- Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Authorized Person” means any person, whether or not an officer or employee of Nonprofit, authorized by Nonprofit to access the Services.
“Confidential Information” means all written or oral information, disclosed by one Party ( “Disclosing Party” ) to the other Party ( “Receiving Party” ), related to the business, products, services, or operations of the Disclosing Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including inventions, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, designs and techniques, and information regarding products, marketing, business plans, budgets, financial statements, contracts, prices, suppliers and agents. Confidential Information includes the features and functionality of the Platform (both current and planned). A Party’s Intellectual Property shall be considered Confidential Information.
“Data Protection Laws” mean all applicable privacy, data protection or similar laws and regulations anywhere in the World, as the same may be amended from time to time, including to the extent applicable to this Agreement, the EU General Data Protection Regulation ( “GDPR” ) (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016), and any applicable implementing legislation or any amendment thereto.
“Give Lively Marks” means the Give Lively and Small Token word marks, stylized logos, service marks, and any other trademark, and any other Give Lively trade name, trademark, service mark, logo, or other designation of origin associated with Give Lively products or services, whether or not registered.
“Intellectual Property” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, whether or not registered, including all registrations and related applications, and all goodwill, associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; (iv) all know-how, trade secrets, Confidential Information, and other proprietary rights and information; (v) all other rights covering intangible property recognized in any jurisdiction.
“Nonprofit Marks” means any Nonprofit trade name, trademark, service mark, logo, or other designation of origin associated with Nonprofit’s products or services.
“Personal Data” means the personal data (as defined in the Data Protection Laws) which is processed from time to time by the parties in connection with this Agreement. The terms controller, processor, data subject , and processing (and related expressions) shall have the meanings given to them in the Data Protection Laws.
“Platform” means Give Lively online platform, including but not limited to www.givelively.org, give.smalltoken.org, and other websites or mobile applications, any related source code, object code, assets, algorithms, application programming interface, related documentation, and including any updates, new versions, improvements, enhancements, additions, and modifications.
“Services” means any products and services offered by Give Lively through its Platform, including but not limited to the ability for a user to make, and for Nonprofit to receive, donations and other charitable gifts through the Platform, whether directly or indirectly (e.g. through the text-to-donate feature).
“Work Product” means any tangible and intangible property created, written, developed, conceived, designed or made, in connection with this Agreement or the Services.
- Feature. As part of the provisions of the Services, Nonprofit agrees that Give Lively may (in its discretion) feature, white-label, or otherwise spotlight ( “Feature” ) Nonprofit in one or more portions of the Platform, social media, advertising or other channels. Nonprofit understands that Give Lively is under no obligation to Feature Nonprofit, and this Agreement in no way makes any promises, commitments or guarantees as to whether Nonprofit will be Featured. Nonprofit further agrees that Featuring Nonprofit on the Platform does not constitute a solicitation of donations, and that Give Lively does not engage in any solicitation activities on behalf of any of the organizations that may be listed or Featured on the Platform.
- Modifications. Nonprofit acknowledges and agrees that (i) Give Lively may (in its discretion) update or modify the Services and the Platform at any time for any reason, (ii) Give Lively shall have no obligation to customize, modify, or improve the Services or Platform, and (iii) the Services and Platform may be interrupted for maintenance and developments when deemed appropriate by Give Lively.
- Amendments to the Agreement. Nonprofit acknowledges and agrees that Give Lively may revise and update this Agreement from time to time in its discretion, and that all changes are effective immediately when posted and apply to all access to and use of the Platform thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Platform. Nonprofit’s continued use of the Platform following the posting of revised Agreement means that Nonprofit accepts the changes. You are encouraged to review the terms of this Agreement frequently to ensure compliance.
- Nonprofit’s Obligations. Nonprofit shall cooperate in the performance of the Services, including but not limited to providing information and materials, as reasonably requested by Give Lively. Give Lively shall not be responsible for any delays, damages, or expenses directly caused by the inaccuracy of such information or materials, and/or by acts or omissions of Nonprofit or Authorized Persons.
- Taxes. Each Party will be responsible for any real or personal property taxes, assessments or levies on property it owns, or that it otherwise has a responsibility to report and remit; any franchise and privilege taxes on its business; any taxes based on its net or gross income or gross receipts; and any taxes arising from the employment or independent contractor relationship between such Party and its personnel or contractors. Notwithstanding the foregoing, Nonprofit shall indemnify and hold harmless Give Lively for any costs and expenses arising from inaccurate or misrepresented information provided by Nonprofit in relation to its tax status, including but not limited to any claim or adjustment asserted by a tax authority.
Privacy and Data Protection.
- The parties acknowledge and agree that each party is a controller of the Personal Data which it processes pursuant to this Agreement.
