BY REGISTERING FOR OR USING THE DONATELY SOFTWARE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING ALL POLICIES), EACH AS MAY BE MODIFIED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE SERVICE.

This Term of Service Agreement ("Agreement") is entered into and effective as of the date of account registration with Donately, ("Effective Date") by and between Donately Corporation, a California Corporation, with offices located at 629 J Street, STE 207, San Diego, CA 92101, ("Licensor"), and you the account holder, ("Licensee") (each of Licensor and Licensee a "Party" and collectively the "Parties").

Recitals

  1. Licensor designs, develops and licenses Software as a Service products ("Software") designed to enable organizations to accept donations directly through the website of the organization, or through the Donately website.

  2. Licensee desires to obtain a license to integrate Licensor's Software into the website of Licensee and Licensor desires to grant such rights to Licensee, in each case, subject to the terms and conditions of this Agreement.

NOW THEREFORE, the Parties agree as follows:

1 - Grant of Rights

  1. Software. Subject to the terms and conditions set forth herein, Licensor hereby grants Licensee a limited, world-wide, non-exclusive, fee based, non­ transferable (except as set forth under Section 11.6) right and license, under Licensor's Intellectual Property Rights, to (i) use, in the form in which such Software is delivered by the Licensor only, the Licensor's Software onto the website of the Licensee, and (ii) utilize such Software only for the purpose of receiving donations made for the benefit of the Licensee.

  2. Excluded Rights & Covenant Not to Sue. Subject to the terms and conditions of this Agreement, Licensor hereby:

    • Covenants not to sue Licensee and its affiliates and parent companies under Licensor's Intellectual Property Rights based on Licensee's exercise of its rights. under Section 1; and

    • Covenants not to sue any end user that donated to Licensee using Licensor's Software.

    The covenants made to Licensee is personal to Licensee is non-transferable and shall automatically and immediately terminate upon an assignment of this Agreement by Licensee (including pursuant to Section 11.6 below) whether such assignment occurs by merger, acquisition, consolidation of Licensee or otherwise.

  3. Limited Rights of Licensee. Licensee's obtainment and/or use of the Software does not grant Licensee any rights of ownership over 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) the Licensee conforms to the terms and conditions of this Agreement, and (ii) until the termination of this Agreement.

  4. Delivery. The relevant Software shall be delivered directly from the Licensor to Licensee.

  5. No Other Rights. Except for the limited rights expressly granted under this Agreement, neither this Agreement nor Licensee's 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 Licensor's Intellectual Property Rights (as defined below) and Licensor retains all of its, rights, title and interest in and to the Software, Licensor's Confidential Information, Documentation and Marks (as defined below), including without limitation, all worldwide right, title and interest in and to (i) all letters patent and all filed, pending applications for letters patent, 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

  1. 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.

  2. Taxes. The fees hereunder 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. Licensee shall pay, or reimburse Licensor for all such taxes imposed on Licensee or Licensor, provided, however, that Licensee shall not be liable for any taxes based on Licensor's net income. When Licensor has the legal obligation to collect such taxes, the appropriate amount shall be paid by Licensee unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority. Licensee shall promptly notify Licensor of any amendment or revocation of such certificate and will hold Licensor 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 - Additional Obligations of Licensee

  1. Performance Obligations. Licensee shall not alter, re-label or change the Software as provided by the Licensor and as may be amended at any time at the sole discretion of Licensor, without the prior written consent of Licensor.

  2. Books and Records. Licensee shall keep and maintain accurate books and records as reasonably necessary for verification of transaction payments pursuant to this Agreement.

  3. Terms and Conditions of Card Processor (Stripe). Licensee shall at all times conform to the terms and conditions of credit card processing as defined by the Stripe.com, which terms and conditions may be amended from time-to-time at the sole discretion of Stripe.

4 - Limited Warranty

  1. Limited Warranty. Licensor agrees to provide Software which operates for the purpose of permitting the Licensee to accept donations through the website of the Licensee. Licensor shall have no obligation to provide warranty services if a defect is caused by a malfunction of non-Licensor hardware or software, or the failure to install and use any mandatory bug fixes or other software code provided free of charge by Licensor to Licensee, 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 Licensor, by operator error or by misuse of Software.

  2. 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 licensee and not to any donor or any other third party. no waiver, alteration or modification of this warranty shall be binding against licensor unless in writing as a separate amendment hereto and signed by an executive officer of licensor.

