Terms & Conditions (General)
A Bit About Us
We make it easy for businesses and non-profits of all sizes to engage customers, employees, and other constituents in corporate philanthropy initiatives. We provide innovative, interactive, and scalable turn-key solutions for: Donation Processing; Grant Distributions; Social Media Integration; Story-telling; Impact Metrics; and Engagement Analytics. The way we do this is by creating customized web-based “Giving Campaigns” and “Fundraising Campaigns”, which are each defined and described in more detail in the section below entitled, How It Works.
You Accept Our Terms
You Accept Changes to Our Terms
We may add to, delete from or otherwise modify or change the Terms in any respect from time to time or at any time, if and as we determine in our sole discretion, and without notice to you. All such changes are effective immediately when we post them (unless they expressly provide otherwise). Such changes will apply to any and all use of the Site and participation in the Services. You agree that (a) your visiting the Site, registering with us or creating a user account or profile, participating in any Services, submitting or updating any Registration Data, Feedback (defined below) or other content or information (whether to us or through us to any Cause, Sponsoring Organization or other person), and/or any other use of the Site will mean (b) that you agree to always check back and review all Terms every time that you come back and visit the Site, access or update your user account or profile, participate in any Services, submit or update any Registration Data, Feedback or other content or information, and/or otherwise use the Site for (c) any changes to any of the Terms. Following any change to the Terms, if you continue visiting the Site, accessing or updating your user account or profile, participating in any Services, and/or submission or updating of any Registration Data, Feedback or other content, information or communication means you accept and agree to the changes without condition. If any such changes are not acceptable to you, your sole remedy is to cease participating in the Services and otherwise using the Site and, if applicable, to cancel your account. If we do so change the Terms, we will endeavor to indicate the most recent effective date of the Terms, but if we do not indicate a date, or if we fail to update a date that was previously indicated, after making any such change, you will still be responsible for complying with the Terms as so changed. You acknowledge that you have no right or entitlement to use the Site, or to require us to continue to operate or maintain the Site or provide any Services, or to open or maintain a user account, or to require us to keep the Terms unmodified, or to require us to modify the Terms, or to otherwise have any voice in how we own, operate, manage, maintain or otherwise conduct the Site or any other aspect of our business. You understand and accept that temporary or permanent interruptions of the Site or of our Services may occur as normal or anomalous events from any number of causes. You also understand and accept that you will have no remedy as against us or any of our Affiliates (defined below) for such an occurrence regardless of the circumstances or of the impact on you.
A Few Definitions
“Cause” (as well as the terms “NFP,” “Non-Profit,” and “Not-For-Profit Organization”) refers to an organization that has tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. “Donor Advised Fund” or a “DAF” refers to a special account maintained and operated under IRS rules by a “Sponsoring Organization” which is itself a 501(c)(3) tax-exempt organization. Generally, donations made into the DAF are owned by the Sponsoring Organization until distributed by the Sponsoring Organization to other Causes. Donors making contributions into a DAF (or representatives of Donors) generally have advisory privileges allowing them to recommend how the Sponsoring Organization might distribute money out of the DAF to other Causes. (This general definition of DAF and Sponsoring Organization is based on our understanding of, but is not intended to substitute for, the definition or import given to those terms by the IRS or for any IRS rules or other regulations that apply to a DAF or to a Sponsoring Organization.) Finally, the Terms on occasion refer to Affiliates of Givkwik. “Affiliate” means an entity that at any time owns or controls us, is owned or controlled by us, or is under common ownership or control with us. It also means any individual who is an equity owner, officer, director, manager, member, partner, employee, contractor, investor, advisor, agent, attorney, attorney-in-fact, representative, or other similarly affiliated personnel of us or of any of the foregoing affiliated entities. “Campaign,” “Giving Campaign” and "Fundraising Campaign” are defined and described in the section below entitled, How It Works. “Campaign Promoter” means anyone who is using the Givkwik system to run a Campaign. We have said above that the phrases you and users of the Site each means any and all users of the Site in general; but, an important related term is “End User,” which specifically refers to users of the Site who participate in a specific Campaign being run by Campaign Promoter (i) for purposes of making their own tax-deductible donation into a DAF or (ii) for purposes of voting on how a Sponsored Donation should be divided and/or distributed to one or more Causes or (iii) for purposes of otherwise participating in a Campaign, depending on the rules of the specific Campaign. Finally, from time to time in Campaigns you may be given the chance to vote on how to allocate all or a portion of a third-party grant to one or more Causes or any donated funds which you may be permitted to contribute to a Campaign, whether to be matched by a corporate sponsor or otherwise. The term “Giv” may be used to refer to your vote or votes on such allocation (but see the section below entitled, Ownership and elsewhere herein for restrictions and conditions).Unless context requires otherwise in our sole determination, any reference to using the Site (or accessing the Site or words of similar import) will mean visiting, browsing, viewing, or accessing any aspect of, the Site or our system via any device or medium; registering with us on the Site; creating a user account or profile; using or participating in or benefiting from any of the Services; submitting or updating Registration Data, Feedback or other information, content or communication to us or through us to any Cause or Sponsoring Organization; receiving any communication from us or from any Cause or Sponsoring Organization related to us or to the Site or Services; and otherwise using the Site or participating in any of the Services.
