Welcome to Givio!
Thank you for choosing Givio.
This Agreement is entered into by the party accepting this Agreement (the “Charitable Organization”) and Givio on the date the Charitable Organization expresses its consent as set forth below.
BY CLICKING “I AGREE”, YOU (AS THE AGENT AND DULY AUTHORIZED REPRESENTATIVE OF THE CHARITABLE ORGANIZATION) ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THIS AGREEMENT, OR IF YOU ARE NOT A DULY AUTHORIZED REPRESENTATIVE OF THE CHARITABLE ORGANIZATION, YOU MAY NOT CONTINUE WITH THE REGISTRATION PROCESS. YOU AND THE CHARITABLE ORGANIZATION ARE NOT AUTHORIZED TO ACCESS THE SERVICES OR THE CONTENT AND NEITHER YOU NOR ANY OTHER AUTHORIZED USER OF THE CHARITABLE ORGANIZATION SHALL NOT BE ABLE TO USE OR RECEIVE THE BENEFIT OF THE SERVICES OR CONTENT.
Charitable Organizations may receive donations from Givio regardless of whether the Charitable Organization registers with Givio or not. Registration provides access to a free online charity profile, disbursement account, the ability to receive donations electronically, and other features created for the benefit of nonprofits. Charitable Organizations, however, are not required to register with Givio to receive donations directed to them by Givers.
1. Some Helpful Definitions.
“Administrator” means an Authorized User identified by Charitable Organization as an administrative user.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“App(s)” means one or more Product(s) provided by Givio and/or installed on individual devices of Charitable Organization or any Authorized User, to the extent applicable.
“Authorized Users” means registered individual end users of Charitable Organization who are authorized to access and use the Services, Content, User Materials, Deliverables, and Products in accordance with the terms of this Agreement.
“Content” means the audio and visual information, documents and other materials contained in or made available to the Authorized Users in the course of using the Services.
“Charitable Organization Data” means data, information and/or records collected, stored, submitted, or inputted by Charitable Organization or an Authorized User into or otherwise processed or recorded through the Services.
“Deliverable(s)” means materials, documentation, templates, reports, forms, configurations, methodologies, specifications, descriptions, designs, models, software and any other work product created, developed, implemented or conceived pursuant to this Agreement.
“Disbursement Account” means the account to enable Givio to process donations to that organization, accessible through the information provided by Charitable Organization to Givio through the Services.
“Donor Agreement” means the form that is part of the End User Agreement that explains the terms, responsibilities and processes associated with receiving an individual donor’s gift and disbursing it to the appropriate recipient nonprofit organization.
“End User” means any individual accepting the End User Agreement and using the features of the Product and Services, including but not limited to acting as an Authorized User of a charitable organization and/or establishing an individual Donor Advised Fund (“DAF”) account from which to make donations to eligible charitable organizations. In the capacity of making individual donations, an “End User” may also be referred to as a “Donor Advisor”.
“Output” shall mean all documents, information, records and other output of the Services.
“Product(s)” means Givio’s software products identified in the Agreement and on the Givio website.
“Services” means access and use of the Products, User Materials, and Content on a software-as-a-service basis (SaaS) via the Internet and as described on Givio’s website, as well as the disbursement of any donations made to charities by using the Products and other services provided by Givio as set forth in the Agreement.
“User ID” means a unique user identification assigned to an individual Authorized User as set forth in Section 4.
“User Materials” means any help files or written instruction manuals regarding the use of the Products and/or Services provided to Charitable Organization or its Authorized Users by Givio.
2. Products and Services.
2.1 What We Do. Givio Services are offered to allow End Users, or Givers, to make donations, create Campaigns, and support nonprofit organizations. Recipient nonprofit organizations are vetted using third-party and government data resources (such as IRS charity data) in order for Givers to be eligible to receive the benefit of a tax-deductible donation. Givio partners with Givio Charitable Foundation to disburse donations to recipient nonprofits. Downloading our Apps and using our Products are generally free of charge, except for Payment Processing Fees associated with making a donation.
Givio provides Services to nonprofit organizations, enabling them to register with Givio to receive certain benefits, such as electronic payment processing of donations, sharing donor and gift information, and enriching account profile information that is available to End Users when searching our database of charities.
Givio is not a charity, financial institution or creditor. Givio Services are software-based platforms. Givio Services are used by End Users to raise money for charities and charitable causes, but Givio is not a professional fundraising organization.
