Terms of Service

GiveKit General Terms of Service

These GiveKit General Terms of Service (these “Terms of Service“) set forth the terms and conditions upon which GiveKit, Inc, directly or through any of its affiliated companies including, without limitation, (“GiveKit“, “we” or “us”) offers you, our end users ( “Customer“ , “partners”, “you” or “your” ) , access to GiveKit’s proprietary cloud-based software-as-a service platform ( s ) made available through the website located at uniform resource locator www.givekit.org/termsofservice (the “Site”) and/or any GiveKit mobile application (each a “GiveKit Product” and, collectively, the “GiveKit Products”) and related Services (as defined below). Access to the GiveKit Products and Services is provided solely in accordance with, and subject to, these Terms of Service, the Sales Order (as defined below), and any additional services agreement, general or product specific terms of service or other applicable terms and conditions entered into by you and GiveKit or any of its affiliated companies in writing or otherwise as made available by GiveKit through the Site from time to time (collectively, the “Additional Terms”).

This is a legally enforceable contract. By submitting or otherwise agreeing to a Sales Order, clicking “I Agree” or by accessing or otherwise using the GiveKit Products, you agree to be bound by these Terms of Service, the Sales Order, and any applicable Additional Terms, all of which are hereby incorporated into these Terms of Service by reference. If you do not agree to these Terms of Service and such Sales Order and Additional Terms, do not access or use the GiveKit Products.

If you are currently, as of the date of GiveKit posting these Terms of Service on the Site, under contract with GiveKit for any GiveKit Products, a “Current Contract”), and such Current Contract limits GiveKit’s ability to modify or update the terms of such Current Contract during the term of such Current Contract or any other period of time, then your Current Contract shall remain in effect under the terms thereof only for the duration of such term or period, and thereafter upon renewal of such Current Contract or the conclusion of such period, whichever is earlier, these Terms of Service shall supersede your Current Contract and govern all use of the GiveKit Products, and your continued access to or use of the GiveKit Products constitutes your immediate acceptance of these Terms of Service. Notwithstanding the foregoing, if your Current Contract permits GiveKit to modify or update the terms of such Current Contract during the term of such Current Contract, then, notwithstanding anything to the contrary in your Current Contract, these Terms of Service shall supersede your Current Contract and govern all use of the GiveKit Products at the earliest period permitted under your Current Contract, and your continued access to or use of the GiveKit Products constitutes your immediate acceptance of these Terms of Service. For clarity, if your Current Contract is currently in a month-to-month term and limits GiveKit’s ability to modify or update the terms of such Current Contract during such a term, then your Current Contract shall remain in effect until the end of the current month, and thereafter these Terms of Service shall supersede your Current Contract and govern all use of the GiveKit Products, and your continued access to or use of the GiveKit Products constitutes your immediate acceptance of these Terms of Service.

From time to time, GiveKit may modify these Terms of Service, effective immediately upon posting such modified Terms of Service on the Site. While we may note the date of the last update to these Terms of Service on the Site and provide additional notice of such modifications, you acknowledge and agree that you must periodically check the Site for any updates. For any Sales Orders that are entered into after the time of us posting any modifications to these Terms of Service, such new Sales Orders shall be subject to the modified Terms of Service. For any Sales Orders that were in effect at the time of us implementing such modifications that do not specify a subscription or service term length or other minimum subscription or service period, your continued access to or use of the GiveKit Products constitutes your immediate acceptance of the modified Terms of Service. For any Sales Orders that were in effect at the time of us implementing such modifications that specify an initial subscription or service term length or other minimum subscription or service period, such modifications to these Terms of Service shall become effective for any renewal period under such Sales Orders. Except to the extent expressly contemplated by these Terms of Service, no other amendment, modification or supplement of any provision of these Terms of Service will be valid or effective unless made in writing and signed by duly authorized representatives of both parties.

DEFINITIONS

1.1 “Affiliate” means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.

1.2 “Agreement” means these Terms of Service along with all Sales Orders and all applicable Additional Terms, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference.

1.3 “Customer Data” means all data and information submitted by Customer or its Authorized Users to GiveKit through the GiveKit Products.

1.4 “Deliverable(s)” means deliverables specifically identified in any Sales Order under this Agreement, as applicable.

1.5 “Documentation” means any user guides, technical manuals, operating rules, acceptable use policies and other materials provided or made available by GiveKit for use by Customer.

1.6 “Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.

1.7 “GiveKit Property” means the GiveKit Products, Documentation, and Output (excluding Customer Data), all as defined herein.

1.8 “Output” means the information and data, excluding Customer Data, developed or collected by GiveKit or otherwise generated by, residing in or resulting from the GiveKit Products or Services.

