CLIENT TERMS AND CONDITIONS
Last Updated: October 18, 2023
This Client Terms and Conditions is entered into by and between GiveTeam, PBC (“GiveTeam”) and the entity or person placing an order for or accessing any Services ("Client" or "you"). If you are accessing or using the Services on behalf of your company, institution, or other entity, you represent that you are authorized to accept this Agreement on behalf of your company, institution or entity, and all references to "you" or "Client" reference your company, institution or entity. Please note that if you sign up for the Services using an email address from your employer or another entity, then (1) you will be deemed to represent such party, (2) your acceptance will bind your employer or that entity to these terms, and (3) the words “Client”, “you” or “your” in this Agreement will refer to your employer or that entity. This “Agreement” means this Client Terms and Conditions, any Service Orders, and any attachments, linked policies or documents referenced in the foregoing. The “Effective Date” of this Agreement is the date which is the earlier of (a) Client's initial access to the Services (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Service Order referencing this Agreement. Though your access and use of the Services is governed by the Agreement effective at the time, please note that we may revise and update these Client Terms and Conditions from time to time in our discretion. Changes to the Client Terms and Conditions are effective when they are posted on this page. You acknowledge and agree that your continued use of our Services after we publish our changes to the Client Terms and Conditions represents your acceptance of such changes.
SERVICES.
1.1 Service Orders. GiveTeam shall provide to Client the services set forth in a written service order form executed by both parties (“Service Order”) in accordance with such Service Order and the terms and conditions of this Agreement (“Services”). Client acknowledges and agrees that GiveTeam’s performance of the Services is dependent on Client providing in a timely manner to GiveTeam responses, materials, Donor introductions, and other information and correspondences as reasonably requested by GiveTeam. In the case of any conflict between the terms of this Agreement and a Service Order, such conflict will be resolved in favor of the Service Order. Client will pay GiveTeam as provided in the applicable Service Order. GiveTeam may charge and Client will pay applicable national, state, or local sales or use taxes or value added taxes that GiveTeam is legally obligated to charge.
1.2 Donors. The Services may include supporting Client in providing recommendations with respect to philanthropy customized for Client’s customers (“Donors”). Client will initiate all required correspondences and procure any necessary permissions or authorizations from Donors to allow GiveTeam to provide the Services as contemplated hereunder. If the Services include GiveTeam providing services directly to Donors, as set forth in the applicable Service Order, Client understands and agrees that (a) GiveTeam may directly communicate with Donors to collect information and responses (“Donor Information”) and consents to GiveTeam providing training, informational, and follow-up sessions to such Donors; and (b) GiveTeam will share Donor Information with Client only to the extent the Donor has expressly consented and authorized such sharing. Client further understands and agrees that GiveTeam is only responsible for providing grantee database information, and the Donor (not GiveTeam) is solely responsible for sufficiently vetting and conducting due diligence on grantee organizations. GiveTeam cannot guarantee and makes no representations with respect to any grantee organizations, the outcome of Donor grantmaking, or that the Donor will cooperate or report accurate or complete grantmaking information to GiveTeam.
1.3 Use Restrictions. Client may not use the Services (or any recommendations or deliverables included as part of the Services) to: (a) engage in any activity that incites or encourages violence or hatred against individuals or groups; (b) engage in or provide material support to any unlawful activity; (c) send advertising or promotional material, unsolicited communications, promotions or advertisements, or spam; (d) create services or products that competes with the Services; (f) engage in machine learning purposes or to compile or create any database based on data, information, or recommendations made available through the Services.
1.4 White Labeling. To the extent the Services are to be delivered under Client Brand Attributes (defined below), as specified in the applicable Service Order (“White Label Option”), Client hereby grants to GiveTeam a worldwide, nonexclusive, royalty-free license to use Client’s trademark, trade dress, graphics, packaging designs and artwork and other Client branding intellectual property (collectively, the “Client Brand Attributes”) solely in connection with providing the Services, and GiveTeam shall have the right to grant a sublicense to its authorized designers, consultants and other contractors in order for the Services to be provided and delivered bearing the Client Brand Attributes. Client shall provide to GiveTeam master copies of the Client Brand Attributes in the format requested by GiveTeam. Client is responsible for obtaining consents, licenses, and other rights, including without limitation clearing any copyright, trademark, or other intellectual property rights, to authorize GiveTeam’s use of the Client Brand Attributes as contemplated herein.
