Last updated: October 12, 2020
Welcome to Givz. By accessing the Service (as defined below), or by checking or selecting an “I agree” or similarly worded box or button indicating your acceptance of these Terms of Service, you agree to be bound by these Terms of Service, which constitute your agreement with Givz Inc., a Delaware corporation. The Givz websites and mobile applications, together with any services, software, or materials provided by us through or in connection with such websites or applications, are collectively referred to in these Terms of Service as the “Service.” References to “we,” “us,” and “our” refer to Givz Inc. If you are entering into this agreement on behalf of a company or other entity, you represent that you have the authority to, and do hereby, bind such entity to this agreement, and references to “you” or “your” will refer to such entity. If you do not have such authority, or if you do not agree with the terms of this agreement, you must not accept this agreement and neither you nor such entity may use the Service.
These Terms apply with respect to Givz business clients. These Terms do not apply to your use of Givz websites or mobile applications in your capacity as a donor making donations to charities on your own behalf. If you will use the Givz websites or mobile applications in this regard, you must agree to the separate User Agreement presented to you when you sign up or donate.
THE SERVICE IS OFFERED FROM THE UNITED STATES OF AMERICA AND IS NOT CURRENTLY OFFERED TO PERSONS IN THE EUROPEAN UNION OR ITS MEMBER STATES (THE “EU”). IF YOU ARE RESIDING IN THE EU, YOU MAY NOT USE THE SERVICE.
1. Provision of the Service.
1.1 Provision. We hereby grant you a non-exclusive, non transferable, non-sublicensable, limited license, during the term of these Terms, to use the Service in accordance with these Terms and the Documentation. We will use commercially reasonable efforts to make the Service available for use by you in accordance with these Terms. For purposes of these terms, “Documentation” means the Givz user guides, acceptable use policies, pricing or fee schedules, and other information and materials describing or otherwise related to the Service, all as may be modified by us from time to time and made available by us to you through the Service or otherwise.
1.2 Access. A unique username and password will be provided to you in order for you to access the Service in accordance with these Terms. We may change or update such username and password in our sole discretion from time to time. You (i) are responsible for maintaining the confidentiality of your username and password; (ii) are solely responsible for all acts that occur under your username and account; and (iii) will notify us promptly of any actual or suspected unauthorized use of your username, password or account, or any other breach or suspected breach of these Terms. We reserve the right to suspend or terminate access to the Service via any username or password that we believe may have been used by an unauthorized third party. If you are an individual: (i) you represent that you are old enough to form a legally binding contract; and (ii) you may not access or use the Service unless you are at least 18 years old.
1.3 Donors. Use of the Givz websites or mobile applications by any of your customers or potential customers (each, a “Donor”) (for example, in order to make or allocate charitable donations) is subject to the Donor’s acceptance of and agreement to such User Agreement or other agreement required by us, as modified by us from time to time (“Donor User Agreement”). We may contact Donors to obtain such acceptance of and agreement to the Donor User Agreement. When you use the Service to permit your Donors to allocate charitable donations, we may collect and use the information provided by Donors via the Service in accordance with the Donor User Agreement, both during and after the term of these Terms.
1.4 Updates. We reserve the right to update, upgrade, or otherwise modify the Service at any time. If any such modification causes a material decrease in the functionality of the Service being provided to you, we will use commercially reasonable efforts to provide you with forty-five (45) days advance notice of such modification unless such modification is for security or maintenance purposes or is required by applicable law. If we provide any software components as part of the Service (such as a mobile application), you acknowledge that you must install such software (and any updates thereto provided by us) in order to use the Service, and you will promptly install any such updates as directed by us.
1.5 Suspension. We may suspend provision of the Service for security or maintenance purposes or to comply with applicable law, at any time and with or without notice. We will use commercially reasonable efforts to give you prior notice of any suspension and to minimize the duration of any such suspension.
