Use of funds in the Charitable Giving Fund to purchase equities, short and long term debt instruments, cash, deposit accounts and other uses of funds of the Charitable Giving Fund pending Distributions.
- IRC: Internal Revenue Code of 1986, as amended from time to time.
- IRS: Internal Revenue Service.
- Parties: The Donor and the Sponsoring Organization.
- Sponsoring Organization: Entrepreneurship Seed Fund, Inc., a Colorado nonprofit corporation.
- Website: The website owned by the Sponsoring Organization, currently located at www.eseedfund.org at which Donor can make Donor Contributions to the Charitable Giving Fund.
- The Sponsoring Organization shall own and operate the Charitable Giving Fund, which is a donor advised fund as defined by IRC § 4966(d)(2).
- The Sponsoring Organization was organized for, and operates exclusively for, charitable purposes.
- The Charitable Giving Fund is titled [Donor name] Giving Fund and represented as such on the books and records of the Sponsoring Organization, and is held at the Sponsoring Organization’s bank.
- The Sponsoring Organization’s mission is to inspire and encourage a movement of generosity by providing a global platform to make charitable giving through the Internet easy and efficient.
- The Website provides a philanthropic marketplace so that donors from all over the world can easily connect and donate to supporting charitable causes that interest them.
- The Sponsoring Organization has selected various Charitable Organizations as possible recipients of its Charitable Giving Fund, which are listed on its Website so donors can easily connect with Charitable Organizations and causes that interest them.
- Donor wishes to establish a Charitable Giving Fund known as [Donor name] Giving Fund to hold Donor Contributions, at which point hereafter, all amounts in the Charitable Giving Fund shall be considered part of the Fund Assets, of which the Sponsoring Organization has sole legal and actual ownership and control.
- The Sponsoring Organization wishes to provide Donor, through its Website, with a non-binding, advisory right concerning Distributions. In consideration of the mutual promises hereinafter made and exchanged, and other good and valuable consideration, receipt of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
A. Donor Contributions
Donor may make an irrevocable Donor Contribution to the Charitable Giving Fund upon the acceptance of this Agreement, based on the information provided in the Donor Contribution Form, the terms and conditions of which are incorporated herein. Donor shall make all Donor Contributions electronically via the Website. Donor Contributions shall then become part of Fund Assets. The Sponsoring Organization reserves the right to have all Donor Contributions collected and processed by its Agent. All Donor Contributions shall be transferred to the Sponsoring Organization. All Donor Contributions shall be in the form of U.S. Dollars and irrevocable. After each Donor Contribution is processed, Donor will receive confirmation of its Donor Contribution before the due date for filing such return. Since the IRS requires taxpayers to substantiate charitable deductions they claim, Donor should keep these confirmations with tax records for the year in which contributions are made. Before claiming any tax deduction the Donor should confer with its tax advisors regarding applicable state and/or federal tax implications.
B. Control Over the Charitable Giving Fund and Fund Assets
The Sponsoring Organization shall own and control the Charitable Giving Fund and all Fund Assets. The Sponsoring Organization shall have all power and authority necessary to invest, reinvest, and manage the Fund Assets in accordance with the purposes of the Charitable Giving Fund, as described in Sections III and VI of this Agreement. The Sponsoring Organization may, in its discretion, elect a fund manager to manage the Charitable Giving Fund. All appreciation, interest or income earned from the investment of Fund Assets shall be the property of the Sponsoring Organization, over which it has complete legal control, and no such appreciation, interest, or income shall accrue to Donor’s Charitable Giving Fund.
Fund Assets shall be distributed by the Sponsoring Organization to the a Charitable Giving Fund or a Charitable Organization. Such Distribution shall, at all times, be within the discretion of the Sponsoring Organization and its Board. It is understood by the Parties that the Sponsoring Organization shall be entitled to withhold Distributions and retain all Fund Assets in any given fiscal or calendar year. Donor shall not be entitled, at any time, to any distributions from the Charitable Giving Fund, including income, interest, or principal. Once a Distribution is made by the Sponsoring Organization to a Charitable Giving Fund or a Charitable Organization, the funds constituting such Distribution shall no longer be subject to the rules, regulations, policies or control of the Sponsoring Organization, and the Sponsoring Organization, makes no representations or warranties that such funds, once in the control of the Charitable Organization, shall be implemented, applied or otherwise used in accordance with the Donor’s direction.
D. Donor Recommendations
- Right to Recommend. Donor shall be entitled to a non-binding and non-compulsory right to recommend to what Charitable Organization(s) its Charitable Giving Fund should be distributed. Donor shall be entitled to recommend Distributions only to Charitable Giving Fund. At all times the Sponsoring Organization shall be entitled to disregard any recommendation made by Donor. Donor understands that any recommendation shall be advisory only, will not be binding upon the Sponsoring Organization, and will not be the sole criteria used by the Sponsoring Organization in determining whether or not to make a Distribution.