1.5 Aggregate Data and Statistics. GiveTeam reserves the right to collect data created or derived by GiveTeam resulting from Client’s use of the Services that has been aggregated and de-identified such that the data does not identify Client or any Donor (“Usage Data”). GiveTeam may use Usage Data for its business purposes including but not limited to for maintaining, improving, or analyzing the Services, and may develop, export, and/or commercialize benchmarks, learnings, measures, and insights based on Usage Data, which are and shall be deemed to constitute part of GiveTeam IP.
TERM; TERMINATION.
2.1 This Agreement begins on the Effective Date and continues until the earlier to occur of a) Client has not utilized the Services for a period of one (1) year, or b) a party gives the other party 30 days’ notice of its intent to terminate the Agreement (“Notice of Termination”). Any Notice of Termination will not affect any active or outstanding Service Orders, and, in the event there is an active or outstanding Service Order, this Agreement will terminate upon the expiration of all active Service Orders. Termination of this Agreement shall not relieve Client of its payment obligations with respect to any Services which have been initiated as of the date of termination.2.2 A party may terminate this Agreement or any applicable Service Order upon written notice for the other party’s material breach of this Agreement if the other party fails to cure such breach within 30 days. Upon any such termination of this Agreement or a Service Order, Client will pay for Services performed and liabilities incurred prior to expiration or termination.
2.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
2.4 GiveTeam may immediately suspend Client’s access to the Services if (a) Client fails to pay undisputed amounts due under an Service Order or (b) if GiveTeam has a reasonable belief that Client has violated or will violate Section 1.3 (Use Restrictions) of this Agreement; or (c) GiveTeam determines, in good faith, that Client’s actions are likely to damage or cause legal liability for GiveTeam, its suppliers, or other clients. GiveTeam shall reinstate Client’s access to the Services once GiveTeam reasonably believes Client has corrected the action that first led to such suspension. Any suspension by GiveTeam of the Services under the preceding sentence will not relieve Client of its payment obligations under this Agreement.
2.5 Upon termination or expiration of this Agreement, all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 1.3, 1.5, 2.5, 3, 4, 5, 6, and 7.
INDEPENDENT CONTRACTORS. GiveTeam and Client are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between GiveTeam and Client. GiveTeam may subcontract the Services or delegate any of its obligations under this Agreement or any Service Order, provided GiveTeam is responsible for the performance of the Services and for its subcontractors’ compliance with the terms of this Agreement.
CONFIDENTIALITY. Each party will comply with the terms of any nondisclosure agreement between GiveTeam and Client (or Client’s affiliates) (“NDA”). If no such agreement exists, each party (a) will protect and keep confidential the existence of this Agreement (including, without limitation, all Service Orders), its terms and conditions and any other proprietary information obtained from the other party in connection with this Agreement or related to the Services that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary, and (b) will use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling its obligations under this Agreement. Without limiting the foregoing, any Donor Information shall be considered confidential information of the disclosing party. All such information will remain the disclosing party’s exclusive property, and the receiving party will have no rights to use such information except as expressly provided herein. The obligations in this Section 4 shall not apply to 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 and without an obligation of confidentiality; (iii) was independently developed by the receiving party without the use of or reference to the confidential information of the disclosing party; or (iv) is lawfully received from a third party without breach of any obligation owed to the disclosing party and without an obligation of confidentiality. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or regulation or as otherwise reasonably requested by governmental or regulatory authorities; provided, that to the extent legally permissible and reasonably practicable (but, for the avoidance of doubt, excluding any disclosure with respect to routine inquiries or requests for information or any information disclosed in connection with a regulatory examination), the receiving party shall give reasonable advance notice to the disclosing party prior to making such disclosure. The parties acknowledge and agree that the use or disclosure of Confidential Information in any manner inconsistent with this Agreement will cause the other party irreparable damage. The other party shall have the right to seek equitable and injunctive relief to prevent such unauthorized use or disclosure in connection with such use or disclosure.