1.9 “PCI DSS” means the Payment Card Industry Data Security Standards, available at https://www.pcisecuritystandards.org/pci_security/, designed to ensure that entities that accept, process, store, or transmit payment card information and receive payments maintain a secure environment.

1.10 “Personal Information” means any piece of information that, individually or in combination, does or can identify a specific individual, or from which a specific individual may be identified, contacted or located.

1.11 “Sales Order” means a written or electronic sales order, processing fee agreement, client agreement, or other subscription or ordering document agreed by both parties through GiveKit’s hubspot.com system or otherwise in writing that sets forth the commercial terms, the applicable GiveKit Products licensed by Customer and Services to be provided to Customer, and any other additional terms and conditions of the GiveKit Products and Services to be provided by GiveKit to Customer under this Agreement.

1.12 “Services” means, collectively, the Support Services and any applicable Professional Services as set forth in a Sales Order hereunder, in each case including any Deliverables provided in connection therewith.

LICENSE AND RESTRICTIONS

2.1 Limited License. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, GiveKit grants to the Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable license, during the applicable Sales Order Term, to access and use, for internal purposes only, the GiveKit Products; and use the Documentation to facilitate the use of the GiveKit Products, in each case in accordance with the applicable Documentation, any applicable Additional Terms, and the terms and conditions of this Agreement (the “License”). For purposes of these Terms and Conditions, any references to the “GiveKit Products” will include and any associated software, code, application programming interfaces, user interfaces, and other applications that are made available to you by GiveKit, along with any Updates (as defined below) thereto made available to you by GiveKit

2.2 License Restrictions. Customer will not (and will not permit any third party to): (a) make the GiveKit Property or Services available to, or use any GiveKit Property or Service for the benefit of, anyone other than Customer or its Authorized Users (as defined below), unless expressly stated otherwise in a Sales Order or the Documentation or Additional Terms for the applicable GiveKit Products or Services, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any GiveKit Property or Service, or include any GiveKit Property or Services in a service bureau or outsourcing offering, (c) use any GiveKit Property 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 any GiveKit Property or Service to store or transmit any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, (e) interfere with or disrupt the integrity or performance of any GiveKit Property or Service (or third party data contained therein), (f) attempt to gain unauthorized access to any GiveKit Property or Service or its related systems, networks or data, (g) permit direct or indirect access to or use of any GiveKit Property or Service in a way that circumvents a contractual usage limit or security mechanism, procedure, or protocol, or to any of GiveKit’s (or GiveKit’s licensors’) Intellectual Property Rights, (h) copy any GiveKit Property or Service or any part, feature, function or user interface thereof, (i) use the GiveKit Property or any Service other than for its intended purpose, in strict accordance with the Documentation and as allowed by this Agreement, (j) frame or mirror any part of any GiveKit Property, other than as expressly permitted in the Documentation, (k) reverse engineer any GiveKit Property or Service (except to the extent such restriction is permitted by applicable law); or (l) use the GiveKit Products to generate or facilitate unsolicited bulk commercial email.

2.3 Updates. GiveKit reserves the right to make updates, modifications and enhancements of the GiveKit Products and Documentation (“Updates”) in its discretion during the Term provided that the terms and conditions of this Agreement shall continue to apply to any such Updates made available to Customer by GiveKit. Such Updates may be completed without prior notice; provided that, GiveKit will use commercially reasonable efforts to notify Customer in advance of any such Updates that are reasonably likely to materially impact the GiveKit Products whenever reasonably possible. Customer acknowledges and agrees that such Updates may not be compatible with its website and that its website may cease to function following the Update. In most cases, GiveKit will be unable to rollback or otherwise reverse the Updates. Customer agrees that (a) it is solely responsible for adjusting its website for compatibility with the GiveKit Products following any Updates; and (b) GiveKit shall not be liable for any loss or damage Customer or any Authorized User may experience as a result of such Updates.

SERVICES

3.1 SLA and Support Services. GiveKit’s service level commitments are set forth in the GiveKit SLA and Security Policy available at www.nonprofitshq.com/security/ (or such successor URL determined by GiveKit) (the “SLA and Security Policy”). The SLA and Security Policy, as may be updated from time to time in accordance with the terms thereof, is incorporated into this Agreement by reference as Additional Terms. In addition, subject to the terms and conditions of this Agreement and the payment of all applicable Fees, GiveKit may provide additional technical support and maintenance services for the GiveKit Products during the applicable Sales Order Term to the extent indicated in any Additional Terms applicable to the GiveKit Product in accordance with the SLA and Security Policy and such terms (the “Support Services”).

