BY ACCESSING OR USING THE GIVING IMPACT SERVICE YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
YOU ARE NOT PERMITTED ACCESS TO THE GIVING IMPACT SERVICE FOR MONITORING OR DETERMINING ITS CAPABILITY, AVAILABILITY AND PERFORMANCE OR FOR ANY BENCHMARKING OR OTHER PURPOSE.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE GIVING IMPACT SERVICE.
Minds on Design Lab Inc. (“MOD-Lab”) is the provider of the website at https://givingimpact.com and all linked pages owned and operated by MOD (the “Site”), and other MOD branded or co-branded websites and API (including sub-domains, international versions, widgets and mobile versions, as applicable) now existing or later developed (together with the Site, the “Giving Impact Service”, as further defined below).
“Authorized Users” means your employees, who are authorized by you to use the Giving Impact Service, and who have been supplied with user identifications and passwords by MOD-Lab.
“Data” means all data, information, content and other materials in written or electronic form belonging to you, which is submitted to or processed by the Software or accessed, processed, maintained or stored by MOD-Lab in connection with your use of the Giving Impact Service.
“Documentation” means explanatory materials in printed, electronic or online form accompanying the Giving Impact Service.
“Fee(s)” means the amount(s) paid for the Giving Impact Service, using a credit card or other means, including any transaction fees.
“Giving Impact Service” means the service made available to you via the Site.
“Hosting Infrastructure” means the computer hardware, software, communications systems, network and other infrastructure used by MOD-Lab to provide the Giving Impact Service.
“Permitted Downtime” means any specific period of time (of reasonable duration in light of the circumstances and activities to be performed) that the Service is not available to be used by you and that either: (i) is scheduled by MOD-Lab for the purpose of maintaining the smooth and regular operation of the Giving Impact Service on a continuing basis, including performing periodic, hardware replacement, software upgrades or updates, or other essential maintenance-related services; (ii) is caused by circumstances beyond MOD-Lab’s reasonable control, including any force majeure conditions, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within MOD-Lab’s possession or control, network intrusions or denial of service attacks, and any action or inaction of you; (iii) continues for less than thirty (30) minutes. To the extent practicable, and excluding emergency preventative maintenance, MOD-Lab will endeavor to give you at least two (2) business days electronic notice of any Permitted Downtime and will endeavor to schedule any Permitted Downtime during the weekend hours.
“Service Availability” means the time during which the Giving Impact Service is available to be used by you, measured in minutes on a per calendar month basis, excluding Permitted Downtime.
“Software” means the software used to provide the Giving Impact Service.
“Support Services” means the support services offered by MOD-Lab for the support and maintenance of the Giving Impact Service.
2. MOD-Lab agrees to provide the Giving Impact Service, subject to the terms set forth herein.
3. Grant of Right
Provided that you otherwise fully comply with the provisions of this Agreement, and upon your continued payment of the Fee, MOD-Lab hereby grants to you a limited, personal restrictive, non-exclusive, non-transferable and non-sublicensable license to use the Giving Impact Service, in accordance with the terms of this Agreement. Receipt of the Giving Impact Service does not you to download or install any Software. You will indemnify MOD-Lab for any breaches of this Agreement by Authorized Users.
4. Use terms
a. Service Entitlement. The access and use of the Giving Impact Service is conditional upon MOD-Lab’s receipt of the Fee. You acknowledge that your right to use the Giving Impact Service is subject to the terms of this Agreement. You also agree and hereby certify that the entity on who’s behalf you have registered for the Giving Impact Service is a duly qualified charitable organization, certified as such by the applicable laws and governing bodies in the jurisdiction where such entity conducts its business (i.e., in the United States, this would mean the entity is a 501(c)(3) entity). No physical copies of the Software will be delivered to you.
b. Term. The right to receive the Giving Impact Service is effective for the time period for which you have purchased such Services (“Term”) in accordance with Section 5e below, unless this Agreement is terminated otherwise in accordance with the terms provided hereunder.
c. Restrictions. You may not, nor allow any third party to: (i) decompile, disassemble or reverse engineer the Giving Impact Service or any Software; (ii) remove, modify, obscure and/or otherwise deface any product identification or proprietary rights notices of the Service, Software or Documentation; (iii) transfer, lease, resell for profit, distribute, lend or otherwise grant any rights in the Giving Impact Service or any Software, including without limitation, processing services to other parties for commercial or for timesharing, rental, sharing arrangements or for service bureau purposes; (iv) modify or create derivative works of the Giving Impact Service or any Software; or (v) otherwise use, copy, adapt or distribute the Giving Impact Service or any Software that may be provided thereunder except as expressly provided herein. You shall not transmit any Data that is infringing, obscene, threatening, libelous or otherwise unlawful or tortuous, including material harmful to children or violative of third-party privacy rights, and you shall indemnify and defend MOD-Lab from and against any breach of the foregoing restriction.