1. How It Works
1.1 Mission Context. How it works is a function of whom we serve, and of our mission to both simplify and democratize the process of organizational philanthropy while amplifying its impact. Our plug-and-play system simplifies allocating and giving funds to, and raising funds for, non-profit Causes in a way that makes the process transparent, democratic, and scalable. This, in turn, magnifies the impact on donor goodwill and provides corporate donors and NFPs valuable data and analytics about their customers and other constituents.
1.2 Our Clients. We provide value-added technology and support services to two primary clientele: (1) businesses with corporate social responsibility (“CSR”) initiatives who want to allocate a portion of corporate profits to charitable Causes in a way that maximizes customer engagement and simplifies the process internally. (2) Non-Profit Organizations that want to run interactive, innovative fundraising campaigns that collaboratively engage corporate donors, individual donors, grant recipients, news media, and other constituents.
1.3 Campaigns in General. We make our turn-key system available to Campaign Promoters, allowing them to quickly create, customize and launch their own web-based, interactive, scalable giving and fundraising campaigns (“Campaigns”). These Campaigns are accessible to their intended End Users via the Internet either as white-labeled websites hosted on the Campaign Promoter’s own website, or on a site operated by us. The technical specifications of a Campaign website are determined in the Campaign widget on our Site by which the Campaign Promoter establishes its Campaign parameters (discussed below).
1.4 Campaign Types. To distinguish between a Campaign sponsored by a business (or by philanthropists, giving circles, or other donors) to benefit one or more third-party Causes, and a Campaign run by a non-profit for its own benefit, in these Terms we call Campaigns run by businesses “Giving Campaigns” and we call Campaigns run by NFPs “Fundraising Campaigns.” In either case, all Campaigns use the same Givkwik system and share most of the key Campaign elements.
1.5 Campaign Elements. Campaigns incorporate elements of elegant design, democratic voting, game mechanics, social media integration, and behavioral analytics. By combining design, voting and gamification, we provide an interactive user experience that engages targeted End Users participating in a Campaign. In corporate-donor Giving Campaigns, goodwill is magnified when trending social media posts include the news that a corporate donor’s profits allocated to social Causes are being put up for a vote by people outside of the corporate boardroom; while in NFP Fundraising Campaigns, there is a natural collaboration among the NFP running the Campaign and its key donor base to push information about the Campaign to their mail lists, to the news media, and to other donors. Our data analytics provide the Campaign Promoter value-added insight about its customers, donors, and other constituents that is derived from registration, geo-location, and the interactive nature of the Campaign.
1.6 Registration Required. To create and launch a Campaign, an authorized representative of the Campaign Promoter must register an account with us in the name and on behalf of the Campaign Promoter. Registration is described below in the section below entitled, Registration Process. The authorized person must include, among the other information, her or his name, title and contact information.
1.7 Section 501(c)(3) Status. The Givkwik system may be used to donate funds only to Causes having an IRS determination letter notifying the Cause that the IRS determined the Cause is exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code and that contributions to it are deductible under Code section 170. We may require a copy of the determination letter be provided to us before we allow a Campaign to launch; whether we do or not, the Campaign Promoter shall be responsible for ensuring that all Causes involved in its Campaign have such a determination letter in effect, and shall be responsible for indemnifying us under the indemnification section below for any loss or obligation we may suffer as a result of any violation of this requirement.