2.2 Provision of Services. Givio will use commercially reasonable efforts to make the Services available to Charitable Organization and its Authorized Users during the Term in accordance with this Agreement and the End User Agreement, subject to downtime for scheduled maintenance, emergency maintenance, and any outages caused by circumstances outside the reasonable control of Givio. Charitable Organization acknowledges that provision of the Services and certain obligations of Givio hereunder may be dependent upon Charitable Organization providing access to certain data, information or assistance to Givio from time to time, and that the same may be essential to the performance of the Services. Charitable Organization agrees to provide such data, information or assistance to Givio upon Givio’s reasonable request. In the event of a failure or downtime of the Services, Charitable Organization can contact Givio for support as described in the Products or on the Givio website.
2.3 License; Restrictions. Subject to the terms and conditions of the Agreement, and to each Authorized User’s compliance with the End User Agreement, Givio grants to Charitable Organization a limited, revocable, non-exclusive license to access and use the Products and the Services, pursuant to the Terms of the End User Agreement and solely for Charitable Organization’s internal use and its Authorized Users’ personal use as a platform to facilitate charitable giving. In the event of any conflict between the terms and conditions of the End User Agreement and this Agreement, the terms and conditions of this Agreement shall prevail. The Products, User Materials, and Services are proprietary to Givio, subject to Givio’s suppliers’ and licensors’ rights to such suppliers’ and licensors’ products, and Givio reserves all right, title and interest in and to the Products, User Materials, and Services, including all related software and intellectual property rights. No rights are granted to Charitable Organization hereunder other than the limited license and access rights expressly set forth herein. As between Charitable Organization and Givio, Charitable Organization is solely responsible for (a) its Authorized Users and for all activities that occur under its and their accounts; (b) the accuracy and quality of Charitable Organization Data; and (c) complying with all applicable federal, state and local laws, rules and regulations in using the Services. Charitable Organization shall prevent unauthorized access to, or use of, the Products, User Materials, or Services, and notify Givio immediately of any such unauthorized access or use. Charitable Organization shall not, and shall not permit any Authorized User or third party to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Products, User Materials, or Services available to any third party; (ii) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works of the Products or Services; (iii) reverse engineer, disassemble or decompile (or attempt to reverse engineer, disassemble or decompile) any Product; (iv) access the Products or Services in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics thereof; (v) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) use the Services for unlawful purposes or for any purpose not expressly permitted by the Agreement; (ix) use the Products or Services in a manner that is defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, or harassing; (x) submit any Charitable Organization Data or use the Products or Services in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders; or (xi) make the Services, User Materials, or Products available to any third party other than Authorized Users. If Givio has reasonable grounds to believe that Charitable Organization is in violation of this Section 2.3, Givio may suspend or terminate Charitable Organization’s and/or its Authorized Users’ access to the Services immediately.
2.4 Donation Disbursement Services. Givio is not a professional fundraising organization. Givio’s Products and Services, however, benefit charitable organizations selected by Givers to receive donations. Charitable organizations may use the Services in order to receive funds. Givio supports donor advised fund (“DAF”) services to receive and receipt donations, and to disburse donation advisements to recipient charities. The DAF is managed as part of the Givio Product platform.
2.4.1 Disbursement Accounts. Charitable Organizations activate and maintain a Disbursement Account that provides the means necessary to receive funds. Each month, donations are disbursed to eligible recipient organizations by check, ACH or other electronic transfer of funds methodology. Disbursements are managed in accordance with the appropriate governance rules including campaign-specific giving program guidelines, the Donor Advised Fund advisement process, industry regulatory requirements, and any applicable Donor Agreement. Fees may be withheld from the donations in accordance with the governance document(s). From time to time, as part of donation advisement data collected and shared by Givio, donors may provide instructions to the Charitable Organization regarding the use of the donation. Charitable Organizations are expected to use reasonable efforts to comply with such instructions, in accordance with the policies and practices of the Charitable Organization.
2.4.2 Disbursement Account Information. The Services provide an interface for an Administrator to change Disbursement Account information. Charitable Organization represents and warrants, for itself and its Administrators, that all account information will be complete and accurate, and that Charitable Organization has and will have all rights and authorizations necessary to provide such account information. Givio is not liable for any misapplied or unapplied disbursement amounts, or any resulting or related costs, which arise out of or result from Charitable Organization’s or any Authorized User’s provision of incomplete, inaccurate, or unauthorized account information.
