Cloud Software Subscription Agreement
Table of Contents
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-GivingTrax.com Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available by Us online via the customer login link at https://www.GivingTrax.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” exclude Non-GivingTrax.com Applications.
“User Guide” means the online user guide for the Services, accessible via login at https://www.GivingTrax.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (30-Day Free Trial) below.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the GivingTrax.com company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
Your Data” means all electronic data or information submitted by You to the Purchased Services.
If you register on our website and choose to pay by check, by default we are extending a trial to you for a period up to 30 days. During this time, we will make one or more Services available to you on a trial basis until the earlier of (a) thirty days from the time of or (b) payment is received. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3.3 Non-Profit entities and individual users may use the Services at no charge by checking the box agreeing to this Master Service Agreement. Non-Profit entities will be allowed limited use, at the sole discretion of GivingTrax.
4.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours’ notice via the Services and which we shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 6:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) beresponsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
5.1. Acquisition of Non-GivingTrax.com Products and Services. We or third parties may from time to time make available to You (e.g., through the AppExchange) third-party products or services, including but not limited to Non- GivingTrax.com Applications and implementation, customization and other consulting services. Any acquisition by You of such non-GivingTrax.com products or services, and any exchange of data between You and any non-GivingTrax.com provider, is solely between You and the applicable non-GivingTrax.com provider. We do not warrant or support non- GivingTrax.com products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. Subject to Section 5.3 (Integration with Non-GivingTrax.com Services), no purchase of non-GivingTrax.com products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
5.2. Non-GivingTrax.com Applications and Your Data. If You install or enable Non-GivingTrax.com Applications for use with Services, You acknowledge that We may allow providers of those Non-GivingTrax.com Applications to access Your Data as required for the interoperation of such Non-GivingTrax.com Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-GivingTrax.com Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-GivingTrax.com Applications for use with the Services.
5.3. Integration with Non-GivingTrax.com Services. The Services may contain features designed to interoperate with Non-GivingTrax.com Applications (e.g., Google, Facebook or Twitter, PARTNERNAME, applications). To use such features, you may be required to obtain access to such Non-GIVINGrax.com Applications from their providers. If the provider of any such Non-GivingTrax.com Application ceases to make the Non- GivingTrax.com Application available for interoperation with the corresponding Service features on reasonable terms, we may cease providing such Service features without entitling you to any refund, credit, or other compensation.
6.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You./p>
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
You agree not to reproduce, modify, copy, frame, reproduce, display, transmit, distribute, publish, sell, or otherwise commercially exploit the Website and/or Content in any form or by any means, in whole or in part, without express written permission from GivingTrax, and any such use is strictly prohibited, except in regards to you own Content posted on the Website in accordance with the Terms or as expressly allowed in these Terms.
7.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
7.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with Non-GivingTrax.com Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (v) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 14.1 (Termination for Cause) and Section 14.2 (Refund or Payment upon Termination) below.
9.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
10.1. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IT IS YOUR SOLE RESPONSIBILITY TO VET A NON-PROFIT BEFORE MAKING A DONATION, GIFT, MONETARY GIFT, SPONSORSHIP, OR ANY OTHER ITEM INCLUDING BUT NOT LIMITED TO, VOLUNTEER SERIVCES, PROFESSIONAL SERVICES, ITEMS, CASH, CREDIT CARD DONASTIONS, GIFT CARDS, GIFT CERTIFICATES.
10.2. Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Beta Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta. BETA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion.
11.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court- approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
11.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
11.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
12.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
12.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
13.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.
Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
The per-unit pricing during any such renewal term shall be the same as that during the prior term unless GivingTrax gives You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
14.1. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.2. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
14.3. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
14.4. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
User of the Service may upload, text, data, photos, audio, video, images, graphics, links, logos, thanks and other content or Content (“Content”) in accordance with the following Terms.
All uploaded content to the Service and the look and feel of the Website (collectively “Content”), are the sole proprietary property of GivingTrax. Any rights to Content not expressly granted to you herein are solely reserved GivingTrax.
The Servicemay allow you to download content and Content for your personal, non-commercial use.
15.2 GivingTrax reserves the right to remove offensive, objectionable or indecent or otherwise inappropriate content. GivingTrax may, but is not obligated to, preview or review any Content and, in its sole discretion, block or remove without notice Content that violate the Terms or are otherwise objectionable from the Website. However, failure to block or remove any Content is not an endorsement, warranty, representation, or guarantee regarding such Content.
15.3 You represent and warrant that your Content do not infringe the copyright, trademark, publicity/privacy right or other intellectual property or proprietary right of any third party.
15.4 Unless expressly allowed in the Terms or you receive prior written consent from GivingTrax, you shall not upload to, distribute through, or otherwise publish through the Website any Content that are commercial in nature or Content that contain any solicitation of funds (except by or on behalf of nonprofits), promotion, advertising or solicitation for goods or services without GivingTrax’s express written consent.