1.9 Building, Testing, Launching. Once all Campaign parameters have been established and entered into our Campaign widget, we will build the Campaign website, run a test of the Campaign site prior to its launch and then, once tested and approved by the Campaign Promoter, the Campaign website will be launched as determined in the Campaign widget. In most cases, this will happen automatically and seamlessly as a function of our self-serve Campaign widget without the direct involvement of, or your interaction with, Givkwik personnel. On the other hand, if a Campaign Promoter has retained us to provide specialized custom services for an additional fee, we may have more direct involvement.
1.10 Donor Advised Funds. All Campaigns using a Donor Advised Fund within the Givkwik system, and all donations made into such DAF, are subject to the rules of that DAF. You can read the rules in the fund circular relating to our current DAF (called the Givkwik Fund) which is owned and managed by Impact Assets by clicking on the link for the circular where located on your browser, mobile device, tablet or other device. In addition, each Giving Campaign will have its own rules (that we must approve). Rules that are specific to a Giving Campaign will be posted on the Site under a banner, or on a page, or otherwise in an area of the Site that is related to the Campaign.
1.11 Giving Campaigns. Unless the specific rules of a Giving Campaign provide otherwise, Giving Campaign mechanics will generally be as described here. In a Giving Campaign, a donation (usually, though not necessarily, one of significant size) is either (1) made by a corporate Campaign Promoter (or a generous philanthropist, or a group of people constituting a giving circle, or other donor) into a Donor Advised Fund within the Givkwik system for purposes of being distributed later as determined by the votes of End Users permitted to vote in the Campaign; or (2) set aside by the Campaign Promoter within its own accounting/internal control system to be donated directly by the corporate Campaign Promoter later, according to the rules of the relevant Giving Campaign. We call such a donation a “Promoted Donation.” The donor of the Promoted Donation allows other people to use the Campaign site (that is, the interactive Campaign website created by us) to vote on how the Promoted Donation should be allocated and distributed out of the DAF (or by the Campaign Promoter directly, if applicable) to one or more Causes from among a slate of candidate-Causes. Typically, the corporate donor will select the slate of Causes for which credentialed End Users may vote. The corporate Campaign Promoter can also allow the participants in the Giving Campaign to recommend Causes to receive funds. Essentially, the Campaign Promoter of a Giving Campaign is crowdsourcing recommendations, allowing End Users to democratically vote how they feel the donation should be given away to do good. Promoted Donations can be contributed through the Site (by means of our third-party payment processor). Promoters can also contact our corporate social responsibility team at firstname.lastname@example.org to discuss contributions to the DAF by wire transfer, ACH or check, and to discuss rules for a Giving Campaign. Giving Campaigns can also be used by a corporate donor as part of, or to replace, its existing grant matching program it offers to its employees.
1.12 Fundraising Campaigns. Unlike Giving Campaigns (where a corporate or other donor crowdsources the determination of which third-party Causes should receive allocated funds), a Fundraising Campaign are launched by the Cause itself as the Campaign Promoter to raise funds for itself using our interactive, scalable system and elegant design and other features to solicit and process donations. An NFP Campaign Promoter might use a Campaign to share stories from its constituents to create awareness and to create a powerful, emotional incentive to give, while engaging End Users in a way that establishes new donor relationships and strengthens existing relationships. Our analytics can also result in the NFP Campaign Promoter learning more about the interests, motivations, behavior and other characteristics of its donors. Or, it might use a Fundraising Campaign as a unique and powerful opportunity to reach a targeted funding goal incorporating corporate matching grants while aggressively integrating social media tools to create awareness and enhance goodwill.
1.13 Strategic Partners. Campaigns may (but need not) incorporate third-party strategic partners. For example, a corporate Campaign Promoter might partner with other corporate donors to contribute a large donation into a Donor Advised Fund. Campaign Promoters may even work with one or more non-profits to promote the Campaign on their respective websites and other marketing channels. An NFP Campaign Promoter might partner with one or more of its large, existing donors—who are not themselves the Campaign Promoter, but who might, for example, make initial donations into the Campaign, or publicly or privately match donations made by End Users—to magnify the Campaign’s reach and impact. Campaign Promoters may also work with strategic partners who agree to provide in-kind services to the target Causes rather than contributing cash. (These examples are not all of the possibilities, but are used to explain the concept of how a third party may strategically partner with a Campaign Promoter. There are many possibilities using the Givkwik system that are limited only by law, current technology and imagination.)