  3. Licensee Warranty Limitations. Licensee shall indemnify, defend and hold Licensor harmless from any claim or liability arising out of or relating to any grant by Licensee of any representation or warranty of greater scope or protection (including the limited remedy, exclusions, and limitation of liability) in excess of those granted by Licensor to Licensee as explicitly set forth in this Section 4.

5 - Terms and Termination

  1. Terms.This Agreement shall continue in force while the Licensee continues to use the Software provided by Licensor as defined in this agreement. This agreement may be terminated at any time by either party. Termination by Licensee is exercised by the Licensee submitting a request to close their account with Licensor. Termination by Licensor is exercised by account closure, which will prevent the processing of future donations by Licensee.

  2. 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.

  3. Survival. The provisions of Section 1.5, 3.1 ,3.2, 4.2, 5.5, 5.7 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.

  4. 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 Licensor or Licensee. Termination shall not, however, relieve either Party of obligations incurred prior to the termination.

6 - Intellectual Property Notices and Confidentiality

  1. Intellectual Property Notices. Licensee agrees not to remove and to retain all proprietary Marks, legends and patent and copyright notices that appear on or display in connection with the Software, documentation and Confidential Information delivered to Licensee by Licensor and all whole or partial copies thereof.

  2. Confidentiality.

    • 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, 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 insure 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.
  3. Source Code. Licensee shall not 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

  1. Use. During the Term, Licensee shall have the right to use the Marks of Licensor to advertise and identify that the Licensee's website donation program is administered with the Software. Licensee shall use such Marks in accordance with Licensor's usage in the Software and shall not modify or delete such Marks as set forth in the Software without the prior written consent of Licensor, in its sole discretion.

  2. Ownership. Except for the limited rights provided for in this Section 7, nothing contained in this Agreement shall grant the Licensee any right, title or interest in Licensor's Marks. At no time during the Term shall Licensee challenge or assist others in challenging Licensor's rights in and to the Licensor 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 Licensor Marks will inure solely to Licensor and Licensee hereby irrevocably assigns to Licensee all such right, title and interest, if any, in any such Marks and agrees to provide Licensor reasonable assistance in Licensor's registration of its Marks in those jurisdictions in which the Licensee Products will be distributed.

  1. Indemnification. Licensor will defend or, in its sole discretion, settle, at its expense, any action or claim brought against Licensee to the extent that it is based on an allegation that the Software as delivered hereunder or use of the Licensor Marks as authorized hereunder (collectively, for purposes of this Section 8 only, "Product"), in accordance with the terms hereunder, infringes any Intellectual Property Right of any third party recognized under the laws of the Territory (each a "Claim"), and Licensor will indemnify Licensee from any amounts agreed to in settlement with respect to such Claim, or any costs, damages and fees finally awarded against Licensee in such Claim which are attributable to such Claim. Licensor shall be relieved of the foregoing indemnification obligations to the extent Licensee fails to (i) notify Licensor promptly in writing of any Claim, (ii) permit Licensor to defend against, compromise or settle such Claim or (iii) provide all available information and assistance (at Licensor's expense) reasonably necessary for Licensor to defend against, compromise or settle such claim. Licensor shall not be liable for any costs, damages or fees incurred by Licensee on such action or claim unless authorized in writing in advance by Licensor.

  2. Remedies. Should any Product become subject to an injunction which prohibits Licensee's of the Software, or in Licensor's reasonable opinion be likely to become the subject of a Claim, Licensor may at Licensor's sole discretion (i) procure for Licensee, at no cost to Licensee, the right to continue to use the Product, (ii) replace or modify the Product at no cost to Licensee, to make such Product non-infringing, provided that the replacement or modified Product provides substantially similar function and performance or (iii) if neither (i) or (ii), in the reasonable judgment of Licensor, are commercially reasonable, terminate the right to use the Software. Licensor represents and warrants that as of the date of execution of this Agreement, Licensor is not aware of any Claims or potential Claims.

  3. Limitation of Liability. Licensor 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 Licensor, where such Claim arises solely as a result of such combination; (ii) any alteration or modification of any Product not performed by Licensor, (iii) the failure to install mandatory Software updates and/or fixes or other software code provided free of charge to Licensee and/or its 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.

  4. Entire Liability. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF LICENSOR AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY AND LICENSOR SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR MISAPPROPRIATION.