PROPRIETARY RIGHTS.
5.1 GiveTeam Ownership Rights. GiveTeam (or its licensors, where applicable) owns all intellectual property rights in and to the Services together with any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by or on behalf of Client (“GiveTeam IP"), solely as such information relates to the Services, and expressly excluding any of Client’s confidential information.
5.2 Client Ownership Rights. Client and its licensors shall have and retain all right, title, and interest (including, without limitation, sole ownership of) all confidential information provided by Client to GiveTeam and the intellectual property rights with respect to such information.
5.3 GiveTeam General Expertise. Client acknowledges that GiveTeam’s ability to perform services is dependent on GiveTeam’s past experience in providing similar service to others, and that GiveTeam expects to continue such work in the future. GiveTeam retains full ownership of its methods of business or operation or expertise relating to services that it provides. This Agreement is not intended to prevent GiveTeam from using residual knowledge for its business purposes. “Residual knowledge” refers to any information that is retained in the unaided memories of GiveTeam’s employees and personnel in connection with this Agreement.
WARRANTIES; DISCLAIMER; LIABILITY.
6.1 Each Party hereby represents and warrants to the other Party that: (a) it has the full right, power, and authority to enter into this Agreement; and (b) when executed by both Parties, this Agreement will be a valid and binding obligation of such Party. GiveTeam represents and warrants that it does not receive any form of compensation (e.g. finders fees, referral fees, fees to be included in the database, etc.) from the grantee organizations recommended by GiveTeam.6.2 Except for the express warranties set forth in section 6.1 above, GiveTeam, its affiliates, licensors and suppliers and the third-party providers disclaim all warranties, whether express or implied, statutory or otherwise. The services are provided “as is” and “as available”. GiveTeam specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, GiveTeam makes no warranty of any kind that the services, or any products or results, recommendations, or deliverables provided in connection with the services or the use thereof, will meet client’s, donors’, or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any other services, or be secure, accurate, complete or error free. Without limiting the foregoing, GiveTeam makes no warranty of any kind regarding recommended nonprofit organizations, including but not limited to with respect to eligibility or suitability of such organizations, grantmaking decisions by donors or the outcomes or impact of any grants.
6.3 In no event will either party or its affiliates be liable under or in connection with this agreement or its subject matter under any legal or equitable theory, including breach of contract, tort, strict liability or otherwise, for any indirect, incidental, special, punitive or consequential damages, however arising, and regardless of whether such party or its affiliates were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose. To the fullest extent permitted under applicable law, in no event will GiveTeam’s and its affiliates’ aggregate and cumulative liability under this agreement or in connection with the services, regardless of the nature of the legal or equitable right claimed to have been violated, exceed the fees paid or payable to GiveTeam in the twelve (12) month period preceding the first event giving rise to a claim.
GENERAL.
7.1 Assignment. Neither party may assign any part or all of this Agreement without the other party’s prior written consent, provided that a party may assign this Agreement (or any of its rights and obligations under this Agreement or any Service Order). Any attempt to assign in violation of this section is void in each instance.
7.2 Governing Law/Venue. This Agreement is governed by California law, excluding its conflicts of law rules. GiveTeam irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Santa Clara County, California, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts.
7.3 Notices. Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile, email or personal delivery to the other party at the contact information specified in the applicable Service Order. If no address is listed for Client, notice to GiveTeam will be effective if given to the last known address. Notice is effective: (a) when delivered personally, (b) three business days after sending by certified mail, (c) on the business day after sending by a nationally recognized courier service, or (d) on the business day after sending by facsimile with electronic confirmation to the sender or electronic mail with confirmation of the recipient. A party may change its notice address by giving notice in accordance with this section.
7.4 Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
7.5 No Waiver. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
7.6 Cumulative Rights/Construction. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity. The section headings of this Agreement are for convenience only and have no interpretive value.
7.7 Entire Agreement. This Agreement including any Service Orders, together with all associated exhibits and schedules, which are incorporated by this reference, and NDA, if any, constitute the complete and final agreement of the parties pertaining to the Services and supersede the parties’ prior agreements, understandings and discussions relating to the Services.