Last updated: April 2022

Givewith Software Terms of Use

Subject to complying with these Terms of Use, Givewith may provide you with secure access to and use of the Givewith Software. These Terms of Use are between Givewith LLC (“Givewith,” “we,” or “us”) and the party downloading, accessing, or using the Givewith Software (“you” or “your”) (with respect to these Terms of Use, each a “Party” and collectively the “Parties”). All references to “you” or “your,” as applicable, mean the person downloading, accessing, or using the Givewith Software. If you download, access, or use the Givewith Software on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of these Terms of Use will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.

PLEASE READ THESE TERMS OF USE CAREFULLY. THEY CREATE LEGAL OBLIGATIONS FOR YOU AND FOR US. BY ACCESSING OR OTHERWISE USING THE GIVEWITH SOFTWARE, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS OF USE, YOU MAY NOT USE THE GIVEWITH SOFTWARE.

SECTION 1. DEFINITIONS.

Defined terms have the meanings set out below and elsewhere in these Terms of Use. Other capitalized terms are defined in the context in which they are used.

1.1.Term” means the effective duration of these Terms of Use which shall commence on the date you first access the Givewith Software and shall continue through the last date that you access the Givewith Software, which, unless terminated in accordance with the below, will be either monthly or annually depending on the Subscription option that you choose.

1.2.Effective Date” means the date that you initially access the Givewith Software.

1.3.Estimated Social Impact” means the estimated social impact on the community based on the value of the applicable Social Impact Funds for a SIO Program, expressed by Givewith in the form of metrics provided by the participating SIO activating and/or managing the SIO Program.

1.4.Transaction” means a transaction that involves the Givewith Software and that, consequently, generates financial support for an SIO in the Givewith Social Impact Network.

1.5.Fees” has the meaning set forth in Section 3 below.

1.6.Givewith Social Impact Network” means Givewith’s network of SIOs that are featured in the Givewith Software.

1.7.Givewith Software” means Givewith’s unique and proprietary software as a service (SaaS) that includes (i) a secure web-based application for end users, and (ii) an application programming interface (API) for cloud-based data and system integrations.

1.8.SIO” means a Social Impact Organization, including a nonprofit, charitable, social enterprise, social impact organization, or other organization, which may offer programs that have a substantial component dedicated to providing a positive social impact.

1.9. “SIO Program(s)” means participating SIOs’ programs that are designed to create positive social impact for people or the planet, and that are offered via the Givewith Software.

1.10.Privacy Policy” means Givewith’s Privacy Policy, which can be accessed at https://givewith.com/privacy-policy.

1.11.Services” means the applicable services that Givewith may provide to its subscribers and customers, including but not limited to: (i) SIO vetting services; (ii) SIO funding services; (iii) SIO Program coordination services; (iv) impact measurement and reporting services, and (v) continued access to the Givewith Software.

1.12.Social Impact Funds” means funding provided to a participating SIO via the Givewith Software, which is used to fund a SIO Program.

1.13.Terms of Use” means these Terms of Use and the Privacy Policy.

1.14.Your Data” means all data provided by or on behalf of you to Givewith in connection with the Givewith Software or its components to enable the provision of the Services, which may include your profile information, transaction information, and other data that you provide to us via the Givewith Software. Notwithstanding the foregoing, any and all data you provide to Givewith’s payment processor (Stripe, Inc.) shall not be considered Your Data for purposes of these Terms of Use and shall be subject to the terms and conditions made available by such payment processor, as further described in Section 2.6 (Third Party Sites and Materials).

SECTION 2. GRANT OF RIGHTS; OWNERSHIP.

2.1. License to the Givewith Software. Givewith hereby grants you, during the Term, a non-exclusive, revocable, non-assignable, non-sublicensable, non-transferable license to access and use the Givewith Software, and to permit your employees (with their own unique security credentials, based either upon unique login username and password for the Givewith Software per user, or authentication performed by your enterprise Single Sign On (“SSO”) integration) to access and use the Givewith Software, in accordance with and solely for the purposes permitted under these Terms of Use. To the extent applicable: (i) you shall be limited to cloud-based access to an instance of the Givewith Software that resides on servers controlled by Givewith; (ii) the access shall be via a browser approved by Givewith; and (iii) the Givewith Software shall in all respects be the version generally made available by Givewith to its customers. You may not use the Givewith Software in ways that are not authorized by these Terms of Use.