3.2 Professional Services. From time to time, GiveKit and Customer may enter into Sales Orders that relate to implementation services or other professional services in addition to the Support Services to be provided by GiveKit (“Professional Services”). Each Sales Order will set forth the Professional Services to be provided together with the applicable Fees, Deliverables, milestones and other pertinent information related to the scope of such Professional Services. Except to the extent expressly set forth otherwise in the applicable Sales Order, GiveKit retains ownership of all Intellectual Property Rights in, to or associated with the Professional Services. Any unused Professional Services hours on a Sales Order shall expire upon renewal of the contract and shall not roll over to any contract renewal period with no further action required of either party. Customer shall not be entitled to a refund, or any credit toward additional or other services, for any unused portion of the fees paid for any unused Professional Services hours.

3.3 Information Security. GiveKit’s information security controls, policies and procedures are described in the SLA and Security Policy.

3.4 Privacy. Each Party acknowledges and agrees that, subject to the terms and conditions of this Agreement, the use of the GiveKit Products and Services by Authorized Users may result in the Parties having access to Personal Information, particularly Personal Information of your constituents and/or customers.

3.4.1 To the extent that Customer Data includes non-public personal information (“NPI”) as defined by the Gramm-Leach-Bliley Act (“GLBA”), both Customer and GiveKit understand and acknowledge that to the extent it qualifies as a nonaffiliated third-party under the GLBA it shall, (a) not use or disclose NPI for any purpose other than to perform its obligations under this Agreement; (b) implement appropriate administrative, technical, and physical safeguards designed to reasonably ensure the security and confidentiality of the NPI, protect against any anticipated threats or hazards to the security or integrity of the NPI, and protect against unauthorized access to or use of the NPI that could result in substantial harm to any consumer; and (c) for as long as such Party has NPI, provide and maintain appropriate safeguards for the NPI in compliance with this Agreement and the GLBA.

3.4.2 To the extent that Customer Data includes payment card information covered under PCI-DSS or Customer otherwise uses the GiveKit Products in connection with the processing of payments as further described in the Additional Terms, Customer understands and agrees that it is the “merchant” per PCI DSS guidelines and is required to comply with the PCI DSS requirements. GiveKit will provide GiveKit Products and Services to Customer, including a PCI Compliance Program to assist Customer in complying with PCI DSS compliance requirements, in accordance with this Agreement and the Privacy Policy.

3.4.3 To the extent that Customer uses the GiveKit Products in connection with any ACH or “e-check” –related services provided by GiveKit to Customer as may be further described in the Documentation or Additional Terms, Customer is required to and shall understand and comply with the National Automated Clearing House Association (“NACHA”) Rules (“NACHA Rules”). Copies of the NACHA Rules may be obtained through NACHA.org.

3.4.4 Customer acknowledges and agrees that it has read and hereby agrees to GiveKit’s privacy policy, made available by GiveKit at www.nonprofitshq.com/privacy (or such successor URL determined by GiveKit) (as may be updated from time to time in accordance with the terms thereof, the “Privacy Policy”), which addresses the parties rights and responsibilities with respect to Personal Information and other data in connection with the access to and use of the GiveKit Products. The Privacy Policy is incorporated into this Agreement by reference as Additional Terms.

3.4.5 To the extent such functionality is provided through the GiveKit Products, Customer may only use the GiveKit Products to send email to recipients that gave Customer permission to send email to them as required by the CAN-SPAM Act. Customer shall honor opt-out requests from email recipients. GiveKit may restrict Customer’s ability to send email or terminate your account if an unusual amount of email traffic is marked as SPAM or if GiveKit is contacted by an ISP indicating that your account is sending unsolicited email.

ACCESS AND USE

4.1 Authorized Access and Use. You must provide GiveKit with current, complete and accurate information (including your email address) as requested in the Sales Order or otherwise prompted by the applicable registration form in order to register for use of the GiveKit Products. You must identify one or more employees of Customer who will be authorized by you to have access to and use the GiveKit Products on behalf of Customer, subject to any limitations set forth in the applicable Sales Order or Privacy Policy (“Authorized Users”). Additionally, all subsequent user profiles for the GiveKit Products created by the Customer and/or created by a GiveKit employee at the instruction of the Client shall be deemed an “Authorized User” for purposes of this Agreement. Customer will not permit Authorized Users to access and use the GiveKit Products except solely during the Sales Order Term specified in the applicable Sales Order. GiveKit has no obligation to verify the identity of any person who gains access to the GiveKit Products through Customer’s account. You are solely responsible for monitoring your Authorized Users’ access to and use of the GiveKit Products, and for any failure by any Authorized User to comply with this Agreement; a failure to comply with this Agreement by an Authorized User is a failure by Customer. Customer shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the GiveKit Products. You are responsible to maintain the privacy and security of your Authorized Users’ login information, including user names and passwords, and not allow others to use the login information. You will notify us immediately of any breach in secrecy, security, or unauthorized use or theft of your login information (and provide properly documented evidence as reasonably requested by us). You are responsible for any and all actions taken by any person that has access to your account. You agree to immediately notify GiveKit of any potential breaches of the login information and of the departure of any employee with access to the login information.