2. Use of the Service.
2.1 Limitations. You will not, and will not permit any third party to: (i) permit any person or entity to access the Service except your representatives acting on your behalf in accordance with these Terms; (ii) access or use the Service except in accordance with these Terms, the Documentation and applicable law; (iii) modify, adapt, alter, copy, translate or create derivative works of the Service; (iv) reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Service or any systems or software used in connection with the provision of the Service; (v) sell, resell, license, distribute, rent, lease, transfer or transmit the Service, or include the Service in a service bureau or outsourcing offering; (vi) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (vii) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of third party privacy or other rights; (viii) access the Service in order to build a competitive product or service; (ix) interfere with or disrupt the integrity or performance of the Service or any systems or software; (x) attempt to gain unauthorized access to the Service or any systems or software; or (xi) conduct or perform any load, penetration, vulnerability or security testing or similar operations with respect to the Service. Provision of the Service may be suspended during any time when we believe your use of the Service does not comply with these Terms, and we will give you prompt notice of the suspension and the reason therefor.
2.2 License. In order for us to provide the Service, you hereby grant us a nonexclusive, worldwide, royalty-free, and fully paid license to access, use, display, perform, reproduce and distribute Your Content. For the limited purpose of providing the Service pursuant to these Terms, we may provide Your Content to our third party service providers (for example, a hosting provider), provided such third party is subject to restrictions concerning usage and disclosure of such content that are no less restrictive than these Terms. After any termination or expiration of these Terms, we and our third party service providers may keep a copy of Your Content as necessary to maintain an archival record of donations and otherwise as may be required to comply with applicable law. For purposes of these Terms, “Your Content” means any data, information, services, products or other content provided, conducted or otherwise made available by you or your representatives through or in connection with the Service.
2.3 Identification as Client. During and after the term of these Terms: (i) we may identify you as our client, which identification may include the use of your name and logo provided that such use is in accordance with your standard trademark usage policies as provided by you; (ii) we may create a case study identifying you by name and highlighting the results of your use of the Service; and (iii) upon our reasonable request, you will share with us the performance metrics of such use as measured against historical data, and provide us with a quote regarding such results; and (iv) we may use such case study and such quote in our public marketing materials.
2.4 Making Donations. When you use the Service to permit your Donors to allocate charitable donations, you will timely remit to us the aggregate dollar amount of all such donations in the time and manner described in the applicable pricing or fee schedule or other applicable Documentation. We are not required to pay or otherwise transfer such allocated donation amounts to charities until you have remitted such amount to us. You hereby authorize us and our third-party payment service providers to collect such amount using the credit card or other payment information you provide to us. In the unlikely event that we are unable to pay transfer an allocated donation amount to the charity to which such amount was allocated, we will pay transfer such amount to the most similar charity to which we can pay transfer such amount, as determined by us in our discretion.
3. Fees and Payment.
3.1 Fees. You will pay us the applicable fees listed on our Pricing Schedule and on any other pricing or fee schedule made available by us and agreed to by you via the Service or otherwise in writing (as modified in accordance with these Terms, the “Fees”). We may change the Fees upon forty-five (45) days advance notice, and your continued use of the Service after such notice period will constitute your acceptance of such changed Fees.
3.2 Payment Methods and Invoicing. If requested by us through the Service or otherwise, you will provide us with your credit card information, ACH payment information, or other payment information for the purpose of paying amounts due hereunder. You must keep such provided payment information current at all times. Any change to such payment information will not affect charges we submit before we reasonably could act on the change. All Fees and any other applicable charges hereunder are due and payable as set forth in the applicable pricing or fee schedule, or, if not so set forth, then within thirty (30) days after the date of the applicable invoice. You hereby authorize us and our third-party payment service providers to collect such amounts using the credit card or other payment information you provide to us, beginning on the earlier of the date such amounts are due or presentation of the applicable invoice. All amounts payable by you under these Terms are payable in U.S. Dollars.