15.5 By posting, uploading or otherwise distributing Content on the Service, you explicitly consent that other users of the Service may access, display, view, store, and/or download such Content, and post or forward such Content to others who may or may not be registered users of the Service.
15.6 You hereby grant for all purposes, including but not limited to use, copy, modify, publish, edit, create derivative works from, distribute from such Content and incorporate such Content into other works in any form, media or technology.
15.7 By providing Content to the Service, you hereby permit GivingTrax to identify you as the provider of such Content in any form, media and technology. You may revoke this license in regard to the right to display your Content by removing your Content from the Service.
15.8 You agree that GivingTrax has no liability or responsibility for the storage or deletion of any Content that you submit or post or emails you send through the Website. GivingTrax reserves the right to change its general practices and limits at any time in its sole discretion, with or without notice.
15.9 PCI Compliance prohibits GivingTrax from accepting credit card numbers or credit card information through messaging services, such as email, text messaging.
15.10 GivingTrax and its payment processing providers are PCI Compliant. No credit card information is stored at GivingTrax or on GivingTrax servers.
Users of the Service are expressly prohibited from performing inappropriate activity. These activities may include, but are not limited to, the following actions:
16.1 Harass or “stalk” anyone;
16.2 Upload, distribute, or otherwise publish any Content to or through the Website that contain viruses or other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications, networks, servers or other equipment;
16.3 Post, upload, or distribute any Content that constitute or contain affiliate marketing, link referral code, junk mail, spam, chain letters, pyramid schemes, or unsolicited commercial advertisement.
16.4 Post, upload or otherwise distribute any private, personally identifiable, financial, voting, confidential, or proprietary information of another individual or entity without their written express permission;
16.5 Collect personal data about other users for commercial or unlawful purposes;
16.6 Use automated means, including spiders, robots, crawlers, data mining tools, or the like to scrape or download data from the Website, unless expressly permitted by GivingTrax;
16.7 Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
16.8 Upload, post or distribute any Content which, in GivingTrax ‘s sole determination, are indecent, libelous, defamatory, obscene, profane (or partially obscured profanity), harmful of minors in any way, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, otherwise objectionable, contain expressions of hatred, bigotry, racism or pornography, or would constitute or encourage a criminal offense or other illegal activity, violate the rights of any party or any law;
16.9 Attempt to gain unauthorized access to GivingTrax’s computer systems or engage in any activity that disrupts, diminishes the quality, interferes with the performance, or impairs the functionality of the Website;
16.10 Create multiple user accounts by automated means or under false or fraudulent pretenses;
16.11 Remove or obscure any copyright or other proprietary notices from the Content;
16.12 Republish Content on any Internet, Intranet or Extranet website or incorporate the Content in any other database or compilation (except for your Content);
16.13 Sell, reproduce, distribute, modify, display, prepare derivative works based on, or otherwise make unauthorized use of any Content, which is protected by trademarks, copyrights, trade dress or other intellectual property rights; or
16.14 Access, use, modify, copy, reverse engineer, or otherwise derive the source code of any software associated with the Website.
17. If you provide your email address at the Service, we may use your email address to contact you and notify you. You can choose which types of email you receive from us by changing your account settings at the Service. Generally, you cannot opt-out of receiving certain communications such as service-related announcements and administrative messages, except by terminating your account.
19. Due to technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained on this Website. Computer viruses or other destructive programs may also be inadvertently downloaded from this Website.
GivingTrax shall not be responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your access to, use of, or browsing on this Website or your downloading of any of the Materials from this Website. GivingTrax recommends that you install appropriate anti-virus or other protective software on your computer.
20. Non-Profit Membership. In addition to the above terms of the Master Subscription Agreement, Non-Profit members agree-to and certify that:
20.1 You are a valid 501C-3 entity and are in good standing as recorded by the Internal Revenue Service and GuideStar.org at the time of registration. Additionally, you certify that you are in good financial standing, health, or other measure of 501C3 viability.
20.2. You agree to discontinue use of the Service and remove your entity immediately upon a change in status. A change in status may include, but is not limited to: Loss of 501C3 status, notice of loss of good standing by the IRS, removal from GuideStar, any other action that would result in loss or suspension of 501C3 status. You agree to notify GivingTrax of any change in standing.
20.3 Additionally, you agree to discontinue use of service if you are no longer in financially sound.
20.4 You certify that you are not a terrorist organization.
20.5 You certify that you are a U.S. non-profit entity. For providers of services outside of the United States, you certify that you have a U.S. Headquarters location.
Recipient Organization Membership. In addition to the above terms of the Master Subscription Agreement, YOU agree-to and certify that:
21.1 You have a valid U.S. Federal Tax ID Number and are in good standing as recorded by the Internal Revenue Service. Additionally, you certify that you are in good financial standing, health, or other measure of viability.