1.14 Social Media. Giving Campaigns will generally be conspicuously announced on the Site and our Social Media accounts. We may also let End Users who have previously registered with us know about current or trending Giving Campaigns by email. Campaign Promoters, CSR teams, marketing departments, and strategic partners will generally be permitted, expected or required to announce and promote their Giving Campaigns on their own websites, Social Media accounts, press release and/or traditional advertising. In addition, in any End User’s Givkwik account profile, the End User can opt-in to link her, his or its Givkwik account to certain of their Social Media accounts and spread the word, posting on their personal social media sites that they have voted in or contributed to a Campaign and encouraged their friends and followers to do so.
1.15 How DAF-Donated Money Gets to Causes. In order for donations made into a Donor Advised Fund to be tax deductible, the donation must become the property of the tax-exempt Sponsoring Organization that owns the DAF at the time the donation is made. Although the Internal Revenue Code section and Treasury Regulations governing DAF’s require that the final decision on the disbursement of funds held by a DAF must remain with the Sponsoring Organization without regard to any advice, recommendation or direction of anyone else, the operational mission of the Donor Advised Fund is to hold funds transferred to it until such time as the donor or other authorized person on the donor’s behalf advises the DAF to which Cause it would like all or a portion of the funds to be ultimately distributed. Absent that, as an operational model, the DAF’s raison d’etre is made moot. Please read the rest of the Terms, including the Givkwik Fund Circular which you can access at the link at the end of this paragraph for more information about the Donor Advised Fund. Under our contractual relationship with the Sponsoring Organization that owns the DAF, when we report to a Sponsoring Organization that donations made into the DAF have reached at least a pre-determined amount, or have been definitively allocated among a slates of Causes in a Giving Campaign, or are otherwise ready for disbursement to the preferred Causes, we will communicate the recommended disbursement (on behalf of all End Users who voted for that particular Cause in a Giving Campaign, or on behalf of an NFP in a Fundraising Campaign) that a charitable grant distribution in the relevant amount be distributed out of the Donor Advised Fund to the preferred recipient. Givkwik Fund Circular: https://givkwik.com/materials/Givkwik-FundCircular_20130501.pdf.
1.16 Behind the Scenes. Even though it takes more than a few paragraphs to explain the process of a Campaign, on your end as either Campaign Promoter creating a Campaign using our widget, or as an End User voting or otherwise participating in a Campaign, the process is relatively simple, easy, intuitive, user-friendly and (we hope) fun and social! Behind the scenes, however, there is a lot more going on. There was naturally some complexity in putting this all together in the first place, and there is a lot going on to make it run on a continuous basis, and to continue making it bigger, better and more impactful.
1.17 Certain Restrictions. There are some important points with which you must comply (in addition to other provisions in the Terms) to participate in a Campaign, whether as a corporate donor running a Giving Campaign, a Cause running its own Fundraising Campaign, or an End User participating in a Campaign. You must register and create an account and organizational or personal profile with us on our Site. To do that, you must be 18 years old or older, unless we expressly permit younger persons to do so in connection with a Campaign. By downloading any application that we may make available or otherwise accessing the Site, and/or by registering with us or creating an account, you are representing that you are at least as old as the minimum age that is then in effect. We may require that you provide proof of your age. You may not assign or transfer your Givkwik account to a third party or otherwise grant any third party a legal, equitable or other interest or right of any kind in, to or over your account or profile, or your donation or votes in any Campaign. Any donations into a DAF within the Givkwik system made by a corporate or other donor for a Promoted Giving Campaign, or by any donor for a Fundraising Campaign, must be authorized. Donations to a Campaign using a DAF are not refundable; each is an irrevocable donation to the Sponsoring Organization that manages the DAF into which donations are contributed; for Campaigns that do not use our DAF, contributions must also be presumed to be non-refundable unless the terms of that Campaign provide otherwise. Neither Givkwik nor any of our Affiliates nor the Sponsoring Organization nor anyone else will refund any amount donated by you, nor will you be able to sell, redeem, hypothecate, pledge, or otherwise transfer, cash in, or encumber any vote or contribution made by you in connection with a Campaign for any reason. Your vote in, contribution to, or other association with any Campaign does not create a restricted grant or donation to the Sponsoring Organization or any legal or moral right to control the final determination on where, when, how, or whether distributions out of a DAF are made to any Cause.