4.2 Customer’s Security Measures. Customer will implement and maintain commercially reasonable security procedures for the transmission of Customer Data to the GiveKit Products. Customer is solely responsible for the security within the Customer’s technical systems and environments integrated with or otherwise used in connection with the GiveKit Products and Services. Customer will notify GiveKit promptly upon becoming aware of any suspected security breach regarding transmissions to or from the GiveKit Products.

4.3 Suspension of Access. GiveKit may in its discretion suspend Customer’s access to, or reasonably restrict any use of, the GiveKit Products temporarily, in whole or in part, if, and so long as, in GiveKit’s sole judgment, there is a security risk that may interfere with the proper continued provision of the GiveKit Products or Services or Customer is misusing the GiveKit Products, has breached this Agreement, or is or may be engaged in illegal activity. GiveKit will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat at Customer’s cost.

4.4 Third Party Offerings. GiveKit may directly or indirectly use certain third party providers (“Third Party Providers”), provide links to websites or applications and access to or integrations with content, products, services, utilities, software, hardware, systems, networks, connections, data, content, documents or other materials from third parties, including other users, advertisers, affiliates and sponsors (“Third Party Materials”). Customer acknowledges and agree that (a) access and use of Third Party Materials may be subject to additional terms and conditions as made available by such Third Party Providers and Customer shall comply with all of your obligations, relating to Third Party Providers and Third Party Materials under the terms of any agreement with such Third Party Providers and/or the providers of such Third Party Materials, (b) GiveKit may, at any time in its discretion, modify, cancel or discontinue any available interoperability or integrations for the GiveKit Products and Services with any Third Party Materials, or any other support or assistance provided by GiveKit in connection with any Third Party Providers or Third Party Materials, and (c) GiveKit is not responsible for the availability or content of any such Third Party Materials, including any related opinions, advice, statements, advertisements or integrations. Further, you represent and warrant to GiveKit that you shall agree to and comply with Third Party Providers’ terms and conditions and shall only use any such Third Party Materials in accordance with the independent rights you have directly secured from the providers of such Third Party Materials.

FEES AND PAYMENT TERMS

5.1 Fees. Customer agrees to pay the fees indicated in each applicable Sales Order (the “Fees”) in accordance with the terms and conditions set forth in the Sales Order and this Article 5.

5.2 Fee Increases. Unless otherwise expressly set forth in the applicable Sales Order in a provision specifically referencing and overriding this Section, Fees may be increased or otherwise modified from time to time by GiveKit. Any such increases or modifications to the Fees shall take effect thirty (30) days following notification to you via email (the “Notification Period”). If you do not agree to such increased or modified Fees, you may terminate the Sales Order Term for the applicable GiveKit Products and/or Services for which the Fees have been increase or modified by providing notice to GiveKit during the Notification Period. You acknowledge and agree that your continued access to or use of the GiveKit Products after the Notification Period constitutes your immediate acceptance of any such modified Fees.

5.3 Taxes. All Fees do not include any applicable taxes, and Customer will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of this Agreement (“Taxes”) whether imposed on Customer or GiveKit; provided, however, that Customer shall not be required to pay any Taxes applicable to GiveKit’s net income. If GiveKit pays any Tax that is payable by Customer in accordance with the foregoing, Customer shall reimburse GiveKit for the amount of such Tax upon receiving an invoice therefor.

5.4 Payment Terms. All Fees, including subscription Fees, shall be due and payable by Customer within thirty (30) days after their respective invoice date from GiveKit unless otherwise expressly modified by the applicable Sales Order or Additional Terms for a particular GiveKit Product or Service. All Fees are non-refundable except as otherwise explicitly stated in the applicable Sales Order or these Terms of Service.

5.5 Suspensions. GiveKit reserves the right to suspend delivery of the Services under the License if Customer fails to timely pay any undisputed amounts owed to GiveKit under these Terms of Service, subject to the following notice provision: GiveKit shall notify customer in writing of any overdue amounts, and Customer’s failure to bring the account current within thirty (30) days of receiving the delinquency notice can result in immediate suspension without further action required of either party. Suspension of the License and Services shall not release Customer of its continuing payment obligations under these Terms of Service. Any suspended accounts may, at GiveKit’s discretion, be charged a $200 fee upon reactivation.