21.2. You agree to discontinue use of the Service and remove your entity immediately upon a change in status. A change in status may include, but is not limited to: Notice of loss of good standing by the IRS, any other action that would result in loss or suspension of your registered EIN. You agree to notify GivingTrax of any change in standing.
21.3 Additionally, you agree to discontinue use of service if you are no longer in financially sound.
21.4 You certify that you are not a terrorist organization.
21.5 You certify that you are a U.S. entity. For providers of services outside of the United States, you certify that you have a U.S. Headquarters location.
23. THIS WEBSITE SERVICE AND THE MATERIALS ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GivingTrax DOES NOT REPRESENT OR WARRANT THAT THIS WEBSITE OR THE MATERIALS WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
24.Feel free to email GivingTrax at [email protected]. However, the Internet is not a fully secure medium and any communication may be lost, intercepted or altered. GivingTrax is not liable for any damages related to communications to or from this Website. You agree with respect to any information provided by you to us through this Website or via e-mail that:
- GivingTrax has no obligation concerning such information;
- the information is non-confidential;
- GivingTrax may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose without compensation; and
- the information is truthful and disclosure of the information does not violate the legal rights of others.
25.By initiating or completing a monetary transaction on GivingTrax, you agree to the following additional terms and conditions:
25.1 Monetary transaction in or thorugh GivingTrax are disbused directly to the recipient organization when the recipient organization has setup ACH. If the recipient organization is located in the United States and has not setup direct ACH deposit through the Stripe API provided for in GivingTrax, funds will be received by GivingTrax Foundation, or alternative donor advised fund and subsequently disbursed manually. If GivingTrax Foundation is unable to disburse to the intended recipient organization for any reason, you agree to allow disbursement of funds to an alternate organization of GivingTrax Foundation’s sole choosing.
25.2 Donations made on or through GivingTrax to an a organization that has created a Stripe account through the API provided for within GivingTrax, will be deposited directly into that recipient organizations’ Stripe account.
25.3 Montary transactions are nonrefundable. Contributions cannot be cancelled, returned or refunded.
25.4 GivingTrax vets 501(C)(3) organizations using the IRS publicly available database at the time of registration as a courtesy only. GivingTrax does not warrant or guarantee that donations or contributions made to an organization marked as a 501(c)(3) will be eligible as a tax deductible contribution. Please refer to your tax professional and check the online IRS database for the most current information of potential eligibility of an organization or a donation to it to be considered as a tax deductible charitable donation. It is your responsibility to perform final validation and vetting of the intended recipient organization.
25.5 Not all recipient organizations in GivingTrax are registered 501(C)(3) organizations. GivingTrax allows its members to donate to any type of organization. It is your sole responsibility to determine whether donation qualifies as a tax-deductible donation.
25.6 When donating or contributing though this Service, you agree not to accept any goods or services in exchange for your donation.
25.7 CONTRIBUTIONS MADE THROUGH THIS SERVICE ARE NON-REFUNDABLE.
25.8 Credit Card Transaction Fees, Charity Support Fees and Disbursement Fees Apply: The recipient organization will receive contributions net of fees assessed. By using GivingTrax, you agree to the transaction fees that are assessed and charged out to the recipient organization. Companies offering employee giving programs may opt to cover these fees.
25.8.1 You acknowledge that you are also responsible for any penalties or fines imposed on Stripe or directly to you by any Card Network or financial institution as a result of your activities. Fees are assessed on any type of Monetary Contribution that is made by credit card, debit card, mobile payment or payroll deduction.
The following Transaction Fees may apply:
- Minimum Contribution: $5.00
- Stripe merchant fees vary based on the recipient organization’s plan and volume. Current fees ares 2.9% (Blended Rate) + 30¢ per transaction or Optional Split Rate of 2.2% (Visa/MC) and 3.5% (AMEX), + 30¢ per transaction. For more details on Stripe merchant fees and terms, please visit: https://stripe.com/pricing
- A charity support fee up to 2.5% may assessed on all payment transactions by GivingTrax Cloud Software.
- Currency Conversion Fees: Currency conversion fees may apply.
- Managed Services including periodic funding of Matching Gifts & Giving by Payroll Deduction: A per transaction fee of 5% + $2.50 ($3.50 International) is assessed against transactions by GivingTrax as a support fee for managed services.
- Manual Payouts: Manual Payouts occur when ACH is not setup. Funds to be disbursed by traditional check are are received by GivingTrax Foundation, or similar organization, for subsequent disbursement to the intended recipient organization.
26. GivingTrax may revise and update this Subscription Agreement at any time with and without notice. You are cautioned to review the Subscription Agreement posted on the Service website periodically. Your continued access or use of this Service after any such changes are posted will constitute your acceptance of these changes.