1.18 What We Are Not. The Services are provided purely administratively and the Site and our other technology is made available under different licenses to our various users. Givkwik is not a credit-card or other payment or financial transaction processor; as to third-party payment processors that are involved, we facilitate access to such processors in the same manner as is customary for millions of other web-enabled service providers that do not require special regulatory approvals. Givkwik is not acting as a trustee or a fiduciary for you or any other user of the Site, or any Cause, or the Sponsoring Organization, or any other person. Givkwik is not a bank or other financial institution and the Services are not banking services. You understand and unconditionally accept that any payment made by you shall in no way be or be understood or construed as an insured deposit. Any payments that are processed as part of the Services are done so my means of a third-party payment processor (such as PayPal) and they immediately and irrevocably become the property of the Sponsoring Organization into whose DAF your donation is made, and you represent that in making such a payment that the payment is in the nature of a non-refundable and non-restricted donation to a tax-exempt entity. You hereby unconditionally accept that you will lose all rights to any payment made by you the moment you have contributed it into a DAF by means of the Site or otherwise by using the Givkwik system or any Services and that doing so will give you no rights of any kind as between you and us, or as between you and the Sponsoring Organization or as between you and any Cause or otherwise (notwithstanding anything in the Term or on the Site to the contrary). Nothing in the Terms or on the Site and nothing implied or inferred from any other writing or from any course of conduct or waiver of rights or otherwise will be deemed to constitute us as your agent concerning any funds that have been transferred to a Sponsoring Organization or to expand or otherwise modify any warranty, liability or indemnity included in the Terms.
2. Registration Process
2.2 Causes will be required to create and maintain an account with us by inputting the information requested or required in the self-service onboarding agreement, which you can access by clicking on the link for the agreement where located on your browser, mobile device, tablet or other device.
2.3 End Users will be required to provide us with the following information in the registration and account creation process: Full legal name, a unique account username, mailing address, state of legal residence or business location within the United States, a password meeting our password security requirements, and personal email address. In addition, End Users who want to make a donation into the Donor Advised Fund will need to input their personal credit card or bank account information so that donations can be made; this information will be required only the first time that you register unless you want to change your credit card or bank account from which to transfer donated funds. For donations of a certain size, End Users may be requested or required to provide other payment information to facilitate a wire transfer, ACH transfer, or other electronic transfer other than a credit card payment. Credit card information will be collected and stored securely directly by a third-party credit card processor, not by us. We may from time to time allow or require registered End Users to input other information (such as a photograph or avatar image to represent you or information about your interests, or other information or content) in order to create a more social and personalized experience when you use the Site, or to allow us to improve our Services.
2.4 All content of any kind or nature that you submit to us, either in connection with your profile or account or in providing us Feedback or otherwise, is and will be true and accurate, and will be your sole and exclusive property. All such content is and shall be free of disabling devices, bugs, computer viruses or malware or anything else that can be disruptive or harmful to our Site or any other website or any software or firmware, any computer, mobile phone, tablet, or other device or technology of ours or of any Cause, Sponsoring Organization, PayPal or any other person involved with the use of our Site or the collection and transfer of funds or otherwise.
2.5 Without limiting the generality of anything else in the Terms, the allocation of corporate funds to be donated to a Cause, and the use of the Givkwik system to donate them, for and one behalf of a corporate CSR team or otherwise for and on behalf of a Campaign Sponsor must have been approved by all necessary organizational consent. We may require evidence of such consent; but, whether we do or not, the persons registering and creating a Campaign for an on behalf of the purported Campaign Promoter shall, by doing so, represent to us that all such consents have been obtained and shall be responsible for indemnifying us under the indemnification section below as a result of any violation of this requirement.
3.1 End Users will not pay us any fee, at any time, for any reason. Any payments that may be made by End Users will be voluntary and only if you choose to make a donation into a Donor Advised Fund using our system.
3.2 A Cause that chooses to create a profile on the Site may create a standard profile free of charge (subject to the terms of our onboarding agreement with the Cause). If we ever offer the option for a Cause to create a profile that is more robust than our standard, complementary profile on a fee-basis arrangement, this will be covered in the onboarding agreement for Causes. Our current self-service onboarding agreement for Causes can be accessed by clicking on the link for the agreement where located on your browser, mobile device, tablet or other device.
3.3 We are entitled to receive a fee from any Sponsoring Organization that licenses our technology and for receiving related support services.