2.4.3 Donor Advised Funds. Donations processed through Givio are made to and received by Givio Charitable Foundation as an advisement for making a donation to the intended eligible charity. Givio Charitable Foundation (EIN 47-3955325) is a US-based nonprofit organization sponsoring a US donor advised fund; and it is a tax-exempt as a public charity described in sections 501(c)3, 509(a)(1) and 170(b)(a)(A)(vi) of the internal Revenue Code of 1986, as amended (the “Code”). In the context of making a gift or administering a Campaign, donations are made to the DAF so that the DAF may issue charitable receipts to the Giver at the time of donation, and then process those donations to eligible charities. In a corporate giving program context, the DAF provides a vehicle for consolidated disbursement of corporation and employee donations, such as with corporate matching funds and other corporate contribution programs. In addition to the terms of this Agreement, each Authorized User of the Givio Products and Services must agree to the terms of the End User Agreement, which includes a Donor Agreement (the “Donor Agreement”), when they create their account in the Givio Products.
2.5 Changes. Givio reserves the right, in its sole discretion, to make any changes to the Services, including the Products, that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Givio’s Products or Services to its other customers, (ii) the competitive strength of or market for Givio’s Products or Services or (iii) the Products’ or Services’ cost efficiency or performance; or (b) comply with applicable law.
3. Charitable Organization Responsibilities; Representations, Covenants and Warranties.
3.1 Charity Compliance. By accepting the Terms and Conditions, and by using the features in the Services provided, Charitable Organization affirms and agrees that:
3.1.A Neither the Donor Advisor nor any Donor Advisor’s family member will derive any personal material benefit from grants made through Givo Products and Services to this organization.
3.1.B Givio may choose to audit Charitable Organization and Charitable Organization will comply with reasonable requests for confirmation of information.
3.1.C Charitable Organization is in full compliance with the anti-terrorism laws legislated by the USA Patriot Act. Additionally, this organization will not promote or engage in violence, terrorism or the destruction of any state, nor will it make sub-grants to any entity that engages in these activities.
3.1.D Charitable Organization abides by all applicable local, state and national laws.
3.2 End User Agreement; Consents. Charitable Organization will ensure that each of its Authorized Users enters into an End User Agreement. Charitable Organization is responsible for obtaining all authorizations, consents, releases, and permissions necessary or desirable to enter Charitable Organization Data into the Services, to use the Services to process and store Charitable Organization Data and to receive the Services and Output. Charitable Organization hereby represents and warrants that Charitable Organization possesses all necessary rights in and to Charitable Organization Data, including without limitation all rights and consents to upload and submit Charitable Organization Data through the Services.
3.3 Charity Administration. By using the features provided in the Services to claim a charity, Charitable Organization represents, warrants, and certifies that it is authorized to provide information about the charity and transact on its behalf. Givio does not retain liability or responsibility for fraudulent misuse of a claimed charity profile to either redirect funds away from the intended charity recipient, or for the theft of donor data through the misuse of a claimed charity profile. Givio will use reasonable industry standard methods to validate the identity of a charitable organization claiming a charity to be authorized to do so.
4. User IDs. Each Authorized User will have a unique User ID for his or her access to the Services. Charitable Organization will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another’s User ID. Charitable Organization will adopt and maintain such security precautions for User IDs to prevent their disclosure to and use by unauthorized persons and will promptly notify Givio if the security or integrity of a User ID or password has been compromised. Charitable Organization will promptly delete or deactivate any Authorized User’s account when that user is no longer an Authorized User.
5. Responsibility for Users. Charitable Organization will (a) remain responsible for all obligations under this Agreement arising in connection with any use of the Services by any other person or entity authorized by, through or as a result of an act or omission of Charitable Organization (“Other User”), including without limitation any Authorized User; (b) be liable for any act or omission by any Other User, which, if performed or omitted by Charitable Organization, would be a breach of this Agreement; and (c) any such act or omission of any Other User will be deemed to be a breach of this Agreement by Charitable Organization.
6. Administrative Users. Only Administrators may designate another individual as another Administrator. Additional administrators may be able to delete, copy, or view the Content and Charitable Organization Data of other Authorized Users. Each Administrator is responsible for the access to the Services that he or she grants to any Other User. A violation of any terms of this Agreement by an Other User may result in the termination of an Administrator’s or any other Additional User’s access to the Services.