- Method of Recommendation. If Donor wishes to make recommendations as to where the Fund Assets should be directed, it must do so through the Charitable Giving Fund and webpage. All recommendations must indicate the amount of the Donor Contribution recommended and to what Charitable Giving Fund it should be directed. Detailed instructions for filling out the necessary fields on the Account Homepage will be set out therein.
- Timing, Frequency and Amount of Recommendations. All recommendations by Donor may be ongoing or on an occasion-by-occasion basis. Donor shall be entitled to make as many recommendations as desired to the extent that Donor’s Charitable Giving Fund has sufficient funds. There is no maximum number of Distributions which a Donor may make from the Donor’s Charitable Giving Fund, but Entrepreneurship Seed Fund reserves the right to reserve disbursement of funds from the Charitable Giving Fund until the aggregate sum for distribution is twenty-five dollars ($25) or more, except in connection with closing a Charitable Giving Fund. The Sponsoring Organization shall notify Donor via e-mail when the Charitable Giving Fund has sufficient funds to make a Distribution and Donor may then specify which Charitable Giving Fund (s) are recommended for Distributions and in what amount(s). Donor may not make a recommendation for an amount greater than the balance in the Donor’s Charitable Giving Fund. In the event the amount of a recommendation exceeds the balance in the Donor’s Charitable Giving Fund, no part of the Distribution will be made, but instead, the Sponsoring Organization will notify the Donor and ask that the Donor either change the amount of the recommendation or add funds to the Charitable Giving Fund.
- Changing Recommendations. Donor shall be entitled to change recommendations at any time that Donor has an active Charitable Giving Fund. Recommendation changes must be made via the Sponsoring Organization’s Website and in accordance with the procedures set out therein.
- Evaluating Recommendations. The Sponsoring Organization shall be entitled to evaluate Donor recommendations according to the interests of the Sponsoring Organization in fulfilling its IRC § 501(c)(3) purpose. This includes, but is not limited to, ensuring that the Charitable Organizations have purpose(s) provided by IRC § 170(c)(2)(B), any Distribution complies with Sponsoring Organization’s policies and guidelines relating to the operation of its Charitable Giving Fund, and that the Charitable Organization is in compliance with the IRC and other applicable laws.
- Designation of Fund Assets. All Distributions of Fund Assets made by the Sponsoring Organization shall be made to a Charitable Organization as stated in Section I of this Agreement. All Charitable Organizations shall be charitable, educational, religious, or literary organizations and entities which are operated exclusively for such purposes within the meaning of IRC § 501(c)(3). Private foundations, individuals and disqualified supporting organizations are not eligible to receive Distributions of Fund Assets.
E. Charitable Giving Funds
- Establishing a Charitable Giving Fund. The Sponsoring Organization shall provide Donor with a Charitable Giving Fund upon Donor creating and account at ESeedFund.org and agreeing to this document and the site Terms and Conditions. The Charitable Giving Fund shall be populated by the information presented by Donor on the Website. The Charitable Giving Fund shall be accessed through the Account Homepage.
- Maintenance of the Charitable Giving Fund. Donor must provide its recommendations relating to the Charitable Organizations it wishes to support through the Sponsoring Organization’s Website. Donor shall be entitled to close the Charitable Giving Fund at any time through the instructions provided on the Website. Upon closure of the Charitable Giving Fund, Donor shall no longer have any right to provide recommendations under Section IV of this Agreement. All funds remaining in Donor’s Giving Fund will be owned by Sponsoring Organization and will continue to be held as Fund Assets and distributed in accordance with the terms of this Agreement and Sponsoring Organization’s policies and guidelines.
- Administrative Fees. The Sponsoring Organization will not charge an administrative fee for amounts deposited into Donor’s Charitable Giving Fund. Participation by Donor in establishing and operating Donor’s Charitable Giving Fund shall be without charge to Donor. Transaction costs charged by third parties in relation to the Donor’s contribution are factored into the Field Partner agreement. Notwithstanding the foregoing, in the event the Donor shall make a Donor Contribution by credit card payment, and the Donor subsequently cancels the Donor Contribution in the form of a permitted credit card payment, the Donor agrees and acknowledges that the Donor shall promptly pay in full any and all fees charged by a third party in connection with the cancellation of such Donor Contribution, including, but not limited to, fees or charges charged by a bank, credit card company or other similar third party relating to such cancellation.
- Reporting and Notification. Each Donor shall be entitled to notification upon Distribution from the Charitable Giving Fund where the Sponsoring Organization has made a Distribution from the Charitable Giving Fund. This notification shall be provided by electronic mail and/or shall be reflected on the Donor’s Charitable Giving Fund’s Account Homepage, as specified by the Charitable Giving Fund. This notification shall be sent within ten (10) days of Distribution. The Sponsoring Organization shall also provide any financial reports or information required by law, detailing the status of the Charitable Giving Fund. Though the Sponsoring Organization attempts to show all Contributions as quickly and accurately as possible in a Charitable Giving Fund on the Entrepreneurship Seed Fund Website, there may be a delay with some transactions.