2.2. License Limitations.

2.2.1. Limitations on Your Use. You expressly shall not: (i) use the Givewith Software to act as a service bureau or otherwise permit unauthorized third parties to obtain Services under these Terms of Use; (ii) attempt (or encourage or support anyone else’s attempt) to circumvent, decompile, reverse engineer, decrypt, or otherwise alter or interfere with the Givewith Software, or any content thereof, or make any unauthorized use thereof; (iii) access any part of the Givewith Software you do not have permission or authorization to access or for which Givewith has revoked your access; (iv) use robots, spiders, scripts, service, software or any manual or automatic device, tool, or process designed to data mine or scrape the content, or data from the Givewith Software, or otherwise access or collect the content, or data from the Givewith Software using automated means; (v) use services, software or any manual or automatic device, tool, or process designed to circumvent any restriction, condition, or technological measure that controls access to the Givewith Software in any way, including overriding any security feature or bypassing or circumventing any access controls or use limits of the Givewith Software; (vi) cache or archive the content or data (except where explicitly allowed by Givewith via stated robots.txt policy); (vii) take action that imposes an unreasonable or disproportionately large load on Givewith’s network or infrastructure; (viii) do anything that could disable, damage or change the functioning or appearance of the Givewith Software; (ix) post or send to the Givewith Software any content or uploads that contains a virus, worm, trojan horse or other harmful item; or (x) use the Givewith Software for purposes of building a competitive product or service.

2.2.2. Limited Use of Givewith Software Content. You agree that you will not download, display or use any content made available to you via the Givewith Software (e.g., images, copy, videos, etc.) for use in any publications, in public performances, or on websites for any other commercial purpose, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Givewith and/or Givewith’s licensors or that otherwise infringes Givewith or Givewith’s licensors’ intellectual property rights.

2.3. Ownership; Assignment.

2.3.1. As between the Parties, except with respect to Your Data, Givewith is and shall remain the sole owner of all right, title and interest in and to: (i) the Givewith Software and its components (including the Services and all proprietary advertising, media, business methods, proprietary content, information, material, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, video, music, and other content utilized in connection with the Givewith Software (collectively, the “Givewith Technology”)); (ii) any enhancements, improvements, or modifications thereto; and (iii) any intellectual property rights embodied in the foregoing.

2.3.2. Similarly, except as expressly provided in this Section 2 (Grant of Rights; Ownership), as between the Parties, you are and shall remain the sole owner of all right, title, and interest in and to Your Data. For all Your Data that you submit to Givewith, you grant Givewith and its affiliates a worldwide, royalty-free, sublicensable, and transferable license to host, store, cache, use, reproduce, modify, adapt, edit, analyze, and transmit that data. This license is for the purpose of operating, developing, providing, and improving the Givewith Software and Services and researching and developing new ones.

2.3.3. If any right, title or interest in any of the Givewith Technology does become vested in you for any reason, you hereby irrevocably and unconditionally assign the same (including all copyright and other intellectual property rights) to Givewith, with full title guarantee, by way of present assignment of existing and future rights, such assignment to be for the duration of those rights (including all renewals, extensions, reversions and revivals thereof), and you also hereby waive any related so-called “moral rights” and also consent to any dealing in any of the foregoing whether by Givewith or with its authority.

2.4. Feedback. The term “Feedback” means suggestions, ideas, feature requests, and recommendations by you relating to the Givewith Software or its components, or other elements of Givewith’s business, whether volunteered or otherwise. Givewith neither seeks nor requests such Feedback, and these Terms of Use place no obligations on you to provide Givewith with Feedback. To the extent you choose to provide Feedback to Givewith, you hereby transfer to Givewith your rights in the Feedback (including intellectual property rights).

2.5. No Implied Rights. Unless otherwise agreed to in writing between the Parties, nothing in these Terms of Use shall be construed to grant either Party any rights other than those expressly provided herein. Any rights granted to a Party under these Terms of Use must be expressly provided herein, and there shall be no implied rights pursuant to these Terms of Use, based on any course of conduct or other construction or interpretation thereof. All rights and licenses not expressly granted herein are reserved.