  5. Notification of Unauthorized Use. Licensee shall promptly notify Licensor in writing upon its discovery of any unauthorized use or infringement of the Products or Licensor's Intellectual Property Rights with respect thereto. Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate and provide full information and assistance to Licensor (at Licensor's expense) and its counsel in connection with any such action or proceeding.

9 - Indemnification by Licensee

Subject to Licensor's indemnification obligation pursuant to Section 8, Licensee shall defend, or at its sole option, settle, at its sole expense, any demand, claim or action brought against Licensor to the extent that such demand, claim or action is based on an allegation by a third party based on the actions or omissions of Licensee with respect to this Agreement or Licensee's use of the Software and Licensee will indemnify Licensor from any costs, damages and fees (including attorney's fees) incurred by, settled for or awarded against Licensor from such claim. Licensee shall be relieved of the foregoing indemnification obligations to the extent Licensor fails to (i) notify Licensee promptly in writing of any Claim, (ii) permit License to defend against, compromise or settle such Claim or (iii) provide all available information and assistance (at Licensee's expense) reasonably necessary for Licensee to defend against, compromise or settle such claim. Licensee shall not be liable for any costs, damages or fees incurred by Licensor on such action or claim unless authorized in writing in advance by Licensee. Licensee will not agree to a settlement that would adversely affect Licensor's interests without Licensor's express written consent.

10 - Limitation of Liability

  1. 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, Paragraph C, Section 6, Paragraph B, or Sections 8 or 9 (Indemnification) or Based on Licensee Exceeding the Scope of the Licenses Granted to It Hereunder.

  2. Maximum Liability. With the Exception of Section 8 or a Breach by Licensee of the Scope of the Licenses Granted to It Here­ Under, to the Maximum Extent Permitted Under Applicable Law, the Entire Liability of One Party, Its Affiliates, Agents, Representatives, Employees and Suppliers to the Other Party or Any Other Third Party for Damages or Alleged Damages Arising out of This Agreement, Whether Based in Contract (Including Breach of Warranty), Tort (Including Strict Liability and Negligence) or Any Other Legal or Equitable Theory, Shall Not Exceed in the Aggregate With Respect to the Software, the Amount Received by Licensor from Licensee for the Relevant Software Giving Rise to Such Damages, Depreciated on a Straight Line, Three (3) Year Basis Commencing on the Date of Licensee's Payment Therefore.

11 - General Provisions

  1. 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.

  2. Applicable Law. Notwithstanding anything in this Agreement to the contrary, 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.

  3. 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 nor any waiver of any rights under this Agreement, shall be effective unless in a writing signed by both Parties.

  4. 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.

  5. Force Majeure. Except for the obligation to make payments, nonperformance 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.

  6. Non-assignability and Binding Effect. Neither Party may assign this Agreement to any third party without the prior written consent of the other Party and any attempt to do so in violation of the foregoing shall be deemed null, void and of no effect; provided that either Party 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 of a Party, 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.

  7. 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.

  8. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

  9. Specific Performance; Injunctive Relief. Licensee's breach of any obligation under Section 6 of this Agreement or regarding the use, duplication, modification, transfer or confidentiality of any Confidential Information, documentation or otherwise shall entitle Licensor to injunctive, specific performance or other equitable relief, all without need of bond or undertaking of any nature, Licensee hereby specifically acknowledges that Licensor's remedies at law under such circumstances would be inadequate.

  10. Authorizations. During the term of is Agreement, Licensee shall, at its 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 Licensee to exercise its rights and perform its obligations hereunder ("Authorizations"). Licensor shall provide Licensee, at Licensee's expense, with such assistance as Licensee 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 Licensor, Licensor shall have the right to terminate this Agreement immediately effective without notice and without liability or further obligation whatsoever to Licensee.

  11. Independent Contractors. The relationship of Licensor and Licensee 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 Licensee to create or assume any obligation on behalf of Licensor for any purpose whatsoever.

  12. Approvals and Enforceability. Licensee hereby represents and warrants 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.

  13. 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.

  14. Amendments. Licensor shall have the right to revise, alter or amend this Agreement at any time upon the giving of thirty (30) days notice to Licensee. Should Licensee not consent to the revisions, alterations or amendments, Licensee's sole remedy shall be to notify Licensor of its lack of consent and to immediately discontinue use of the Software.


This Document was last updated August 2, 2016