5.6 Payment Processing/Settlement. GiveKit offers Customers the option to process payments in connection with their use of the GiveKit Products through GiveKit’s Product located in the United States. If you choose to process payments using GiveKit or, as offered by GiveKit, you must agree to the applicable Additional Terms and pay the applicable Fees in connection with such GiveKit Products. In any event, Customer shall be responsible for reconciliation services, including all charge backs (credit card adjustments due to Transaction cancellation) and associated chargeback fees of any kind whatsoever against any and all merchant accounts established by GiveKit for the purpose of consummating Transactions conducted on behalf of Customer through the GiveKit Products as may be further described in the Additional Terms. As used in this Agreement, except as otherwise specific in any Sales Order or Additional Terms, “Transactions” means all online financial transactions conducted on Customer’s behalf through the use of any GiveKit Products. Any assistance provided to Customer by GiveKit related to reconciliation services shall be billed at GiveKit’s then current hourly rates.

5.7 Late Fees. If any Fees are not paid by Customer by the due date, GiveKit may, without prejudice to any other right or remedy, charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by Applicable Law, from the due date for payment to the date of actual payment.

5.8 No Setoff; No Refunds. All amounts due under this Agreement to be paid in full by Customer to GiveKit and Customer will not be entitled to assert any credit, set-off or counterclaim against GiveKit in order to justify withholding payment of any such amount in whole or in part. For the avoidance of doubt, Fees assessed on a periodic basis (e.g., annually) shall be payable by Customer throughout the applicable Sales Order Term, in accordance with this Agreement, regardless of whether Customer has used any GiveKit Property or Services. You acknowledge and agree that all payment obligations and fees and charges paid or payable by you under these Terms of Service are non-cancellable and non-refundable for any reason.

PROPRIETARY RIGHTS

6.1 Ownership of GiveKit Property. GiveKit owns and shall retain all ownership right, title, and interest in and to the GiveKit Property and all Intellectual Property Rights embodied therein or associated therewith. Customer shall have no right, title, or interest in or to the GiveKit Property other than the limited license rights expressly set forth in this Agreement.

6.2 Ownership of Customer Data. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein. GiveKit shall have no right, title, or interest in or to the Customer Data other than the limited license rights expressly set forth in this Agreement.

6.3 License to Customer. Subject to the terms and conditions of this Agreement, GiveKit hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Output and, unless otherwise expressly set forth in the applicable Sales Order, any Deliverables, provided or otherwise made available to Customer by GiveKit in connection with this Agreement for Customer’s internal business purposes in accordance with the applicable Documentation and Sales Order.

6.4 License to GiveKit.

6.4.1 General. Customer hereby grants to GiveKit and its Affiliates a fullypaid up, nonexclusive, irrevocable, transferrable, worldwide license to process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Customer Data during the Term in connection with the performance of GiveKit’s obligations under this Agreement and for purposes of developing, maintaining and improving the GiveKit Property and Services provided to Customer under this Agreement.

6.4.2 Aggregated Data License. Without limitation of Section 6.4.1, Customer hereby grants to GiveKit and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferrable, non-exclusive license to process, reproduce, store, distribute, display, modify, translate, transmit, create derivative works from, make available and otherwise use the Customer Data during the Term and after any expiration or termination of this Agreement for purposes of advertising, marketing, developing, maintaining, improving, offering and delivering GiveKit’s current and future products and services as they may be provided to Customer or other customers of GiveKit; provided, however, that all such use of the Customer Data will be aggregated, deidentified and anonymized in a manner that does not designate or identify Customer or its Authorized Users as the source of such data.

6.5 Notification of Unauthorized Use. Customer shall promptly notify GiveKit in writing upon its discovery of any unauthorized use or infringement of the GiveKit Property or GiveKit’s intellectual property rights with respect thereto. GiveKit shall have the sole and exclusive right to bring any infringement action or proceeding against any third party in relation to the GiveKit Property, and Customer shall cooperate and provide full information and assistance to GiveKit and its counsel in connection with any such action or proceeding.

REPRESENTATIONS AND WARRANTIES

7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement; (b) the individual entering into this Agreement on its behalf is authorized to do so; and (c) this Agreement constitutes a valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.

7.2 Additional Representations and Warranties of GiveKit. GiveKit represents, warrants and covenants that: (a) the GiveKit Products will perform substantially in accordance with the applicable Documentation during the applicable Sales Order Term when used in accordance with the terms and conditions of this Agreement, (b) the Deliverables will substantially conform to any applicable requirements set forth in the applicable Documentation or Sales Order during the applicable Sales Order Term, and (c) the Services will be provided in a professional, workmanlike manner with reasonable care and skill, using suitably qualified personnel. For any breach of the foregoing warranties, Customer’s sole and exclusive remedy, and GiveKit’s sole and exclusive liability, is that GiveKit will, at GiveKit’s sole option, (i) make such alterations, modifications or adjustments to the GiveKit Products, Deliverables or Services to cure the breach without materially reducing the features or functionality thereof, (ii) replace the GiveKit Products, Deliverables or Services with a substantially similar substitute that conforms to such warranty; or (iii) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement or the applicable Sales Order and refund to the Customer a pro rata portion of any prepaid Fees for the GiveKit Products for the remainder of the applicable Sales Order Term subsequent to such termination and for any Services not yet performed as of the date of such termination.