7. Review and Responsibility for Its Own Services and Data. Charitable Organization will be solely responsible for any services that it provides to others involving the use of the Services, Charitable Organization Data, Output or the Services. Givio makes no representations concerning the completeness, accuracy, or utility of any Charitable Organization Data in the Services or any Output or concerning the qualifications or competence of any Authorized User that may place Charitable Organization Data in the Services. Charitable Organization shall be solely responsible for ensuring accuracy, completeness and compliance of any Output provided to any third party, and all liabilities and responsibilities in connection with such Output, and Givio shall not be responsible for the accuracy, completeness, or compliance thereof. Givio shall not be liable for the accuracy, completeness or authenticity of Charitable Organization Data furnished by Charitable Organization or any other third party, and shall have no obligation or responsibility to audit, check or verify the Charitable Organization Data. Neither Charitable Organization nor any other person will have any claim or cause of action against Givio as a result of any professional or other services rendered or withheld in connection with the use of the Services, Charitable Organization Data, Output or the Services.
8. Suggestions and Feedback. In consideration of access to the Services, Charitable Organization hereby irrevocably and exclusively assigns, conveys, transfers and sets over absolutely to Givio, all rights, title and interests in and to (whether or not now existing) in and to all ideas, suggestions, enhancements, recommendations or other feedback (collectively, “Feedback”) provided by Charitable Organization and/or its Authorized Users, including without limitation any and all intellectual and proprietary rights therein. Without limiting the foregoing, Givio shall have all rights to use, reproduce, modify, edit, adapt, publish, sell, translate, create derivative works from, distribute, transmit, display, perform, and license and/or sell Feedback, contribute or otherwise provide to or through the Services (in whole or part) and/or incorporate such Feedback, in whole or in part, in other works in any form, media or technology now known or later developed for any purpose without compensation to Charitable Organization or any third party.
9. Charitable Organization Equipment, Hardware and Software Requirements. Charitable Organization agrees that it or its Authorized Users shall provide and maintain, at its sole cost and expense, all hardware, software, Internet access and other materials necessary to permit Charitable Organization’s and its Authorized Users’ access to and use of the Services (collectively, “Charitable Organization Systems”), and Charitable Organization further agrees that Givio has no responsibility or liability for the costs, implementation, or operation of the Charitable Organization Systems.
10. Confidentiality; Data Security.
10.1 General Obligations. “Confidential Information” means information concerning the business of the other party and/or its Affiliates, whether or not reduced to writing, including without limitation information pertaining to developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the other party. The parties acknowledge and agree that they may receive or be exposed to Confidential Information of the other party during the Term. Without limiting anything herein, the parties acknowledge and agree that the Services are Confidential Information of Givio. Each party acknowledges that the Confidential Information of the other is confidential and proprietary and agrees not to disclose such Confidential Information to anyone other than employees of the receiving party who have a need to know such information and are bound by confidentiality obligations at least as restrictive as those contained herein. In addition, the receiving party agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under the Agreement. Each party shall protect the Confidential Information of the other at least to the same extent it protects its own similar information, but in no event using less than reasonable care. The parties’ obligations of confidentiality shall not apply to information which: (i) is obtained from a third party that did not make a disclosure in violation of a nondisclosure obligation; (ii) is in or enters the public domain not as a result of action by the receiving party; (iii) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party without nondisclosure obligations. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law or court order; provided, however, that in the event of any such required disclosure, the receiving party shall provide the disclosing party with prompt written notice thereof and shall cooperate with the disclosing party in any attempt to quash, limit or otherwise prevent or limit disclosure.
10.3 Injunctive Relief. Notwithstanding anything to the contrary herein, if the receiving party breaches or threatens to breach Section 10.1, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of posting of bond.
10.4 Data Protection. Givio will use commercially reasonable efforts to ensure that Charitable Organization Data will be stored and managed using industry best practices regarding data protection, including access controls, encryption and secure cloud-based server and data storage providers. Charitable Organization acknowledges that Charitable Organization Data may include employee-related data and may include data defined as Personally Identifiable Information under applicable law. Charitable Organization warrants and represents that it has the necessary legal rights and permissions as a data controller to share its employee-related data from all legal jurisdictions in which the data originates. Givio will use commercially reasonable efforts to notify Charitable Organization as promptly as practicable under the circumstances in the event of any unauthorized access to Charitable Organization Data.
