1. SERVICES AND SUPPORT
1.1. Subject to the terms and conditions of this Agreement, TGB will provide Customer with access to the services described in the applicable Quote (“Services”), including as may be provided through the internet and certain software code (collectively the “Software”).
1.2. TGB will undertake commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week. Notwithstanding the foregoing, TGB reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to TGB.
1.3. Subject to the terms hereof, TGB will provide reasonable support to Customer for the Services from Monday through Friday US Eastern Time.
1.4. Supplemental Terms: Customer may choose to use the following optional Services by executing a Quote issued by TGB, and only in the event that Customer uses such Services the following Appendices will apply: Appendix A (Stock Donation Support Terms) governs Customer’s use of the Stock Donation Support Services, Appendix B (Credit Card Processing Terms) governs Customer’s use of the Credit Card Processing Services, and Appendix C (DAF Donation Terms) governs Customer’s use of the DAF Donation Services.
1.5. These Terms of Agreement, the applicable Quote, and any applicable Appendices or other attachments hereto will be collectively referred to as the “Agreement”. Defined terms used herein may be defined in the Terms of Agreement or the Quote. TGB may update these terms from time to time by posting a revised version, with such updates effective prospectively from the time of posting. In case of any conflict, these Terms of Agreement (including any applicable Appendices) shall control over the Quote except as explicitly overridden therein.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for time-sharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). Customer will cooperate with TGB in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as TGB may reasonably request. Customer will also cooperate with TGB in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.2. Customer will designate in the Quote an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to TGB.
2.3. Customer hereby agrees to indemnify and hold harmless TGB against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Section 2.1 above.
2.4. Customer will be responsible for maintaining the security of Customer account, passwords and files within Customer’s control.
2.6. Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by Gemini and possibly other third parties (“Third Party Services”). TGB is not responsible for the operation of any Third Party Services about which Customer is made aware nor the availability or operation of the Services to the extent such availability and operation is dependent upon such Third Party Services. Customer is responsible for complying with any applicable Third Party Services terms or conditions that have been provided to Customer. TGB does not make any representations or warranties with respect to Third Party Services or any third party providers about which Customer is aware. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
2.7. Customer will not list on its website any platform or service that provides the same cryptocurrency donation services as the TGB donation form.
2.8. TGB agrees to maintain throughout the Term insurance coverage of the types and limits set forth below: Commercial General Liability of $1M per occurrence/$2M in aggregate, Automobile Liability of $1M per accident, Cybersecurity Liability of $5M, Workers’ Compensation at statutory limits, and Umbrella Liability of $20M.
3.1. Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, TGB may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes. Customer agrees that it will not provide to TGB any Proprietary Information that is not necessary for TGB to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, TGB may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.3. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Except as expressly set forth herein, TGB alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service and Software as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to TGB. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Additionally, TGB will own all data regarding the manner in which the Services are used (i.e., usage data), which for the sake of clarity will exclude Content. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2. TGB will obtain and process certain content/data provided by or on behalf of Customer (“Content”). Customer licenses TGB to use Content only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If TGB receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), TGB may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify TGB from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
4.3. TGB shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided TGB is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; TGB will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by TGB, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by TGB, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify TGB from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from TGB’s indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1. Customer will pay TGB the applicable fees as set forth on the Quote (the “Fees”). All payments will be made in accordance with the Quote. If not otherwise specified, payments will be due within 30 days of invoice and are nonrefundable.
5.2. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Each Party will be responsible for the collection and payment of any taxes in connection with this Agreement. TGB will not collect, deduct, or withhold any taxes on Customer’s behalf, and makes no representation regarding Customer’s potential tax liability.
6.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Quote.
6.2. In the event of any material breach of this Agreement (including any failure to pay), the non-breaching Party may terminate this Agreement prior to the end of the Service Term by giving 30 days (or 10 days in the case of nonpayment) prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such 30-day (or 10-day) period. Either Party may terminate this Agreement, without notice, (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party’s making an assignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business.