- Lack of Activity. A Charitable Giving Fund may be deemed to be inactive if over the course of an eighteen (18) month period there has been no activity with respect to the Donor’s Charitable Giving Fund, which activity may include logging in, making contributions to the Charitable Giving Fund or making recommendations for Distributions. If a Charitable Giving Fund shall become inactive, as determined by the Sponsoring Organization pursuant to the foregoing standard, the Sponsoring Organization shall make reasonable efforts to contact the Donor via e-mail prior to the end of the eighteen (18) month period of inactivity in order to encourage the Donor to take some action with regard to the Donor’s Charitable Giving Fund. If the Donor does not respond and there remains no activity in the Charitable Giving Fund over the next one (1) month period, then the remaining balance in the Donor’s Charitable Giving Fund shall be distributed to the Sponsoring Organization to be used internally or distributed to another Charitable Giving Fund chosen by the Board, and such Charitable Giving Fund may be terminated pursuant to the terms and conditions of Paragraph VI of this Agreement.
This Agreement shall remain in effect until or unless terminated by either Party pursuant to this Section. The Sponsoring Organization may terminate this Agreement, with or without cause, at any time upon written notice to Donor. Donor may terminate this Agreement by closing its Charitable Giving Fund at any time. The Sponsoring Organization may terminate upon six (6) months’ notice to all donors. Upon termination of the Sponsoring Organization all Contributions shall be distributed to Charitable Organizations pursuant to the terms and conditions of the Sponsoring Organization’s governing documents and applicable law.
G. No Personal Use for Donors, the Sponsoring Organization, and Related Parties
No Distributions from the Charitable Giving Fund will be used to used to discharge or satisfy a legally enforceable charitable pledge or obligation of any person, or pay for goods or services of value received by Donor or advisor or Fund Manager or any member of the Sponsoring Organization’s Board or employee of the Sponsoring Organization or by any spouse or relative of any related party.
I. The Donor represents and warrants that:
- Donor is not establishing the Charitable Giving Fund nor contributing to the Charitable Giving Fund with any profit motive;
- Donor does not expect any distribution of interest, income or principal from the Charitable Giving Fund;
- All Donor Contributions are monetary contributions, and irrevocable and unrestricted;
- Donor has read, and understands and accepts the terms and conditions of this Agreement; and
- Donor will abide by all applicable federal and state laws, rules, and regulations, licenses or procedures pertaining to the subject matter of this Agreement, including but not limited to any tax reporting, compliance and disclosure rules, regulations and law.
J. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes any prior oral or written communication between the Parties, their affiliates, or agents.
K. Force Majeure
Neither Party shall be liable to the other Party for any delay or failure to perform which results from causes outside its reasonable control.
If any part of this Agreement shall be deemed invalid, such provision shall be deemed severed from this Agreement, and the remainder of this Agreement shall otherwise remain in full force and effect.
The Sponsoring Organization shall have the right to freely delegate duties and assign rights under this Agreement, including but not limited to reorganizing under a different charitable entity exempt under IRC § 501(c)(3); however, Donor shall have no right of delegation or assignment under this Agreement.
N. No Waiver
No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy.
Donor will indemnify and hold Sponsoring Organization harmless relating to any claims, causes of action, suits, losses, damages, costs and expenses (including without any limitation, all reasonable attorney fees) caused by or in connection with: (1) Donor’s breach of this Agreement; or (2) negligence or willful misconduct.
P. Limitation of Liability
In no event shall the Sponsoring Organization be liable for any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise relating to the subject matter of this Agreement.
Q. Waiver of Claims
Donor hereby irrevocably waives any claim he, she, or it may have against the Sponsoring Organization, its officers, directors, employees or agents based on any use, management, or distribution of donor contributions and Fund Assets, which assets donor understands no longer belongs to him at and after the time of contribution.
R. Compliance with IRC and Amendment
This Agreement it intended to comply with all aspects of the IRC and accompanying regulations concerning donor advised funds. Any provision of this Agreement not in compliance with such law shall be deemed invalid. The Sponsoring Organization shall be entitled to unilaterally amend this Agreement to comply with the IRC and accompanying regulations or for any other reason it deems appropriate. Since Donors are bound by those revisions, Donor should review this Agreement each time it makes a Donor Contribution to the Sponsoring Organization’s donor advised fund.
S. Governing Law
This Agreement shall be deemed to have been executed and delivered in the State of Colorado, and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by and construed in accordance with the laws of the State of Colorado. All disputes arising under this Agreement shall be resolved in the courts located in Colorado, and the Parties consent to the jurisdiction of such courts.