- Each party shall: (a) comply with (i) the provisions of any Data Protection Laws, to the extent applicable to this Agreement, and (ii) to the extent Give Lively shares or otherwise transfers Personal Data subject to the GDPR to the Nonprofit, the Standard Contractual Clauses for controllers as approved by the European Commission under Decision 2004/915/EC, attached hereto as Exhibit A; (b) provide all privacy notices to, and obtain any necessary consents from, data subjects, which are required to be provided and obtained under Data Protection Laws to allow the parties to lawfully process the Personal Data as required and permitted under this Agreement; (c) ensure that there is a lawful justification under Data Protection Laws for the party’s respective processing of Personal Data in accordance with this Agreement; and (d) provide reasonable assistance to the other party to the extent reasonably required for the other party to respond to any requests made by data subjects under Data Protection Laws and/or communications from data protection regulators in accordance with Data Protection Laws.
Intellectual Property Rights.
- Ownership. Give Lively has and will retain all right, title, and interest in and to the Platform, the Services, the Give Lively Marks, Give Lively Confidential Information, Intellectual Property, and any Work Product (collectively, “Give Lively Property” ). Nonprofit has and will retain all right, title, and interest in and to the Persona Data of Authorized Persons, Nonprofit Marks, and Nonprofit’s Confidential Information (collectively, “Nonprofit Property” ). To the extent of any Nonprofit interest in any Work Product, Nonprofit agrees to assign and, upon creation automatically assigns, to Give Lively the ownership of Nonprofit’s interest therein, without the necessity of further consideration.
- General License of Nonprofit Property. Nonprofit hereby grants to Give Lively a revocable, non-exclusive, non-transferable license to use the Nonprofit Property solely in connection with the performance of the Services, and as otherwise expressly agreed in writing by the Parties.
- Use of Marks. Nonprofit grants to Give Lively and its affiliated entities a non-exclusive, non-transferable, limited license to use Nonprofit Marks to Feature Nonprofit, and to promote and advertise the Platform and Services, including through websites or social media channels, and in printed materials. Subject to Section 15 (Relationship) hereunder, Give Lively grants to Nonprofit a non-exclusive, non-transferable, limited license to use Give Lively Marks to disclose the relationship between the Parties on Nonprofit’s website, social media channels and other media managed by Nonprofit. Upon written request by the licensor Party, the licensee Party shall promptly cease to use the licensor Party’s Marks, except as necessary for Give Lively to perform the Services pursuant to this Agreement.
- Further Cooperation. Each Party agrees to execute such further documents and to perform such other acts as reasonably necessary to evidence or perfect the rights of the other Party as defined in this Section.
- Use of Confidential Information. Except as otherwise expressly provided in this Agreement, each Receiving Party will (and will cause its employees, agents, and representatives to) maintain all Confidential Information received by it from the Disclosing Party in the strictest confidence, and will only use such Confidential Information for the purpose contemplated in this Agreement. Each Receiving Party will not disclose the Disclosing Party’s Confidential Information without prior written consent of the Disclosing Party. The Receiving Party may permit access to Confidential Information only to those of its employees, agents, and authorized representatives who have signed confidentiality agreements with such Receiving Party, or are otherwise bound by confidentiality obligations to it, that are at least as restrictive as those contained herein.
- Exceptions to Confidentiality. The restrictions on the use or disclosure of Confidential Information in this Agreement do not apply to any Confidential Information that the Receiving Party can demonstrate: (i) is generally available to the public without breach of this Agreement by the Receiving Party, its agents, representatives, or employees; (ii) was rightfully in the Receiving Party’s possession prior to disclosure to it by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of or reference to any of the Disclosing Party’s Confidential Information; (iv) was rightfully received by the Receiving Party from a third party who did not have a duty of confidentiality to the Disclosing Party; or (v) was disclosed in response to a valid order by a court or other governmental body, provided, that the Receiving Party must notify the Disclosing Party in advance of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such Confidential Information. Notwithstanding anything to the contrary herein, Give Lively may collect aggregate statistical data about the use of the Platform and use such data for its internal business purposes, and in connection with its marketing efforts.
- Remedies for Breach of Confidentiality. Each Receiving Party agrees that the Disclosing Party would suffer immediate and irreparable harm if any of its Confidential Information is used or disclosed in a manner not permitted by this Agreement. Upon a breach or the threatened breach of this Section (Confidentiality), the non-breaching Party will be entitled to injunctive relief restraining the breaching Party from such breach or threatened breach. Nothing herein shall be construed as prohibiting the non-breaching Party from pursuing any other remedy against the breaching Party on account of such breach or threatened breach.
- Survival of Confidentiality. Notwithstanding anything to the contrary in this Agreement, the confidentiality provisions and the related parties’ obligations of this Section 7 shall survive any expiration or termination of this Agreement.
