Last Modified: June 26, 2017
These Term of Use (the “Agreement”) are entered into and effective as of the date of your account registration with Donately (“Effective Date”). This Agreement governs the relationship between Donately Corporation, a California Corporation, with offices located at 629 J Street, STE 207, San Diego, CA 92101, (“Donately,” the “Company,” “we,” “our,” or “us”), and you the account holder, user, or licensee (“You” or “User) (collectively, the “Parties”), whether as an individual or as a representative of an entity. The Agreement also covers your use of our website and our Software as a Service products (“Software”), which are designed to enable organizations to accept donations directly through their website, or through our website.
This Website is offered and available to users who are 13 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
1 – Grant of Rights
- Software. Subject to the terms and conditions set forth herein, we hereby grant you a limited, world-wide, non-exclusive, fee based, non transferable (except as set forth under Section 11.6) right and license, under our Intellectual Property Rights, to (i) use, in the form in which such Software is delivered by the Donately only,, and (ii) utilize such Software only for the purpose of receiving donations.
- Limited Rights of Licensee. Your obtainment and/or use of the Software does not grant You any rights of ownership in the Software, as all rights granted are merely those of a licensee under the terms of this Agreement, with those rights granted only for such time as (i) You conform to the terms and conditions of this Agreement, and (ii) until the termination of this Agreement.
- No Other Rights. Except for the limited rights expressly granted under this Agreement, neither this Agreement nor Your exercise of rights granted convey any other rights or license to the Software, Confidential Information, Documentation, and Marks whether by implication, estoppel or otherwise, under any of Donately’s Intellectual Property Rights (as defined below). We retain all rights, title and interest in and to the Software, Confidential Information, Documentation and Marks (as defined below), including without limitation, all worldwide right, title and interest in and to (i) all patents and all filed, pending applications for patents, including any reissue, reexamination, divisional, continuation or continuation- in-part patent applications now or hereafter filed (“Patent Rights”); (ii) all trade secrets, and all trade secret rights and equivalent rights arising; (iii) all works of authorship, including all registered and unregistered copyrights; and (iv) all proprietary indicia, trademarks, trade names, symbols, logos and/or brand names (“Marks”), in each case of (i) through (iv) as the same may arise or exist under common law, state law, federal law and laws of foreign countries (collectively “Intellectual Property Rights”).
2 – Payments
- Transaction Fees. The fees owed with respect to the rights and licenses granted hereunder shall be no more than 4 percent (%4.000) per unique credit card donation. Donately’s transactions fees shall be immediately deducted, if possible. In cases where the fees cannot be immediately deducted, a bill will be created once a month with those aggregate fees. These fees do not include Stripe’s processing fees, which will also be deducted immediately at the time of the transaction processing.
- Taxes. The fees charged do not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied against the sale, licensing, delivery or use of the Software. You agree to pay, or reimburse, Donately for all such taxes imposed, provided, however, that you shall not be liable for any taxes based on Donately’s net income. When Donately has the legal obligation to collect such taxes, the appropriate amount shall be paid by you unless you provide Donately with a valid tax exemption certificate authorized by the appropriate taxing authority. You agree to promptly notify us of any amendment or revocation of such certificate, and will hold Donately harmless from and against any taxes or other monies resulting from the failure to hold a certificate recognized as valid by the appropriate tax authority.
3 – Your Additional Obligations
- Performance Obligations. You shall not alter, re-label or change the Software as provided by Donately, and as may be amended at any time at our sole discretion, without our prior written consent.
- Books and Records. You agree to keep and maintain accurate books and records as reasonably necessary for verification of transaction payments pursuant to this Agreement.
- Terms and Conditions of Card Processor(Stripe). You agree at all times to conform to
the terms and conditions of credit card processing as defined by Stripe.com, which terms and conditions may be amended from time-to-time at the sole discretion of Stripe.
4 – Limited Warranty
- Limited Warranty. Donately agrees to provide Software which operates for the purpose of permitting you to accept donations through your website. Donately shall have no obligation to provide warranty services if a defect is caused by a malfunction of non- Donately hardware or software, or the failure to install and use any mandatory bug fixes or other software code provided free of charge by Donately, provided the relevant defect is caused by or is not remedied by failure to install the same, by modification of the Software not made by Donately, or by operator error or by misuse of Software.