5. Service and Payments
a. The availability of the Giving Impact Service is subject to full and cleared payment of the Fee.
b. The Giving Impact Service is purchased in accordance with the fee table set forth on http://givingimpact.com/price. MOD-Lab reserves the right to change the Fees and related metrics from time to time.
c. You shall pay all Fees specified when ordering through this website. The payment obligations are non-cancellable and fees paid are non-refundable. Fees are based on the Term selected by you (“Billing Cycle”) that begins on the date access to the Service is granted to you and continues through to end of the current Billing Cycle. The next Fee will be automatically deducted at the start of the next Billing Cycle (“Billing Date”).
d. By providing your credit card details, you authorize MOD-Lab to charge such credit card for the Giving Impact Service purchased via the Site for the initial Term and any subsequent Term(s) as set forth in Section 5c.
e. The Giving Impact Service commences on the date MOD-Lab accepts your payment. Your right to use the Giving Impact Service is subject to the Fees being paid in full.
f. If during the Term MOD-Lab is unable to secure further agreed payments via your credit card, access to the Giving Impact Service will be suspended immediately at MOD-Lab’s discretion until the Fee has been paid. If payment is not received in full within fourteen (14) days, this Agreement will terminate with immediate effect and MOD-Lab will have no obligation to provide to you, or keep on your behalf, any Data.
6. Support Services
a. Support. MOD-Lab will provide you with email support for the Giving Impact Service during MOD-Lab’s normal business hours. MOD-Lab reserves the right to change its technical support practices from time to time. Notwithstanding the foregoing, MOD-Lab is not obligated to provide Support Services for user training, any third-party equipment or software, your Data or for implementation of any custom code developed by you or your Authorized Users in connection with this Agreement.
b. First-Line Support. You will provide first-line support to Authorized Users. This will include the first intake of all questions/remarks regarding the Giving Impact Service and, if you deem appropriate, passing them on to your Authorized Users.
7. Service Availability and User Right to Terminate
a. The Giving Impact Service will be generally available twenty-four (24) hours a day, seven (7) days a week, except for Permitted Downtime.
b. If you are not satisfied with the Service Availability, your only recourse is to terminate the Giving Impact Service.
8. Limited Service and Warranty Disclaimer
a. THE SOFTWARE, GIVING IMPACT SERVICE AND SUPPORT SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS”. MOD-Lab DOES NOT WARRANT THAT THE SOFTWARE OR THE PROVISION OF THE GIVING IMPACT SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS. MOD-Lab IS NOT RESPONSIBLE FOR ANY DELAYS, BUSINESS INTERRUPTION, DELIVERY FAILURES, INTERCEPTIONS OR DATA LOSSES CAUSED BY THE TRANSFER OF DATA OVER THE INTERNET OR OTHER COMMUNICATIONS NETWORKS. MOD-Lab DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. No advice or information, whether oral or written, obtained from MOD-Lab or elsewhere, will create any warranty not expressly stated in this Agreement. MOD-Lab shall have no liability of any kind if: (i) the Software is not used in accordance with the terms, conditions and restrictions of this Agreement or the Documentation; (ii) the Giving Impact Service or any part thereof has been modified by any party or entity other than MOD-Lab; (iii) a malfunction in the Giving Impact Service has been caused by any equipment or software not supplied by MOD-Lab; or (iv) you have combined the Giving Impact Service with other services, software or hardware not provided by MOD-Lab.