Term and Termination.
- Term. This Agreement will commence on the date of Nonprofit subscription to the Platform and will continue until termination by either Party (the “Term” ).
- Termination. Either Party may terminate this Agreement at any time, by giving written notice to the other Party. Upon termination of this Agreement, Nonprofit shall (and shall ensure that each Authorized Person) immediately cease access to the Platform and use of the Services and any other Give Lively Property. Any termination shall be subject to the survival provisions of this Agreement, including without limitation Section 7.4 (Survival of Confidentiality) and Section 16 (Survival).
Representations and Warranties.
- By Give Lively. Give Lively represents and warrants that (i) Give Lively is the owner of the Give Lively Property or otherwise has the right to grant to Nonprofit the license to use the Platform as set forth in this Agreement and any applicable SOW; (ii) there are no pending claims by any third party based on an allegation that the Give Lively Platform or Services violate, misappropriate or infringe on such third party’s Intellectual Property; (iii) the Platform does not contain any back door, virus, or other software routines or hardware components designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data; (iv) Give Lively personnel has the experience and skills required to perform the Services; (v) Give Lively will maintain physical, network, and data security consistent with the reasonable commercial practices of the industry and as provided in any Give Lively policies.
- By Nonprofit. Nonprofit represents and warrants that it shall not, nor will it permit anyone else to: (i) adapt, alter, modify, improve, translate, or create derivative works of the Platform or Services; (ii) attempt to access or download the technology used by Give Lively to provide the Services (other than as expressly provided by Give Lively for Nonprofit to use the Platform) or reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Platform; (iii) provide any third party access to or use of the Platform on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment; (iv) transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the operation of the Platform; (v) attempt to test the vulnerability of the Platform or Give Lively system or network or circumvent any security or authentication measures protecting the Give Lively Property; (vi) remove any proprietary notices or labels in documentation provided by Give Lively; or (vii) use any Give Lively Property in any manner detrimental to Give Lively, including for the purpose of creating or improving any services or technology that performs similar functions or is competitive with Give Lively.
- Value Statements. Furthermore, Nonprofit represents and warrants that it shall not (i) discriminate on the basis of race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, sexual orientation, or military status in any of your activities, programs, or operations. These activities, programs, and operations include, but are not limited to, hiring and firing of staff, employees, interns, selection of volunteers, vendors and contractors, and provision of services, (ii) advocate against or deny the rights of women, including the right to choose to end a pregnancy on their own terms in accordance with federal law as interpreted by the United States Supreme Court, (iii) advocate for the sale, ownership, and/or civilian use of assault weapons, weapons of war, high capacity magazines, automatic weapons or any mechanism that can convert a firearm into an automatic weapon, or (iv) disseminate hate speech or dangerous speech, promote or incite violence online or offline.
DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9 (REPRESENTATIONS AND WARRANTIES), THE SERVICES, PLATFORM AND ALL WORK PRODUCT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER GIVE LIVELY NOR ANY PERSON ASSOCIATED WITH IT MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM AND SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER GIVE LIVELY NOR ANYONE ASSOCIATED WITH IT REPRESENTS OR WARRANTS THAT THE CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR SERVICES OR ITEMS OBTAINED THROUGH THEM WILL OTHERWISE MEET NONPROFIT’S NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, GIVE LIVELY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL GIVE LIVELY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- By using a Payment Processor, Nonprofit acknowledges and agrees that all payments and monetary transactions through the Platform are handled by such Payment Processor, and to be bound by their terms of service, available at www.stripe.com, www.paypal.com, and www.plaid.com respectively. Nonprofit acknowledges and agrees that Give Lively shall not be liable for any issues related to payments and monetary transactions that occur through Nonprofit’s use of the Platform and Services. This includes transactions that were not processed due to a network communication error, or any other reason. Nonprofit acknowledges and agree to not hold Give Lively liable for any adverse effects that actions (whether intentional or unintentional) on the part of any Payment Processors may cause to Nonprofit’s accounts or its business.
Assignment. Nonprofit may not assign this Agreement without the prior written consent of Give Lively.
Governing Law; Jurisdiction. All matters relating to the Platform, Services and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. The parties irrevocably consent to the exclusive jurisdiction and venue of the federal, state, and local courts located in New York County for any dispute arising from or related to the relationship between the parties, including this Agreement, and agree to bring any action solely in such courts.
Survival. The provisions on Sections 4 (Taxes) and all the provisions from Section 7 (Confidentiality) to Section 19 (Waiver) shall survive any expiration or termination of this Agreement (including without limitation any termination pursuant to Section 8 herein).
Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior agreements.
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the other provisions will remain in full force and effect to the greatest extent possible, provided that the omission of the invalid provision does not materially prejudice the rights of either Party.
Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.