3.4 The Sponsoring Organization that manages a Donor Advised Fund into which donations are made is entitled to receive a fee for managing the assets contributed into its Donor Advised Fund.
3.8 The Sponsoring Organization must be tax-exempt under Section 501(c)(3) of the Internal Revenue Code in order to license our system. That means that your donation is tax deductible under the rules of the Internal Revenue Code. We are not giving tax advice, and you should check with your personal tax advisor, but it is our understanding as of the date of these Terms that the value of your donation is deductible without regard to any fees that may be earned in processing your payment or managing the DAF. Any fees paid to Givkwik are paid by the Sponsoring Organization to us in our capacity as a third-party vendor and licensor. But, again, you must check with your own tax advisor to determine whether and to what extent this applies to you and whether and to what extent any other tax matters are important to you.
4. Prohibited Uses
4.1 The Site may be accessed, a user account and profile created, and our Services used for lawful purposes only. You agree to comply with and abide by not only the Terms but also all applicable laws in connection therewith. Without limiting the generality of the preceding, you agree that you will not do any of the following: (a) include or use any false or inaccurate information in any profile; (b) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (whether lawful or unlawful), as well as viruses or other computer code that may interrupt, destroy, limit the functionality of the Services, or interfere with the access of any member or other user to the Services; (c) circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Content; (d) use any meta tags or other hidden text or metadata utilizing a Givkwik name, trademark, URL or product name; (e) use manual or automated software, devices, scripts robots, other means or processes to access, scrape, crawl or spider any web pages contained in the Services; (e) attempt to or actually use, receive or participate in our Services by any means other than through the Site; (f) attempt to probe, scan or test the vulnerability of the Site or our system or network, or breach or impair or circumvent any security or authentication measures protecting the Site, or our Services or other aspects of our system; (g) attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code of any Application used to provide the Services; (h) use or access the Site or use, receive or participate in the Services in any way that competes with Givkwik or any Sponsoring Organization licensing our system; (i) encourage or instruct any other individual to do any of the foregoing; (j) hold out Givkwik or any of our Affiliates as a fundraiser; and/or (k) take any other action or do any other thing not expressly contemplated herein but otherwise violative of the nature, purpose, and/or spirit of these restrictions.
4.2 Our Property (as that term is defined below) and property used by us any that may be owned by an Affiliate or a third-party licensor is protected by law. You may not remove, alter or obscure any of our Property or other property used by us, or any notices related thereto that may be included in or accompany the Site or the Services. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or the Services, except as expressly permitted in the Terms. Any feedback, comments and suggestions you may provide for improvements to the Site or Services (“Feedback”) will be the sole and exclusive property of Givkwik and you hereby irrevocably assign to Givkwik all of your right, title, and interest in and to all Feedback in exchange for your limited and conditioned license to use the Site in accordance with the Terms and without the need for any further consideration.
4.3 The Services provided by Givkwik are not, and shall not be construed or held out to anyone as, fundraising on behalf of any organization, whether listed within the Site or otherwise; neither are we fundraising for any Sponsoring Organization.
5. Privacy and Communications
5.2 As part of the Services, you may receive push notifications, SMS messages, picture messages, video messages, alerts, prompts, emails or other types of messages directly sent to you outside or inside the Site (“Push Messages”). You will generally have control over your Push Message settings, and can opt in or out of these Push Messages (with the possible exception of infrequent, important service announcements and administrative messages, discussed below.) Please be aware that messaging fees or other costs or expenses may be attributed to you for Push Messages depending on the message plan you have with your wireless carrier, Internet service provider or other similar provider; these will be your responsibility without condition.
5.3 We may want or need to provide you with certain communications, such as service announcements, administrative messages, and other information about the Site, our Services, various Causes, Donor Advised Funds, Sponsoring Organizations, or other matters. These communications are part of the Services and your user-account conditions, from which you may not be able to opt out.