6.3. Following expiration or termination of this Agreement, TGB will work with Customer to distribute any applicable remaining donated funds to Customer’s designated bank account(s) within a reasonable period of time. In the following limited situations, TGB is hereby authorized to redirect donated funds intended for Customer to one or more valid 501c3 nonprofit entities: (i) a de minimis amount when the remaining value of the funds does not exceed the minimum fee required to transfer such funds (by way of example only, such fees may be in the range of $5 per transfer for US bank transfers or $25 USD for international transfers), (ii) when TGB, after 90 days of diligently attempting to contact Customer through all reasonable means to notify Customer of the donated funds, and to request instructions on how to finalize the transfer of donated funds does not receive a response from Customer, and (iii) when Customer expressly rejects donated funds.
6.4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CUSTOMER SOFTWARE SECURITY
7.1. TGB represents and warrants that it will not knowingly include, in the Software, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, TGB fails to comply with the warranty in this Section, Customer may promptly notify TGB in writing of any such noncompliance. TGB will, within 30 days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
7.2. TGB agrees to notify Customer within 3 days of any discovery by TGB of any breach or suspected breach or any loss or unauthorized use, disclosure, acquisition of or access to any Customer’s data of which TGB becomes aware (any such breach or suspected breach being referred to herein as a “Data Breach”). TGB shall promptly take all appropriate or legally required notification and corrective actions, and shall cooperate fully with Customer in all reasonable and lawful efforts to prevent, mitigate or rectify such Data Breach.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. TGB (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROVISION OR USE OF THE SERVICES OR SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TGB HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO TGB HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by TGB are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either Party except with the other Party’s prior written consent, except in the case of a merger, corporate reorganization, or a transfer of all or substantially all of the assets of the assigning, transferring, or sublicensing party. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind TGB in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. TGB will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of New York, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in New York County, New York, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either Party may seek injunctive relief in any court of competent jurisdiction. TGB is permitted to disclose that Customer is one of its customers, unless otherwise instructed by Customer in writing.
APPENDICES: SUPPLEMENTAL TERMS FOR OPTIONAL SERVICES
Customer may choose to use one or more of the following optional Services (“Optional Services”) by signing a Quote from TGB, and only in the event that Customer uses such Services the applicable terms in the following Appendices will apply:
- Appendix A (Stock Donation Support Terms) governs the Stock Donation Support Services
- Appendix B (Credit Card Processing Terms) governs the Credit Card Processing Services
- Appendix C (DAF Donation Terms) governs the DAF Donation Services
For clarity, each Appendix below applies only if Customer elects to receive the corresponding services from TGB. For example, if Customer elects to receive only TGB’s Stock Donation Support Services covered in Appendix A, then Appendices B, and C will not apply for that Customer. In case of any conflict, these Supplemental Terms control over the Terms of Agreement as it relates to the subject matter herein. Optional Services will be deemed “Services” as that term may be defined in the Terms of Agreement.
APPENDIX A: STOCK DONATION SUPPORT TERMS
These Stock Donation Support Services Supplemental Terms (“Stock Donation Support Terms”) between the customer signing the Quote incorporating these Stock Donation Support Terms (“Customer”, “you”) and The Giving Block Holdings, LLC (“TGB”, “we”, “us”) apply to your use of our services and product features that support our customers’ receipt of donations in various non-cash assets (including stocks, mutual funds, and ETFs) (“Stock Donation Support Services”). These Stock Donation Support Terms are supplemental to the Terms of Agreement entered into between TGB and you (the “Terms of Agreement”), and your use and our provision of the Stock Donation Support Services are subject to the Terms of Agreement.
Stock Donation Support Services includes a set of services and features that allow you to efficiently receive non-cash donations (including stocks, mutual funds, and ETFs) from your donors, in connection with our partner Renaissance Charitable Foundation (“Ren”). In order to participate in the Stock Donation Support Services, you must agree to these Stock Donation Support Terms. Stock Donation Support Services include the specific services described in the applicable Quote.