2.6. Third Party Sites and Materials. Certain content, components or features of the Givewith Software may include materials from third parties and/or hyperlinks to other websites, resources, or content (such as Givewith’s payment processor). Because Givewith may have no control over such third-party sites and/or materials, you acknowledge and agree that Givewith is not responsible for the availability of such sites or resources and does not endorse or warrant the accuracy of any such sites or resources and shall in no way be liable or responsible for any content, advertising, products, or materials on or available from such sites or resources. If you use any third-party materials or services made available through our Services (including Services we jointly offer with the third party such as payment processing services offered by Stripe, Inc.), each party’s terms will govern the respective party’s relationship with you. You further acknowledge and agree that Givewith shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such content, advertising, products or materials on or available from such sites or resources.

2.7. Account Use and Access. You are solely responsible and liable for any activities that occur on your account. If you suspect or become aware of any unauthorized use of your account, please contact us immediately at assist@givewith.com. If you create user accounts directly in the Givewith Software, then upon creating your password, you agree that you are responsible for keeping your password confidential and secure, and you further acknowledge and agree not to share your account and/or password details with anyone. If you utilize enterprise SSO, then you are responsible for the security and integrity of your SSO Identity Provider (IdP), as well as the accuracy of the user identity information.

SECTION 3. FEES AND PAYMENTS.

In consideration for Givewith providing you with access to the Givewith Software and Services, you shall pay to Givewith the subscription and services fees as set forth below (collectively, the “Fees”). Givewith reserves the right to modify and amend the amount of its Fees; provided, however, that Givewith will give you at least thirty (30) days prior written notice of any change in Fees and provided further that any such change will only apply as of the start of the month/year, as applicable, following your receipt of such notice.

3.1. Subscription Fees. You shall pay a monthly or an annual subscription fee (the “Subscription Fee”), to be selected by you as part of your onboarding process. You hereby authorize Givewith (or its designee) to automatically charge your credit/debit card or process an ACH transaction (at your option) for all applicable Subscription Fees owed as follows: (a) for a monthly subscription, on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month), or (b) for an annual subscription, on each anniversary of the date that you elected the annual Subscription Fee option, as applicable.

3.2. Social Impact Funds. You will be given the option of choosing between three different methods for funding Social Impact Funds: (a) pre-funding a selected dollar amount prior to choosing a particular SIO Program for funding (the “Pre-Funding Method”), (b) pre-funding a selected dollar amount prior to choosing a particular SIO Program for funding and providing for an automatic refill/replenishing of a set dollar amount when your pre-funded account falls below a certain threshold (the “Automatic Replenishing Method”), or (c) funding the applicable Social Impact Funds concurrent with choosing a particular SIO Program (the “Pay-As-You-Go Method”). You hereby authorize Givewith (or its designee) to automatically charge your credit/debit card or process an ACH transaction (at your option) for the applicable Social Impact Funds based on your selected method.

3.3 Givewith Services Fees. Once the Social Impact Funds are received by Givewith as provided in Section 3.2 above, said funds shall be allocated and paid as follows: (a) eighty-two percent (82%) of the Social Impact Funds shall be paid by Givewith to the specific SIO selected by you, and (b) eighteen percent (18%) shall be retained by Givewith as its services fees (the “Givewith Services Fee”).

SECTION 4. CONFIDENTIALITY.

4.1. Scope. “Confidential Information” includes Your Data that is non-public provided to Givewith.

4.2. Use of Confidential Information. Givewith shall not use or disclose any of your Confidential Information except as expressly permitted under these Terms of Use. Givewith shall protect your Confidential Information with the same level of care it uses for its own Confidential Information of like nature. Givewith shall be entitled to disclose your Confidential Information to its employees and the employees of its affiliates under these Terms of Use (collectively, “Authorized Individuals”); provided that each such Authorized Individual(s) (i) has a need to know the Confidential Information for the purposes of these Terms of Use, and (ii) has been apprised of and agrees to the restrictions in these Terms of Use.