11. Indemnification; Disclaimer; Limitations on Liability.
11.1.A Charitable Organization. Charitable Organization shall defend, indemnify and hold Givio and its Affiliates, and their officers, employees and representatives, harmless from and against any and all awards, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) incurred in connection with allegations, claims, demands, suits or proceedings made or brought against Givio arising out of or related to (i) Charitable Organization’s use of the Services in a manner inconsistent with the Agreement, and/or (ii) the gross negligence or willful misconduct of Charitable Organization or its Authorized Users.
11.1.B Givio. Givio shall hold Charitable Organization harmless from and against any claim, action, suit or proceeding brought by a third party against Charitable Organization (each, a “Claim”) alleging that the use of the Products, Services, or any Deliverable by Charitable Organization as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, registered copyright, registered trademark or trade secret rights of a third party. Givio shall pay any damages awarded to a third party in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by Givio in any settlements arising out of such Infringement Claim; provided, that (a) Charitable Organization promptly gives written notice of the Infringement Claim to Givio; (b) Charitable Organization gives Givio sole control of the defense and settlement of the Claim (provided that Givio shall not settle any Claim without Charitable Organization’s consent unless it unconditionally releases Charitable Organization of all liability); (c) Charitable Organization provides to Givio, at Givio’s cost, all reasonable assistance; and (d) the alleged infringement does not arise as a result of: (i) the combination, operation, or use of the Products, Services, or Deliverables with third party software, services or other products or materials not furnished by Givio; (ii) the modification by Charitable Organization or any third party of the Products, Services, or Deliverables; (iii) Charitable Organization’s or its Authorized User’s improper or misuse of the Products, Services, or Deliverables (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (iv) Givio’s compliance with Charitable Organization’s instructions; (v) Givio’s use of trademarks, Charitable Organization Data or other materials supplied by Charitable Organization, (vi) any breach or alleged breach by Charitable Organization of this Agreement, (vi) the conduct of any business in connection with use of the Services; or (vii) any Content owned by a third party and provided by Givio through the Services. THIS SECTION STATES CHARITABLE ORGANIZATION’S SOLE REMEDY AND GIVIO’S SOLE LIABILITY WITH RESPECT TO CLAIMS RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
11.2 Disclaimer. THE SERVICES, CONTENT, PRODUCTS, DELIVERABLES, USER MATERIALS AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY GIVIO OR ANY OF ITS LICENSORS OR SUPPLIERS (COLLECTIVELY, THE “GIVIO SERVICES AND MATERIALS”) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND GIVIO AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS OR THAT THE SERVICES WILL MEET CHARITABLE ORGANIZATION’S REQUIREMENTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER GIVIO NOR ANY OF ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE PROVISION OR OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF INFORMATION PROVIDED THROUGH THE GIVIO SERVICES AND MATERIALS IS SOLELY AT CHARITABLE ORGANIZATION’S OWN RISK. IN NO EVENT SHALL GIVIO BE LIABLE TO CHARITABLE ORGANIZATION OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY CHARITABLE ORGANIZATION, ANY AUTHORIZED USER, OR ANY THIRD PARTY ACCESSING THE GIVIO SERVICES AND MATERIALS BY OR THROUGH CHARITABLE ORGANIZATION IN RELIANCE ON ANY INFORMATION ACCESSED BY OR THROUGH THE GIVIO SERVICES AND MATERIALS. In no event will Givio be liable for third party claims against Charitable Organization for losses or damages, or loss of, or damage to, Charitable Organization’s records or data. The parties acknowledge and agree that no prior or contemporaneous representations, inducements, promises or agreements, oral or otherwise, between the parties will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under the Agreement, it has not, does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation is expressly set forth herein. Charitable Organization agrees that its use of the Givio Services and Materials and any additional software or services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Givio with respect to functionality or features.