7.3 Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to GiveKit that: (a) Customer has collected, compiled and generated all the Customer Data in compliance with all applicable federal, state and local laws, rules, regulations, ordinances, statutes, treaties or orders (“Applicable Laws”) and any applicable privacy policies; (b) the provision of all Customer Data to GiveKit hereunder is in compliance with all Applicable Laws and any applicable privacy policies; (c) Customer has all rights necessary to grant GiveKit the right to use and disclose all Customer Data in accordance with the terms of this Agreement; (d) all Customer Data provided or otherwise made available to GiveKit is accurate and complete; and (e) unless otherwise expressly indicated in the Documentation for the particular GiveKit Product, or to the extent reasonably necessary to utilize the GiveKit Products for their intended purpose in accordance with the terms and conditions of this Agreement, Customer Data shall not contain any Personal Information.

7.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. GiveKit WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY MATERIALS OR OTHER THIRD PARTY SOFTWARE, SERVICE OR HARDWARE GiveKit PROVIDES OR USES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, GiveKit DOES NOT WARRANT THAT (A) THE OPERATION OF THE GiveKit PROPERTY OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) ANY DEFECT OR MALFUNCTION IN THE GiveKit PROPERTY OR SERVICES IS CORRECTABLE OR WILL BE CORRECTED.

7.5 Customer Solely Responsible for Equipment, Hardware and Third Party Materials. Customer acknowledges and agrees that Customer retains sole and exclusive responsibility for any equipment, hardware or other devices used by Customer in connection with the GiveKit Products and Services (“Underlying Equipment”). GiveKit is not responsible for and hereby disclaims all responsibility and liability for the Underlying Equipment or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. Customer acknowledges and agrees that the Underlying Equipment is solely within Customer’s control. Further, GiveKit shall not be liable or responsible for any Third Party Provider or any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto.

INDEMNIFICATION

8.1 Indemnification by GiveKit. GiveKit will indemnify, defend, and hold harmless Customer and its Affiliates and each of their respective officers, directors, employees, and agents (collectively, the “Customer Indemnified Parties”) from and against all thirdparty claims, suits, demands and actions (collectively, “Claims”) brought against the Customer Indemnified Parties, and for all resulting damages, fines, penalties, judgements, assessments, losses, liabilities, costs and expenses (including reasonable attorney and professional fees) (collectively “Losses”) incurred by the Customer Indemnified Parties in connection with such Claims, to the extent resulting from (a) a claim that the GiveKit Property or Services infringe, misappropriate or violate any Intellectual Property Rights of any third party, or (b) GiveKit’s gross negligence, willful misconduct or fraud. Notwithstanding the foregoing, GiveKit shall have no liability to the Customer for any Claim to the extent that such Claim: (i) arises out of Customer’s use of the GiveKit Property or Services other than as expressly permitted under this Agreement and the Documentation or any other unauthorized use, reproduction, or distribution of the GiveKit Property or Services; (ii) arises out of any modification or alteration of the GiveKit Property or Services by anyone other than GiveKit; (iii) arises out of the use of GiveKit Property in combination with any other software or equipment not approved in writing by GiveKit; or (iv) would have been avoided by use of the thencurrent release of any software or if the Customer had followed GiveKit’s reasonable written instructions ((i) through (iv), collectively, “Excluded Claims”).

8.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless GiveKit and its Affiliates and each of their respective officers, directors, employees, agents, licensors and licensees (collectively the “GiveKit Indemnified Parties”) from any and against all Claims brought against the GiveKit Indemnified Parties, or tendered to the GiveKit Indemnified Parties, for the defense and/or indemnification, and for all resulting Losses incurred by the GiveKit Indemnified Parties in connection with such Claims, to the extent resulting from: (a) a claim that the Customer Data, Customer’s provision of the Customer Data to GiveKit in connection with this Agreement or GiveKit’s use of the Customer Data pursuant to the rights granted under this Agreement, fails to comply with Applicable Law or otherwise infringes, misappropriates or violates any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (b) Customer’s use of the GiveKit Property or Services other than Claims subject to indemnification by GiveKit under Section 8.1; (c) Excluded Claims; (d) Customer’s failure to comply with Applicable Laws in connection with its performance under this Agreement, or (e) Customer’s gross negligence, willful misconduct or fraud.