4.3. Exceptions. Givewith’s obligations of confidentiality and non-use shall not apply where Givewith shows that the information (that would otherwise qualify as Confidential Information): (i) is, or after the Effective Date becomes, publicly available or part of the public domain through no wrongful act, fault, or negligence on the part of Givewith; (ii) was in the possession of Givewith at the time of Givewith’s receipt of the Confidential Information, and was not otherwise subject to an existing agreement of confidentiality; (iii) is received from a third party without restriction and without breach of any obligation of confidentiality to you; or (iv) was independently developed by Givewith without reliance on your Confidential Information.

4.4. Compelled Disclosure. Nothing herein shall prevent Givewith from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency, or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, however, that prior to any such disclosure, Givewith shall use reasonable efforts to (i) promptly notify you in writing of such requirement to disclose and (ii) reasonably cooperate with you, at your expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.

SECTION 5. SECURITY AND PROCESSING.

5.1. Security. Givewith has implemented and will maintain commercially reasonable information security policies and safeguards which include physical, organizational, and technical measures designed to (i) preserve the security, integrity, and confidentiality of Your Data, and (ii) to protect against information security threats. Givewith may update such security policies and safeguards from time to time provided that any such update does not materially reduce the overall level of security or commitments provided to you.

5.2. Processing. You represent and warrant that you have all rights, permissions, and consents necessary to: (a) submit all Your Data to the Givewith Software; and (b) grant Givewith the limited rights to process Your Data for the provision of the Services. You hereby grant Givewith a worldwide, non-exclusive, non-transferable, right to use and otherwise process Your Data under these Terms of Use only: (x) as required by applicable law; (y) as requested by you in writing or as allowed by you via a Service’s access controls; and (z) as necessary to provide the Services and prevent or address technical problems with the Services or violations of these Terms of Use. Givewith’s limited right to process Your Data hereunder will not excuse any obligation of Givewith relating to Your Data under these Terms of Use. Givewith agrees to use reasonable efforts to maintain, safeguard, and not use or disclose Your Data except as needed to facilitate your use of the Givewith Software, facilitate payment, track usage, address security, fraud prevention and data integrity requirements, respond to requests of government authorities, perform aggregated and anonymous analytics, and otherwise to perform Services under these Terms of Use.

5.3. Acceptable Use Policy. You shall not use the Givewith Software (i) in a way prohibited by applicable law; (ii) to violate the legal rights of others; (iii) to attempt to gain or to gain unauthorized access to or disrupt any third party service, device, data, account or network; (iv) to distribute spam or malware; (v) in a way that could materially harm the functionality or performance of the Givewith Software; (vi) to seek to obtain access to, or distribute, any portion of, or content on, the Givewith Software through any means not intentionally made available through the Givewith Software; (vii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without prior written authorization; or (viii) create more than one account for yourself, create another account if we have already disabled your account, attempt to access the Services through unauthorized third-party applications, solicit login credentials from other users, or buy, sell, rent, or lease access to your account, a username, Snaps, or a friend link. Unless otherwise expressly set out herein, you may not accumulate or index, directly or indirectly, any content on, or portion of, the Givewith Software for any purpose whatsoever. If we (in our sole discretion) determine that you have acted in contravention of these Terms of Use, we reserve the right to, among other things, take down Your Data, terminate your account, prohibit you from using the Givewith Software and terminate all licenses granted to you hereunder, and/or take appropriate legal action.

5.4. Analytics. Givewith shall be entitled to collect, compile, analyze and otherwise use and exploit (i) statistical data related to the use of the Givewith Software, and (ii) other data that qualifies as De-Identified Data (collectively “Givewith Analytics”) for the purposes of security investigations, product and feature performance, technical optimization, and system troubleshooting. The term “De-Identified Data” means information that meets each of the following criteria: the information (i) does not identify a particular natural person; (ii) does not identify, by network internet protocol address, raw hardware serial number, or raw MAC address, a particular device or computer associated with or used by a person; and (iii) is not reasonably linkable to a particular natural person due to technical, legal, or other controls. De-identified data in the Givewith Software is affixed with a unique machine-generated ID that correlates the sequence of requests and events generated by user or system interaction. No compensation will be paid by Givewith with respect to its use of the Givewith Analytics.