Participation in Stock Donation Support Services is entirely voluntary and is not required to receive TGB’s other services. By electing to use our Stock Donation Support Services, you acknowledge that you understand and agree to the following:
- TGB and Ren will serve as your agents and will engage with the applicable brokers as necessary to complete the transaction and distribute the proceeds to you.
- Ren will receive the donated stocks as a nonprofit, then liquidate by selling at market rates as soon as reasonably possible, before distributing the proceeds (net our fee) to you. Ren reserves the right to deny any donation based on the marketability of the stock gifted.
- We are not a financial advisor, broker, or tax advisor and cannot give investment or tax advice. TGB does not guarantee that any particular transaction will be entirely tax free. You should consult a qualified, licensed financial and/or tax advisor before engaging in any transaction. You are ultimately responsible for all decisions regarding investment assets and amounts.
- Appointment of TGB as Your Agent
You hereby appoint and authorize TGB as your agent to transfer on your behalf, and consistent with your instructions, non-cash asset donations. We shall have the responsibility and authority to do or cause to be done all acts we shall determine to be desirable, necessary, or appropriate to implement and administer your authorization. You acknowledge and agree that we are acting as a fully disclosed agent and not as principal in connection with the Stock Donation Support Services.
- TGB Fees
TGB will earn a transaction fee on each stock donation based on a percentage of the USD-liquidated value of the non-cash donation, as set forth in your Quote with TGB.
- Minimum Transfer Amount
Unless otherwise mutually agreed to in writing, donations in stocks, mutual funds, or ETFs must exceed a USD-equivalent valuation of $250.
- Data Sharing with Partners
You hereby authorize (a) TGB to share your Content and other applicable data with Ren and other partners, and (b) Ren and other partners to share your Content and other applicable data with TGB, all solely as necessary to provide the Stock Donation Support Services in accordance with the Agreement. Such sharing will be subject to confidentiality and data privacy protection terms between the applicable parties.
- Agents and Subcontractors
We may use such agents, custodians, brokers, and our affiliates, as we deem appropriate to carry out our duties under these Treasury Support Terms. Our sole liability for the acts or omissions of any agent shall be limited to liability arising from our failure to use reasonable care in the selection of such agent.
APPENDIX B: CREDIT CARD PROCESSING TERMS
These Credit Card Processing Terms (“Card Terms”) between the customer that uses our Card Processing Services (“Customer”, “you”) and The Giving Block Holdings, LLC (“TGB”, “we”, “us”) apply to your use of our services and product features that support our customers’ receipt of donations by credit card and other digital payment methods (“Card Processing Services”). These Card Terms are supplemental to the Terms of Agreement entered into between TGB and you (the “Terms of Agreement”), and your use and our provision of the Card Processing Services are subject to the Terms of Agreement. Card Processing Services will be subject to a transaction fee of 2.95% (3.95% for American Express) + $0.25 for each transaction unless otherwise agreed to in writing by TGB.
Card Processing Services are provided through a partnership with Shift4 Payments. To use the Card Processing Services, you must agree to the Shift4 Payments Terms. (“Shift4 Terms”). In the event of any conflict between the Shift4 Terms and this Agreement, the terms of the Shift4 Terms will apply with respect to the Card Processing Services.
APPENDIX C: DAF DONATION TERMS
These DAF Donation Supplemental Terms (“DAF Donation Terms”) between the customer that uses our DAF Donation Services (“Customer”, “you”) and The Giving Block Holdings, LLC (“TGB”, “we”, “us”) apply to your use of our services and product features that support our customers’ receipt of donations from Chariot’s Donate-by-DAF services (“DAF Donation Services”). These DAF Donation Terms are supplemental to the Terms of Agreement entered into between TGB and you (the “Terms of Agreement”), and your use and our provision of the DAF Donation Services are subject to the Terms of Agreement. DAF Donation Services will be subject to a transaction fee of 2.9% unless otherwise agreed to in writing by TGB.