8.3 Indemnification Processes and Procedures. The party seeking indemnification pursuant to this Article 8 (as applicable, the “Indemnified Party”), will promptly notify the other party from whom indemnification is sought (as applicable, the “Indemnifying Party”), in writing, of any Claim for which the Indemnified Party believes that it is entitled to indemnification (provided that the Indemnified Party’s failure to provide such notice or to provide it promptly will relieve the Indemnifying Party of its indemnification obligations only if and to the extent that such failure actually prejudices the Indemnifying Party’s ability to defend the Claims). The Indemnifying Party shall control the defense and settlement of such Claims, provided, however, that the Indemnifying Party shall not agree to any settlement that admits fault of or otherwise creates liability of the Indemnified Party without the Indemnified Party’s express prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). The Indemnified Party shall, at the Indemnifying Party’s sole cost and expense, upon reasonable request of the Indemnifying Party provide reasonable assistance and cooperation with the Indemnifying Party’s defense of such Claims.The Indemnified Party may employ counsel at its own expense to assist it with respect to any such Claim; provided, however, that if such counsel is necessary because of a conflict of interest of the Indemnifying Party or its counsel or because the Indemnifying Party does not assume control, the Indemnifying Party will bear the expense of such counsel.

8.4 Options Upon Infringement Claim. In addition, if any of the GiveKit Property or Services becomes, or in GiveKit’s opinion is likely to become, the subject of an infringement or misappropriation Claim, GiveKit may, at its own expense and option, elect to either:

8.4.1 procure the right for the Customer to continue using the GiveKit Property or Services in accordance with the provisions of this Agreement;

8.4.2 make such alterations, modifications or adjustments to the GiveKit Property or Services so that the infringing product or technology becomes non-infringing without a material reduction in features or functionality thereof;

8.4.3 replace the GiveKit Property or Services with a non-infringing substantially similar substitute; or

8.4.4 if none of the above remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement and refund to the Customer a pro rata portion of any prepaid Fees for the GiveKit Products for the remainder of the applicable Sales Order Term subsequent to such termination and for any Services not yet performed as of the date of such termination.

8.5 Sole Remedy. THIS ARTICLE 8 STATES GiveKit’S ENTIRE LIABILITY, AND THE CUSTOMER’S SOLE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE GiveKit PROPERTY OR SERVICES.

CONFIDENTIALITY

9.1 Definition. “Confidential Information” means all confidential or proprietary information disclosed by or on behalf of a party (in this capacity, the “Disclosing Party”) to the other party (in this capacity, the “Receiving Party”) or its Representatives (as defined below), whether orally, in writing or in any other format or medium, in connection with the performance of this Agreement, that is identified as confidential or is reasonably apparent to be confidential given the nature of such information and the circumstances of disclosure. Confidential Information will not, however, include any information that (a) at the time of disclosure hereunder is generally known to the public or thereafter becomes generally known to the public without breach of this Agreement by the Receiving Party or any of its Representatives, (b) was known to the Receiving Party at the time of its disclosure by or on behalf of the Disclosing Party hereunder without breach of any obligation owed to the Disclosing Party, (c) is received by the Receiving Party or any of its Representatives from a third party without breach of any obligation of confidentiality owed to the Disclosing Party with respect to such disclosure or (d) was independently developed by the Receiving Party or any of its Representatives without reference or use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, (i) the terms and conditions of this Agreement and all Sales Orders and Sales Orders will be deemed the Confidential Information of each party, (ii) the GiveKit Property is the Confidential Information of GiveKit, and (iii) without limitation of the rights granted under Section 6.4, the Customer Data is the Confidential Information of Customer.

9.2 Permitted Use. The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely to accomplish the purpose of this Agreement or as otherwise permitted under the express terms of this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to any third party without first obtaining the written consent of the Disclosing Party, except as otherwise expressly permitted herein; and (c) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care used to protect its own confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. The Receiving Party will be permitted to disclose the Disclosing Party’s Confidential Information to its Affiliates and those of its and its Affiliates’ respective directors, officers, employees, agents, subcontractors and consultants (with respect to a Party, together with such Party’s affiliates, collectively, such Party’s “Representatives”) who need to know such Confidential Information in order to accomplish the purpose of this Agreement; provided, that such persons or entities are bound to the Receiving Party by obligations of confidentiality and non-use with respect to such Confidential Information that are substantially similar to those contained herein. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any of the Receiving Party’s Representatives. The Receiving Party shall notify the Disclosing Party in writing promptly upon learning of any such unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall use all reasonable efforts to mitigate such unauthorized use or disclosure and prevent any further unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, GiveKit shall be permitted to (i) disclose Customer’s Confidential Information, on a limited basis, to GiveKit’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein and (ii) use the Customer Data in accordance with Section 6.4.