SECTION 6. PERSONAL INFORMATION.

6.1. Limitation on Personal Information. Unless otherwise agreed to in writing between the Parties or as necessary for the provision of Services, neither Party shall provide the other with any of its clients’, customers’, or employees’ personal information, which information may include, without limitation, information (i) that identifies or can be used to identify, contact, or locate the person to whom such information pertains, or (ii) from which identification or contact information of an individual person can be derived, including but not limited to their social security number or other government-issued identifier, location-based information, date or place of birth, mother’s maiden name, personal address, personal email address, personal mobile or other personal telephone numbers, other contact information, financial account information, driver’s license or non-driver identification card information, passwords, biometrics, device identification number, IP address, personal identification number or code, account information, or any other information or data that can be used for identity theft (collectively, “Personal Information”).

SECTION 7. REPRESENTATIONS AND WARRANTIES.

7.1. General Representations and Warranties. Each Party represents and warrants to the other as follows, effective as of the Effective Date:

7.1.1. Such Party is duly organized, validly existing and in good standing, and is qualified or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under these Terms of Use;

7.1.2. Such Party’s performance under these Terms of Use will not violate or constitute a default under any agreement of such Party;

7.1.3. Such Party has full legal authority to perform its obligations under these Terms of Use, and to consummate the transactions contemplated herein;

7.1.4. The performance by such Party of its obligations hereunder, have been duly and validly authorized by such Party, no other legal action by such Party being necessary; and

7.1.5. These Terms of Use constitute the legal, valid, and binding obligation of such Party enforceable against it in accordance with its terms, except as such enforcement may be limited or otherwise affected by (i) general principles of equity, whether applied by a court of law or equity; and (ii) applicable bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance, moratorium and other similar laws affecting the rights and remedies of creditors generally.

7.2. Your Additional Representations and Warranties. You represent and warrant to Givewith that: (i) if you are accessing the Givewith Software in your capacity as an employee or other representative of an entity, you have the authority to abide by these Terms of Use in connection with your accessing the Givewith Software, and (ii) you do and shall continue throughout the Term to comply with the acceptable use policy set out in Section 5.3 (Acceptable Use Policy).

7.3. Givewith Disclaimer of Warranties. EXCEPT AS SPECIFIED IN SECTION 7.1 (General Representations and Warranties), THE GIVEWITH SOFTWARE AND ALL GIVEWITH SERVICES AND PERFORMANCE OBLIGATIONS ARE PROVIDED STRICTLY “AS-IS,” AND GIVEWITH DISCLAIMS AND MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE GIVEWITH SOFTWARE, THE SITE, AND SERVICES, OR ANY MATTER WHATSOEVER, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UPTIME, PERFORMANCE LEVELS, OR THE USE OF, OR RELIANCE ON, THE GIVEWITH SOFTWARE OR ANY GIVEWITH SERVICES. GIVEWITH DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS THAT THE SERVICES OR GIVEWITH SOFTWARE (A) WILL HAVE ANY PARTICULAR BUSINESS RESULT, INCLUDING ANY COST SAVINGS, PROFIT IMPROVEMENT, IMPROVEMENT OF YOUR SOCIAL IMPACT RATING, OR OTHER IMPROVED BUSINESS RESULTS, (B) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

SECTION 8. INDEMNIFICATION.

8.1. Givewith Indemnification. Givewith shall indemnify, defend and hold you harmless from all third-party claims, legal actions, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of claims that the Givewith Software violates a third party’s intellectual property rights (each, a “Givewith-Related Claim”). Givewith shall be entitled, at its option, to modify the Givewith Software to resolve such Givewith-Related Claims. The foregoing states the entire liability of Givewith, and your exclusive remedy, with respect to actual or alleged violation of third-party intellectual property rights by the Givewith Software or other performance by Givewith under these Terms of Use.

8.2. Your Indemnification. You shall indemnify, defend and hold Givewith harmless from all third party claims, legal actions, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of (i) claims that Your Data violates a third party’s intellectual property rights, and (ii) your use of the Givewith Software or its components is in violation of these Terms of Use (each, a “Subscriber-Related Claim”) and further agrees to indemnify Givewith for damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such Subscriber-Related Claim.