- Disclaimer. EXCEPT AS MAY BE AGREED TO IN A SEPARATE WRITING BETWEEN THE PARTIES, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIMITED WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER STATUTORY, BY OPERATION OF LAW, OR OTHERWISE, AND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE, ACCURACY AND ANY WARRANTIES ARISING OUT OF USAGE OR TRADE. THIS WARRANTY IS APPLICABLE SOLELY TO YOU AND NOT TO ANY DONOR OR ANY OTHER THIRD PARTY. NO WAIVER, ALTERATION OR MODIFICATION OF THIS WARRANTY SHALL BE BINDING AGAINST DONATELY UNLESS IN WRITING AS A SEPARATE AMENDMENT HERETO AND SIGNED BY AN EXECUTIVE OFFICER OF DONATELY.
- Licensee Warranty Limitations. You agree to indemnify, defend and hold harmless Donately, it’s officers, agents, employees, and affiliates from any claim or liability arising out of or relating to any grant by you of any representation or warranty.
5 – Terms and Termination
- Terms. This Agreement shall continue in force during your use the Software provided by Donately as defined in this agreement. Either party may terminate this Agreement at any time. If you would like to terminate this Agreement, you must send a request to Donately to close your account. Donately may terminate this Agreement by closing your account, which will prevent the processing of future donations. Donately may, at their sole discretion, suspend and/or place an account under review for possible violation of terms, related to the list described in Section 5.1a.
- Without limiting the foregoing, you agree to not use the Services to establish or contribute to any Campaign with the implicit or express purpose relating to any of the following:
- Any activity that violates any law or governmental regulation;
- Campaigns that are fraudulent, misleading, inaccurate, dishonest, impossible or imitating any other person or fundraising campaign without permission (whether on the Platform or not);
- The promotion of hate, violence, harassment, discrimination, terrorism, or intolerance of any kind, including by race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender or gender identity, or serious disabilities or diseases;
- Illegal drugs, narcotics, steroids, controlled substances or other products that present a risk to consumer safety or any related paraphernalia;
- Ransom, human trafficking or exploitation;
- Knives, explosives, ammunition, firearms, or other weaponry or accessories;
- Gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, fantasy sports, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill or chance (whether or not it is legally defined as a lottery) or sweepstakes;
- Offensive, graphic, perverse or sensitive content, including pornography or other sexual content;
- Annuities, investments, equity or lottery contracts, lay-away systems, off-shore banking or similar transactions, money service businesses (including currency exchanges, check cashing or the like), debt collection or crypto-currencies;
- Offering monetary rewards, including gift cards, without declaring fair market value (FMV) of goods exchanged;
- Transactions for the sale of items before the seller has control or possession of the item;
- Collection of payments on behalf of merchants by payment processors or otherwise;
- Credit repair or debt settlement services.
- Without limiting the foregoing, you agree to not use the Services to establish or contribute to any Campaign with the implicit or express purpose relating to any of the following:
- Termination for Insolvency. This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of bankruptcy proceedings, which proceedings are not dismissed within ninety (90) days of their commencement, or (ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution.
- Survival. The provisions of Section 1.3, 3.1, 3.2, 4.2, 5.3, 5.4, 6.1, 6.2, 6.3, 8, 9, 10, 11, and all payment obligations incurred prior to termination shall survive the termination of this Agreement for any reason.
- No Liability for Termination. In the event of termination of this Agreement by either Party in accordance with any of the provisions of this Agreement, neither Party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales, or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either Party. Termination shall not, however, relieve either Party of obligations incurred prior to the termination.
6 – Intellectual Property Notices and Confidentiality
- Intellectual Property Notices. You agree not to remove and to retain all proprietary Marks, legends and IP notices that appear on or display in connection with the Software, documentation, and Confidential Information delivered to you by Donately, and all whole or partial copies thereof.