11.3 Limitations on Liability.
11.3.A IN NO EVENT SHALL GIVIO OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO CHARITABLE ORGANIZATION OR TO ANY OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
11.3.B IN NO EVENT SHALL GIVIO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM AND/OR SERIES OF CLAIMS, WHETHER RELATED OR UNRELATED, UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CHARITABLE ORGANIZATION TO GIVIO DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION SET FORTH IN THIS PARAGRAPH IS CUMULATIVE AND NOT PER CLAIM OR PER AFFILIATE. CHARITABLE ORGANIZATION ACKNOWLEDGES THAT GIVIO HAS SET ANY APPLICABLE FEES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. U.S. Government End-Users. Givio provides the Givio Services and Materials, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Solution include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data — Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Givio to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
13. App Store Sourced Apps. In the event that Charitable Organization or any Authorized User is provided or uses any App(s) downloaded from the Apple App Store (an “App Store Sourced App”), Charitable Organization and each Authorized User will only use the App Store Sourced App (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Charitable Organization and each Authorized User acknowledges and agrees that the availability of the App and the Services is dependent on the third party from whom Charitable Organization received the App license, e.g., the Apple App Store (“App Store”). Charitable Organization and each Authorized User acknowledges that this Agreement are between Charitable Organization and Givio and not with the App Store. Givio, not the App Store, is solely responsible for the Products and Services, including any App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, Charitable Organization and each Authorized User must have access to a wireless network, and Charitable Organization or, as applicable, each Authorized User agrees to pay all fees associated with such access. Charitable Organization, or as applicable each Authorized User also agrees to pay all fees (if any) charged by the App Store in connection with the Products and Services, including the App. Charitable Organization and each Authorized User agrees to comply with, and Charitable Organization’s and each Authorized User’s license to use the App is conditioned upon Charitable Organization’s and each Authorized User’s compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Products and Services, including the App. Charitable Organization acknowledges that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them. Finally, Charitable Organization represents and warrants that (i) it and each of Authorized Users is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) it and each of Authorized Users is not listed on any U.S. Government list of prohibited or restricted parties. To the extent that this Section 13 applies to or imposes obligations on an Authorized User, Charitable Organization shall make each Authorized User aware of the provisions of this Section 13 and cause each Authorized User to agree to the provisions of this Section 13.
14. Force Majeure. Givio shall be excused from performance of its obligations under the Agreement if such a failure to perform results from compliance with any act of God, fire, strike, embargo, terrorist attack, war, insurrection or riot, computer, telecommunications, service provider or hosting facility failures or delays involving hardware, software or power systems not within Givio’s possession or reasonable control, denial of service attacks, incompatibility of Charitable Organization’s equipment, hardware or software with the Services, acts or omissions of vendors or suppliers, transportation and telecommunications difficulties, or other causes beyond the reasonable control of Givio. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
15. Governing Law; Jurisdiction; Venue; Severability of Provisions. This Agreement is governed by the laws of Delaware, USA and controlling United States Federal Law without regard to any conflicts of law provisions. Any legal proceedings arising from or relating to this Agreement shall be brought exclusively in the federal or state courts located in Delaware and the parties hereby consent to the personal jurisdiction and venue of such courts. All parts of this Agreement apply to the maximum extent permitted by law. The parties both agree that if any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable as written, then that part will be replaced with terms that most closely match the intent of the unenforceable provision to the extent permitted by law. The invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.
16. Effect of Termination. Upon expiration or termination of the Agreement, Givio shall immediately terminate Charitable Organization’s and Authorized Users’ access to the Services, and Charitable Organization and Authorized Users shall cease all access to the Services. Givio has no obligation to retain any Charitable Organization Data following termination and may delete or destroy the same. The following provisions shall survive any termination or expiration of the Agreement: Sections 1, 2.3, 2.4, and 4-20 of this Agreement.
17. Third-Party Beneficiaries. Content licensors shall have the benefit of Givio rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
18. Electronic Communications. When Charitable Organization or any Authorized User visits the Services or send e-mails to us, Charitable Organization is communicating with Givio electronically. Charitable Organization consents to receive communications from Givio electronically. Givio will communicate with Charitable Organization and/or its Authorized Users by e-mail or by posting notices on the Services. Charitable Organization agrees that all agreements, notices, disclosures and other communications that Givio provides to Charitable Organization electronically satisfy any legal requirement that such communications be in writing. Charitable Organization further agrees that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in this Agreement.
19. Miscellaneous. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party agrees to comply with all U.S. laws, ordinances, orders, directions, rules, and regulations applicable to such party in connection with the Agreement. All notices under the Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) the second business day after sending by confirmed facsimile.
20. Contacting Us. If you have any questions about this Agreement, please contact us at Support@Giv.io, or by using the contact information provided on our website, www.Giv.io, or through the Services.