Last updated: April 2022
SECTION 1. DEFINITIONS.
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.
1.11. “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.
SECTION 2. GRANT OF RIGHTS; OWNERSHIP.
2.2. License Limitations.
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.
2.6. 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 firstname.lastname@example.org. 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.
4.3. 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.
5.4. 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:
7.1.4. 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
7.3. 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.
8.3. 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.
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:
10.2.2. 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 email@example.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.
10.5.2. 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.
SECTION 11. GENERAL PROVISIONS.
11.1. Dispute Resolution; Mandatory Arbitration.
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.
11.3. 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.
11.12. 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: firstname.lastname@example.org.