8.3. Conditions. The indemnifying Party’s obligations hereunder are conditioned on (i) the Party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party’s expense), and (ii) the indemnifying Party having sole control and authority to defend, settle or compromise such claim. The indemnified Party may participate in the defense at its sole cost and expense. The indemnifying Party will not enter into any settlement that adversely affects the indemnified Party’s rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying Party shall not be responsible for any settlement it does not approve in writing.

SECTION 9. LIMITATION ON REMEDIES.

9.1. Consequential Damages Waiver. IN NO EVENT SHALL EITHER PARTY, INCLUDING SUCH PARTIES’ AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSEES, CLIENTS, SUCCESSORS, TRANSFEREES AND ASSIGNS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, GOODWILL, OR OTHER ECONOMIC LOSS, IN CONNECTION WITH THESE TERMS OF USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

9.2. Limitation of Liability. UNLESS OTHERWISE AGREED TO IN WRITING BETWEEN THE PARTIES, EXCEPT FOR: (i) EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET OUT IN SECTION 9 (Indemnification);(ii) ANY CLAIM FOR LOSSES RESULTING FROM (A) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (iii) A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY, IN TORT, CONTRACT, OR OTHERWISE, SHALL EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID BY YOU UNDER THESE TERMS OF USE, OR (B) IF LESS THAN 12 MONTHS HAVE ELAPSED, THE ANNUALIZED AMOUNT OF FEES PAID BY YOU UNDER THESE TERMS OF USE. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. The rights and remedies set out in this Agreement allocate the risks between the Parties under these Terms of Use and the Fees reflect the allocation of risks.

SECTION 10. TERMINATION.

10.1. Termination or Modification of Certain Givewith Software Components. Givewith reserves the right to modify the Givewith Software at any time and for any reason, with or without notice to you. Such modification may include, by way of limited example, removing, revising, or replacing SIOs, SIO Programs, etc. We may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time, provided, however, that Givewith will give you at least thirty (30) days prior written notice of any change in fees, and provided further that any such change will only apply as of the start of the month/year, as applicable, following your receipt of such notice, unless you opt to terminate your subscription.

10.2. Termination of Subscription and Access by Givewith. Givewith may terminate your access to the Givewith Software:

10.2.1. for material breach by you of these Terms of Use, which breach is not cured within thirty (30) days from the receipt by you of a written notice from Givewith specifying the breach in detail; and

10.2.2. immediately, in Givewith’s sole discretion, if at any time during the Term you (or any of your employees, officers, or other representatives) engage(s) in unethical or otherwise deceptive or misleading practices, and which, in Givewith’s reasonable determination, may materially and adversely affect Givewith’s or any SIO’s reputation. Such practices include any criminal behavior, discriminatory behavior, or any other acts which violate widely held principles of public morality or decency (and any accusations of the foregoing).

10.3. Termination of Subscription and Access by You. You may terminate your access to the Givewith Software for convenience in your discretion by providing Givewith with at least ten (10) business days prior written notice of such termination to assist@givewith.com. In such case, you shall not be liable for any future Fees; provided however, you shall not be entitled to a refund of any Fees previously due or paid by you except as provided in Section 10.5 below.

10.4. Termination of Access for Client Non-Payment; Bankruptcy. Givewith may terminate or suspend your access to the Givewith Software:

10.4.1. if you do not timely pay Fees (access will be suspended until such time as Fees are fully paid);

10.4.2. if either you make any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of your property, or you seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against you and is not dismissed within ninety (90) days, or you become insolvent or, without a successor, dissolve, liquidate or otherwise fail to operate in the ordinary course.

10.5. Effect of Termination or Expiration.

10.5.1. Cessation of Services; Certain Licenses. Upon termination or expiration of these Terms of Use, Givewith shall cease providing access to the Givewith Software and all Services to you.

10.5.2. Refund of Unused Social Impact Funds. Solely in the case of your termination of your subscription for convenience, you shall be entitled to a full refund of any unused Social Impact Funds in your account not previously designated for a specific SIO or SIO Program.

10.5.3. No Effect on Prior Obligations. Expiration or termination of these Terms of Use shall not affect any obligation which accrued prior to such expiration or termination, or that survives any termination or expiration pursuant to these Terms of Use, and you shall promptly remit to Givewith all accrued and unpaid Fees according to these Terms of Use.