3.3 Timely Payment. If you fail to make payments when due under these Terms, we may suspend provision of the Service until payment is received and may charge you a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law. We may use a third party to collect past due amounts. You will pay us for the costs we incur to collect any past due amounts from you, including reasonable attorneys’ fees.
3.4 Taxes. Fees do not include any taxes, levies, duties, export or import fees, or other governmental assessments of any nature (including value-added, sales, use or withholding taxes) imposed or assessed by any jurisdiction (collectively, “Taxes”). You are responsible for the payment of all Taxes associated with Fees payable or your use of the Service (other than Taxes assessable against us based on our income). If we have a legal obligation to pay or collect Taxes for which you are responsible hereunder, we will invoice you and you will pay us that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Term and Termination.
4.1 General. The term of these Terms will begin on the Effective Date and continue until these Terms or your subscription to the Service expires or is terminated by either party as provided herein. Either party may terminate these Terms or your subscription to the Service by giving the other party thirty (30) days advance written notice of such termination. In addition, these Terms may be terminated by either party if the other party is in material breach of these Terms and the breach is not cured within ten (10) days after written notice of the breach is received by such other party. Termination or expiration of these Terms will automatically terminate your subscription to the Service. For purposes of these Terms, “Effective Date” means the date these Terms are first agreed to by you (whether by accessing or using the Service, by checking a box indicating your acceptance of these Terms, or otherwise).
4.2 Survival. Sections 4 (Term and Termination), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Indemnification), 8 (No Implied Warranties), 9 (Limitation of Liability), and 10 (General Provisions) will survive termination or expiration of these Terms, together with any payment obligations accrued prior to termination and any other provisions which by their plain meaning are intended to survive.
5. Proprietary Rights.
5.1 The Service. Notwithstanding any other provision of these Terms, we (or our licensors) are the sole owner of the Service and the systems and software used to provide the Service, and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered). You will not acquire any rights in the foregoing other than as expressly set forth herein. You will not copy, transmit, transfer, modify or create derivative works of the foregoing, and will not reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the foregoing. All goodwill arising out of use of our trade names, trademarks, service marks, and logos will inure to our benefit.
5.2 Your Content. Notwithstanding any other provision of these Terms, you (or your licensors) are the sole owner of Your Content, and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered). We will not acquire any rights in Your Content other than as expressly set forth herein. All goodwill arising out of use of your trade names, trademarks, service marks, and logos will inure to your benefit.
5.3 Usage Data. We collect information and data on how the Service is used by clients, Donors, and other users (“Usage Data”). We may use the Usage Data for our internal business purposes, and share the Usage Data with third parties in an anonymous and aggregated form.
6. Confidentiality. Each party (the “Receiving Party”) may have access to the information of the other party (the “Disclosing Party”), which will be deemed confidential information if identified as such by the Disclosing Party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans, Personal Information, and any information which provides a competitive advantage. All non-public aspects of the Service are deemed our confidential information. The Receiving Party will use the same degree of care as it uses with respect to its own confidential information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the Disclosing Party’s confidential information other than as necessary to carry out these Terms, and (b) prevent disclosure of such information other than to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose. Materials containing confidential information will remain the property of the Disclosing Party and, subject to the other provisions of these Terms, will be returned or (along with all copies) destroyed upon request. Information will not be deemed confidential information if it: (i) is not Personal Information and is or becomes generally known to the public through no fault of the Receiving Party, its affiliates or their agents or representatives; (ii) is or becomes known to the Receiving Party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s confidential information. Confidential information may be disclosed to the extent required by applicable law, provided the Disclosing Party is given reasonable advance notice of such disclosure. For purposes hereof, “Personal Information” means any personally identifiable information, nonpublic personal information, or information relating to an identified or identifiable natural person, where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
7. Indemnification. You will indemnify, defend and hold harmless us and our affiliates, officers, directors, employees, agents and licensors from and against all claims, damages, liabilities, losses, penalties, fines and expenses (including without limitation reasonable attorneys’ fees) arising out of or incurred in connection with any claim by any third party (including any governmental or regulatory authority or instrumentality) if such claim is due to or arises out of Your Content, your use of the Service, or your actual or alleged breach or violation of these Terms, applicable law or the rights of any third party.