- Confidential Information. For purposes of this Agreement, a Party’s Confidential Information shall mean (i) all information considered by one Party to be confidential and which is clearly marked as “confidential” prior to disclosure to the other Party, or if disclosed orally or visually disclosed, shall be identified as the confidential information of the disclosing Party at the time of disclosure and then summarized in writing and provided to the recipient within thirty (30) days of such oral or visual disclosure; (ii) all information concerning or related to the Software, including but not limited to the logic, designs, source code, product specifications, inventions, research, improvement, manufacture and sale of the Software (including sales, costs, profits, pricing methods, organizations, business and product plans), and (iii) any other information which a reasonable business person would consider to be confidential information of the other Party. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving Party; (ii) is disclosed by one Party with the prior written approval of the other Party, (iii) is received by the receiving Party from a third party without a confidentiality obligation or duty of nondisclosure; or (iv) is disclosed pursuant to any judicial or governmental order, provided that to the extent consistent with such order the disclosing Party gives the other Party sufficient prior notice to contest such order.
- Non-Use and Non-Disclosure. The Parties to this Agreement agree to observe complete confidentiality with respect to the Confidential Information, and to make all reasonable efforts not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without the prior written permission of the other Party (except such disclosure or access which is required to perform any obligations under this Agreement and to ensure that any employees, or any third parties who obtain access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information. Without limiting the foregoing, the Parties agree to employ, with regard to the Confidential Information, procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information.
- Source Code. You agree not to attempt, directly or indirectly, to decompile, disassemble, reverse engineer or use any other similar process with respect to the code, logic or information embodied by the Software.
7 – Trademarks and Trade Names
- Use. During the Term, you shall have the right to use Donately’s Marks to advertise and identify that your website donation program is administered with the Software. You shall use such Marks in accordance with Donately’s usage in the Software, and shall not modify or delete such Marks as set forth in the Software or in its user interface without the prior written consent of Donately, in its sole discretion.
- Ownership. Except for the limited rights provided for in this Section 7, nothing contained in this Agreement shall grant you any right, title or interest in Donately’s Marks. At no time during the Term shall you challenge or assist others in challenging Donately’s rights in and to its Marks, or the registration thereof, or attempt to register any trademarks, trade names or other proprietary indicia confusingly similar to such Marks. All uses of Donately’s Marks will inure solely to Donately, and you hereby irrevocably assign to Donately all such right, title and interest, if any, in any such Marks and agree to provide Donately reasonable assistance in its registration of the Marks in those jurisdictions in which your activities will be carried out.
8 – Patents and Copyright Indemnity
- Limitation of Liability. DONATELY SHALL HAVE NO LIABILITY FOR ANY CLAIM BASED UPON: (I) THE COMBINATION, OPERATION OR USE OF THE SOFTWARE WITH EQUIPMENT, DEVICES OR SOFTWARE NOT SUPPLIED, APPROVED, OR SPECIFIED BY DONATELY, WHERE SUCH CLAIM ARISES SOLELY AS A RESULT OF SUCH COMBINATION; (II) ANY ALTERATION OR MODIFICATION OF ANY PRODUCT NOT PERFORMED BY DONATELY, (III) THE FAILURE TO INSTALL MANDATORY SOFTWARE UPDATES AND/OR FIXES OR OTHER SOFTWARE CODE PROVIDED FREE OF CHARGE TO YOU AND/OR YOUR DONORS, PROVIDED SUCH CLAIM WOULD NOT HAVE ARISEN BUT FOR SUCH FAILURE TO INSTALL THE SAME, (IV) MISUSE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, USE NOT IN ACCORDANCE WITH THE INTENDED PURPOSE OF THE SOFTWARE.
- Entire Liability. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF DONATELY, AS WELL AS YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND DONATELY SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR MISAPPROPRIATION.
- Notification of Unauthorized Use. You agree to promptly notify Donately in writing upon your discovery of any unauthorized use or infringement of the Software, or Donately’s Intellectual Property Rights with respect thereto. Donately shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Donately brings such an action or proceeding, you shall cooperate and provide full information and assistance to Donately (at Donately’s expense) and its counsel in connection with any such action or proceeding.
9 – Indemnification by Licensee
- Subject to Donately’s indemnification obligation pursuant to Section8, you shall defend, or at your sole option, settle, at your sole expense, any demand, claim or action brought against Donately to the extent that such demand, claim or action is based on an allegation by a third party based on your actions or omissions with respect to this Agreement or your use of the Software, and you will indemnify Donately from any costs, damages and fees (including attorney’s fees) incurred by, settled for, or awarded against Donately from such claim. You shall be relieved of the foregoing indemnification obligations to the extent Donately fails to (i) notify you promptly in writing of any Claim, (ii) permit you to defend against, compromise or settle such Claim or (iii) provide all available information and assistance (at your expense) reasonably necessary for you to defend against, compromise, or settle such claim. You shall not be liable for any costs, damages or fees incurred by Donately on such action or claim unless you have authorized this in writing in advance. You will not agree to a settlement that would adversely affect Donately’s interests without Donately’s express written consent.