10.5.4. Survival of Terms. The provisions of these Terms of Use that either expressly or by their nature extend beyond the expiration or termination of these Terms of Use shall survive such expiration or termination.

SECTION 11. GENERAL PROVISIONS.

11.1. Dispute Resolution; Mandatory Arbitration.

11.1.1. Direction Discussions; Mediation. If any controversy or claim arising out of or relating to these Terms of Use, or the breach of any term hereof, cannot be settled through direct discussions, the Parties agree to endeavor first to settle the controversy or claim by confidential mediation conducted in Austin, Texas and administered by JAMS under its Streamlined Arbitration Rules and Procedures (the “JAMS Streamlined Rules”).

11.1.2. Binding Arbitration. Other than a claim related to intellectual property (each, an “IP Dispute”), if a controversy or claim is not otherwise resolved through direct discussions or mediation, it shall be resolved by confidential arbitration conducted in Austin, Texas, and administered by JAMS in accordance with the JAMS Streamlined Rules.

11.1.3. Enforcement; Jurisdiction; Arbitration Remedies. Any judgment upon the award rendered by the arbitrator may be entered in any state or federal court that has requisite subject matter jurisdiction and that sits in the judicial district that includes Austin, Texas, and the Parties agree to submit to the in personam jurisdiction of such courts for purposes of confirming any such award and entering judgment thereon. The arbitrator shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a disputed matter, subject to any waivers of such remedies made by any Party in these Terms of Use. The Parties hereto waive any and all objections that they may have as to jurisdiction or venue in any of the above courts. In addition, the Parties agree to the waiver of a jury trial

11.2. Governing Law; Exclusive Jurisdiction for IP Claims. These Terms of Use shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Texas, without regard to its conflict or choice of laws principles. IP Disputes shall be subject to the exclusive jurisdiction of and venue in the state or federal courts located in Austin, Texas.

11.3. Attorneys’ Fees; Arbitration Costs. The prevailing Party in any dispute shall be entitled to recover expenses, including reasonable outside attorneys’ fees and any arbitration costs.

11.4. Relationship of the Parties. Givewith provides the Services under these Terms of Use solely as an independent contractor. No employer-employee or agency relationship exists between the Parties.

11.5. Waiver. A waiver by either Party of any covenant or breach shall not be construed to be a waiver of any subsequent breach or of any other covenant. No delay or omission by either Party to exercise any right or power it has under these Terms of Use will impair or be construed as a waiver of such right or power.

11.6. Headings. Headings used in these Terms of Use are for reference purposes only and in no way define, limit, or construe the scope or extent of such section or in any way otherwise affect the terms of these Terms of Use.

11.7. Cumulative Rights. All rights and remedies in these Terms of Use shall be cumulative and none of them shall be in limitation of any other rights or remedies of either Party.

11.8. Severability. If a provision of these Terms of Use is deemed illegal, invalid, or unenforceable by a court of competent jurisdiction, then such illegality, invalidity, or unenforceability shall not render these Terms of Use unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or a court decision. These Terms of Use shall be construed in all other respects with such change or interpretation, or otherwise with such provision omitted.

11.9. Force Majeure. Neither Party shall be liable to the other Party for any damages resulting from a failure of performance due to a force majeure event beyond the reasonable control of and not resulting from the fault or negligence of the affected Party. If the affected Party’s obligations become impossible because of a force majeure event that exceeds or is reasonably certain to exceed thirty (30) calendar days, either Party may terminate these Terms of Use upon notice or both Parties may agree to delay performance pending removal of the force majeure event.

11.11. Changes to Terms of Use. From time to time, we may change these Terms of Use for our business purposes and to comply with changes in applicable law. In the event of any substantive or material changes, we will communicate these changes to you by posting the updated Terms of Use in the Givewith Software and/or notifying you of the change via email, or other methods. Your continued use of the Givewith Software constitutes your agreement to follow and be bound by the updated Terms of Use.

11.12. California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

11.13. Contact. If you have any questions, please contact us. You may contact us, for any reason, at: legal@givewith.com.

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