8. No Implied Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WE AND OUR AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION), REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER SHALL NOT EXCEED THE FEES PAID BY YOU HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY.
10. General Provisions.
10.1 Governing Law and Venue. These Terms shall be construed and interpreted in accordance with the laws of the State of New York, without regard to that state’s conflict of laws principles. Any proceeding relating to these Terms or the subject matter hereof or the relationship of the parties shall be brought only in federal or state court in the County of New York, New York, and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.
10.2 Injunctive Relief. Either party may seek to enforce its rights hereunder with respect to the protection of its confidential information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security.
10.3 Individual Actions Only. You and we agree that each of us may bring claims or actions against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Class actions, private attorney general actions, and consolidation with other claims or actions are not permitted.
10.4 Export Compliance. You will not export, reexport or transfer, directly or indirectly, any technical data or materials acquired from us, or any products utilizing such data or materials, in violation of United States export laws or regulations.
10.5 Notices. All notices and other communications given or made pursuant to these Terms will be in writing and will be deemed effectively given upon the earliest of (i) actual receipt, (ii) personal delivery to the recipient, or (iii) any of the following if addressed to the recipient as set forth below: (a) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. For purposes hereof, our address and email address will be as set forth on the Service, and your address and email address will be as provided by you during registration or onboarding with the Service, as such contact information may be subsequently modified by the recipient by written notice given in accordance with this paragraph. We may provide notices to you electronically via the Service, in which case such notice will be deemed given when sent, if sent during normal business hours, and if not sent during normal business hours, then on the next business day.
10.6 Entire Agreement; No Waiver. With respect to their subject matter, these Terms represent the entire agreement between you and us, and supersede all prior agreements and representations. The failure of a party to require performance by the other party of any provision hereof will in no way affect the right of the party thereafter to enforce same against the other party, nor will waiver by either party of a breach of any provision hereof by the other party be taken or be held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
10.7 Amendment. We may amend these Terms at any time by posting the modified Terms on the Service. The modifications will be effective upon such posting (unless a later date is specified in the posting, in which case that date will be the effective date of the modifications). You agree to review these Terms periodically so that you are aware of any modifications. Your continued use of the Service after such modifications constitutes your acknowledgment of, and agreement to be bound by, the amended Terms.
10.8 Independent Contractor. Nothing in these Terms will create a joint venture, partnership or employment relationship between the parties or their employees or contractors, or between either party and any Donor.
10.9 Interpretation. These Terms will be construed as a whole, according to their fair meaning, and not in favor of or against any party. Headings are used for reference purposes only and should be ignored in the interpretation of these Terms. Whenever the words “include,” “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation”.
10.10 Severability. Any provision of these Terms which is held invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and without rendering invalid or unenforceable the remaining provisions of these Terms or affecting the validity or enforceability of any of the provisions of these Terms in any other jurisdiction. If any provision of these Terms is so broad as to be unenforceable, the provision will be interpreted to be only so broad as is enforceable.
10.11 Assignment. Except as expressly stated otherwise herein, neither party may assign or otherwise transfer (whether by operation of law, merger, consolidation, change of control or otherwise) these Terms or any rights or obligations hereunder without the written consent of the other party, except that we may, without such consent, assign or transfer these Terms to a purchaser of all or substantially all of our assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. Any assignment or transfer, or attempted assignment or transfer, in violation of these Terms is void ab initio. These Terms are binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
10.12 No Third Party Beneficiaries. Except as may be otherwise expressly set forth herein, these Terms are not intended to, and shall not, confer any rights or remedies upon anyone other than the parties hereto.
10.13 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond such party’s reasonable control, including weather, fire, floods, labor disputes, riots or civil disturbances, acts of government, and acts of war or terrorism.