10 – Limitation of Liability
- No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, ITS AFFILIATES, AGENTS, REPRESENTATIVES, EMPLOYEES OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY (EXCEPT PURSUANT TO SECTIONS 8 AND 9) UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING ANY AMOUNTS FOR LOSS OF PROFITS, SUBSTITUTE GOODS, LOSS OF DATA OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR TERMINATION HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR WARRANTY PROVIDED HEREUNDER. THE FOREGOING LIMITATION SHALL NOT APPLY TO AMOUNTS FOR WHICH EITHER PARTY IS LIABLE TO THE OTHER PARTY UNDER SECTION 4 SECTION 6,, OR SECTIONS 8 OR 9 (INDEMNIFICATION), OR BASED ON YOU EXCEEDING THE SCOPE OF THE LICENSES GRANTED HEREUNDER.
- Cap on Monetary Liability. EXCEPT AS OTHERWISE PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF DONATELY, ITS SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO DONATELY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11 – General Provisions
- Compliance with Laws. During the term of this Agreement, each Party shall comply with all applicable laws, including but not limited to the Internal Revenue Code and the California Corporations Code as shall from time to time govern nonprofit organizations and the receipt of donations to such organizations in California and the United States of America.
- Applicable Law. Not withstanding anything in this Agreement to thecontrary, the laws of the State of California shall govern the performance and construction of this Agreement and the interpretation of the Parties’ rights and duties without reference to its conflict of laws principles. Any controversy arising out of or related to this Agreement may be submitted before any of the state or federal courts located in the County of San Diego, California, to whose personal jurisdiction and venue each Party hereby irrevocably submits.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, shall be effective unless in writing signed by both Parties.
- Notices. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested, the address of the other Party first set forth above, or to such other address as a Party may designate by written notice to the other Party no less than thirty (30) days prior to change of such address, (iii) by overnight courier, or (iv) by fax with confirming letter mailed under the conditions described in (ii) above.
- Force Majeure. Except for the obligation to make payments, non performance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, terrorism, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the reasonable control of, and is not caused by, the negligence of the non-performing Party.
- Non-assignability and Binding Effect. You may not assign this Agreement to any third party without the prior written consent of Donately, and any attempt to do so in violation of the foregoing shall be deemed null, void and of no effect; provided that you shall be free to assign this Agreement in whole to any successor in interest to all or substantially all the assets or business pertaining to the subject matter hereof whether by merger, acquisition or consolidation or otherwise. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
- Legal Expenses. The prevailing Party in any legal action brought by one Party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
- Specific Performance; Injunctive Relief. Your breach of any obligation under Section6 of this Agreement or regarding the use, duplication, modification, transfer or confidentiality of any Confidential Information, documentation or otherwise shall entitle Donately to injunctive, specific performance or other equitable relief, all without need of bond or undertaking of any nature, Licensee hereby specifically acknowledges that Donately’s remedies at law under such circumstances would be inadequate.
- Authorizations. During the term of is Agreement, you shall, at your own expense, make, obtain, and maintain in force at all times during the Term of this Agreement, all filings, registrations, reports, licenses, permits and authorization from any private or governmental agency which are necessary for you to exercise your rights and perform your obligations hereunder (“Authorizations”). Donately shall provide you, at your expense, with such assistance as you may reasonably request in making or obtaining any such Authorizations. In the event that the issuance of any Authorization is conditioned upon an amendment or modification to this Agreement which is unacceptable to Donately, Donately shall have the right to terminate this Agreement immediately effective without notice and without liability or further obligation whatsoever to you.
- Independent Contractors. The relationship between the Parties, established by this Agreement, is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint-venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow you to create or assume any obligation on behalf of Donately for any purpose whatsoever.
- Approvals and Enforceability. You hereby represent and warrant that no Authorization or other consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery and performance of this Agreement. Additionally, you further represent that you have the legal authority to bind the corporation or entity on whose behalf you are obtaining the Software.
- Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision (or portion thereof) will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.