9.3 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required pursuant to Applicable Law, or by order of a court or governmental or regulatory body of competent jurisdiction; provided, that the Receiving Party promptly notifies the Disclosing Party of such disclosure in writing and provides reasonable assistance to the Disclosing Party in seeking such protective action as it deems appropriate. Thereupon, the Receiving Party may only disclose such Confidential Information as is legally required and only to an authorized person, entity or agency, to the extent required by Applicable Law and subject to the maximum available confidentiality restrictions.

9.4 Return of Confidential Information. At any time upon the Disclosing Party’s request, the Receiving Party shall, at the Disclosing Party’s sole discretion: (a) return to the Disclosing Party all tangible or electronic Confidential Information of the Disclosing Party then in the possession of the Receiving Party or its Representatives, or (b) destroy all such Confidential Information, including any copies thereof, in accordance with the Disclosing Party’s instructions (and confirm such destruction in writing to the Disclosing Party). Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information disclosed hereunder that are contained in routine system backups or are necessary to fulfill its ongoing obligations or exercise its ongoing rights under this Agreement (including without limitation the rights to Customer Data granted under Section 6.4), subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms of this Section 9.

9.5 Publicity. Customer hereby authorizes GiveKit, in GiveKit discretion, to issue a press release announcing Customer as a customer of GiveKit and to use Customer’s name and logo on GiveKit’s website, customer lists and similar marketing and promotional materials. Subject to the foregoing, neither party will be permitted to use the other party’s name, logo or other proprietary marks or indicia in any other press releases, marketing or promotional materials, or publicity of any kind without the express written permission of the other party.

TERM AND TERMINATION

10.1 Initial Term and Renewal. Each Sales Order shall begin on the effective date indicated in the Sales Order and continue for the initial the term of access to the GiveKit Property as specified in the applicable Sales Order (“Initial Sales Order Term”). At the conclusion of the Initial Sales Order Term indicated in the applicable Sales Order, unless otherwise expressly stated in the Sales Order, each Sales Order shall automatically renew for additional periods equivalent to the Initial Sales Order Term (each, a “Renewal Sales Order Term” and together with the Initial Sales Order Term, collectively, the “Sales Order Term”), unless notice of termination is given at least ninety (90) days prior to the expiration of the Initial Sales Order Term or the thencurrent Renewal Sales Order Term, as applicable. The term of this Agreement continue for so long as any Sales Order Term remains in effect, unless terminated as provided for herein (the “Term”).

10.2 Termination for Cause. In the event that either party is in material breach of the terms of this Agreement, the nonbreaching Party may terminate this Agreement and/or the applicable Sales Order on thirty (30) days prior written notice (or fifteen (15) days in the event of a breach of Customer’s payment obligations hereunder); provided however, that this Agreement or the Sales Order shall not be terminated as provided for herein in the event that the breaching Party cures the breach to the reasonable satisfaction of the nonbreaching Party within such notice period or takes material steps reasonably satisfactory to the non-breaching Party to do so within such notice period.

10.3 Insolvency Event. Either party may terminate this Agreement and all Sales Orders by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for the other party or its property; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.

10.4 Termination Without Cause. GiveKit may terminate this Agreement or any Sales Order for any reason upon ninety (90) days written notice to Customer, provided that Customer shall not be required to pay any future Fees attributable to the remainder of the Sales Order Term after the effective date of such termination without cause.

10.5 Effects of Termination. In the event of any expiration or termination of this Agreement, Customer and its Affiliates shall have no more access to the GiveKit Property, their passwords will become invalid and the Documentation and any GiveKit Confidential Information must, within twenty (20) days, be returned to GiveKit.

10.6 Survival. All rights and obligations that accrued prior to termination or expiration of this Agreement or by their nature are intended to survive the termination or expiration of this Agreement, shall survive expiration or termination of this Agreement, including without limitation the provisions of Sections 1, 2.2, 4.4, 5, 6, 7.4, 7.5, 8, 9, 10.5, 10.6, 11, and 12.

LIMITATIONS OF LIABILITY

11.1 Disclaimer of Damages. IN NO EVENT SHALL GiveKit BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), INCLUDING WITHOUT LIMITATION DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF GiveKit HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Limitation of Liability. EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES AS A RESULT OF GiveKit’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1(A), GiveKit’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO GiveKit UNDER THE SALES ORDER APPLICABLE TO THE CLAIM GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

11.3 Applicability. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Terms of Service
Last Updated: 2/13/2026