b. High-Risk Activities. The Giving Impact Service is not designed or intended for use in mission-critical environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapon systems, direct life-support machines or any other application in which the failure of the Giving Impact Service could lead directly to death, personal injury or severe physical or property damage (collectively, “High-Risk Activities”). MOD-Lab EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
9. Limitation of Remedies and Damages
a. This clause prevails over all other clauses of this Agreement and sets out the entire liability of MOD-Lab and the sole and exclusive remedies for you, in respect of: (a) the performance, non-performance or purported performance of the Giving Impact Service, or otherwise in relation to this Agreement. MOD-Lab’s total liability to you from all causes of action and under all theories of liability shall not exceed the amount of the Fees paid to MOD-Lab by you hereunder in the twelve (12) months immediately preceding the event giving rise to such liability. Notwithstanding anything else to the contrary in this Agreement, in no event shall MOD-Lab be under any liability to you for any indirect, special, exemplary, incidental or consequential damage, whether based on contract, tort, strict liability or any other legal theory, howsoever caused, whether for breach of warranty, negligence or otherwise and whether such loss or damage was foreseeable, known, foreseen or if MOD-Lab was advised of the possibility of such damage or otherwise when such loss is of: (a) actual or anticipated profits; (b) goodwill; (c) business; (d) revenue or of the use of money; (e) contracts; (f) anticipated savings; (g) data and/or undertaking the restoration of data or software restoration; (h) operation time, use of processes or equipment; or (i) damages relating to the procurement by you of any substitute software and/or services. For the avoidance of any doubt, (a) to (h) apply whether such loss is direct, indirect, consequential or otherwise. MOD-Lab does not exclude or limit liability for: (a) death or personal injury caused by its negligence; or (b) any fraudulent misrepresentation on the part of MOD-Lab; or (c) any other liability that cannot be excluded by applicable law.
b. Reasonable allocation of risk. The parties acknowledge that these limitations and exclusions of liability are agreed to be reasonable allocations of liability and risk, having considered the relative commercial size of the parties, the nature of the contractual obligations, the ability of the parties to bear the losses and the availability of insurance.
You acknowledge that the Giving Impact Service and Software, including all source and/or object code and all parts and aspects thereof, in whatever form, whether or not marked as confidential, the Documentation and any other documentation or materials provided with or related to the Service, including the specific terms of this Agreement and pricing (collectively, the “Confidential Information”), are the valuable proprietary and confidential information of MOD-Lab. You shall (i) limit use and disclosure of the Confidential Information to Authorized Users pursuant to this Agreement who agree to be bound by the terms of this Agreement or are otherwise bound to a confidentiality agreement containing substantially similar terms; (ii) not provide or disclose any of the Confidential Information to another party; and (iii) treat the Confidential Information with the same degree of care to avoid disclosure to any third party as is used with respect to your information of like importance which is to be kept secret, but with no less than reasonable care. You acknowledge that in the event of a breach or threat of breach of this Section 10, money damages alone may not be adequate. Therefore, in addition to any other legal or equitable remedies, MOD-Lab shall be entitled to seek injunctive or similar equitable relief against such breach or threat of breach.
MOD-Lab may suspend the use of the Giving Impact Service in the event that you materially breach the terms of this Agreement and may terminate the Giving Impact Service if you fail to cure such breach within ten (10) days of receiving notice of such breach. Upon such termination you must cease to use and access the Giving Impact Service and return or destroy any copies of the Software and Documentation supplied under this Agreement.
12. Governing Law
This Agreement will be governed by and construed in accordance with the laws of New York, excluding the body of laws known as conflicts of law. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in New York, New York, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
Except for actions for non-payment hereunder or breach of MOD-Lab’s proprietary rights in the Giving Impact Service, Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after a party knew or should have known of the claim.
Survival. Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.
Entire Agreement. This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties relating to the subject matter herein, and expressly supersedes and cancels any other communication, representation or advertising, whether oral or written, on the subjects herein.
Copyright/Ownership. The Giving Impact Service and Software is protected by copyright and other intellectual property laws and treaties. MOD-Lab owns the title, copyright and other intellectual property rights in the Giving Impact Service and Software. You may own any intellectual property rights in any products, or results of using the Giving Impact Service.
Taxes. All Fees are exclusive of any and all taxes. In the event that any sales, use or withholding taxes, goods and services tax, VAT or other taxes or government fees, assessments or charges are payable because of this Agreement, or because of any payment by you, then you shall pay such taxes, fees, assessments and charges in addition to all other payments.
Non-Assignment of Rights. You may not assign or transfer your rights and obligations under this Agreement.
Severability. If any clause under this Agreement is judged null and void, all other clauses shall nevertheless apply.
Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
Non-exclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
Modifications. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
Pre-printed Terms. Any terms and conditions contained in any purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by MOD-Lab.
Rights of Third Parties. Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date of this Agreement as a party to it, and neither party can declare itself a trustee for the benefit of a third party.