5.4 If we ever use the Site for providing third-party advertising, that may subject these Terms to modification.
6.1 Subject to your compliance with these Terms, the following are permitted to you under a license and/or sublicense in which you are the licensee or sub-licensee and we are the licensor or sub-licensor: (a) use of the Site by means of a computer web browser, mobile device, tablet or other device; (b) use of the Site by means of any mobile device application we may make available for supported mobile devices, tablet devices, or other device; and/or (c) registration and creation of a user account and profile on the Site and participation in the Services. We may from time to time license other related software or technology; if so, that will also be subject to our license terms. As between you and us, licenses granted to you are each granted to you on a limited, royalty-free, non-exclusive, non-transferable, non-sub-licensable, revocable basis. Licenses for use of applications which may be downloaded to supported devices entitle you to download one copy of such application to each supported device owned by you. If any use of the Site or Services is, for whatever reason, not expressly covered by the foregoing definition, you agree that the same was intended to be made available to you under a licensed right, and will be deemed a license granted to you subject to the Terms. All licenses are granted solely for your own personal, non-commercial use in accordance with the Terms.
6.2 Unless earlier terminated, suspended, limited or cancelled under the Terms: (a) the license granted to use the Site by means of a computer web browser, mobile device, tablet or other device will begin and end with each visit made by you to the Site; (b) the license granted to use the Site by means of a downloadable application will begin immediately upon commencement of the download process and will terminate when the application is deleted from your device; and (c) the license granted to create a user account and profile will begin upon your registration with us and will end upon termination of your account by you, or upon suspension or cancellation of your account by us for whatever reason. Your license grants you no more than that which is expressly provided for in the Terms; if for some reason the scope of any license is deemed to be broader than the language of the Terms as provided on the face of such Terms, then you agree that it will be limited in whatever sense that we may determine, for whatever reason or no reason.
6.3 Neither your use of the Site nor any express or implied license to use the Site creates, nor shall the same be construed as creating, any ownership, control, or other right or interest of yours in or to any of our Property or any property of any third party. You shall not use any of our Property without our express, prior, written consent, nor shall you use any property of any third party on the Site without their express written consent (and ours, as well, if applicable). Any express or implied license to use the Site or participate in any Services shall be limited and conditioned in our sole discretion and may be changed from time to time or at any time by us, without notice and for any reason or no reason, and no such license shall be construed as creating any right to or expectation in any future, subsequent, repeated, additional, or other license, nor shall it be deemed to have any duration other than as we may determine or change in our sole discretion for any reason or no reason.
6.4 Licenses granted to us by Causes, Campaign Promoters, or Sponsoring Organizations shall be as provided for in writing for the relevant arrangement with any such Cause or Sponsoring Organization, which will incorporate other license provisions in these Terms unless expressly provided otherwise in such writing.
6.5 No license granted to you under the Terms shall permit you to, and you shall not, take any action that would be consistent with ownership by you of, or inconsistent with our ownership of, the Property that is subject to the license or any other Property of ours or any third-party property used by us. Without limiting the generality of the foregoing or anything else in the Terms, you shall not: (a) copy, modify, or distribute the Site or any aspect of the Site (including but not limited to any website hosted on any domain, mobile phone application, or tablet application); (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Application or the Services to any third party; (c) decompile, reverse-engineer, disassemble, or create derivative works of the Application or the Services; (d) make the functionality of the Application or the Services available to multiple users through any means; or (e) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms. No other licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Givkwik or its licensors, except for the licenses and rights expressed granted in these Terms.
7. Termination, Suspension, Cancellation
7.1 Other than Campaign Promoters during their Campaign, after you register and create and account, you may terminate your account at any time and for any reason by deleting your account via your account access page after logging in, or by sending Givkwik notice. Upon any termination by you, your account will no longer be accessible. Any termination request sent to us will be handled as soon as practicable, though we will try (but do not promise) to do so within 30 days after receipt of such a request.
7.2 We may, for any reason or no reason, temporarily suspend or permanently cancel your account, or limit your access to or use of the Site or participation in our Services, with or without giving notice. After any such termination, suspension or cancellation, we will have no further obligation to you with respect to the Site, your account or profile, our Services or otherwise (other than such duties as may exist by law concerning the privacy of Registration Data that are not waived by the Terms). The preceding sentence shall not be construed as an admission that we ever had any obligations to you (other than such obligations as may be expressly assumed by us in the Terms or as may exist by law and are not waived by the Terms). Upon termination, any limited or conditioned licenses and other rights that may have been granted to you under the Terms to use the Site will immediately be terminated without any notice or any further action being required. Givkwik will not be liable to you or any third party for any such termination or cancellation. Upon any termination by you, or suspension or cancellation by us, any Registration Data, Feedback or other content or information that you have submitted to the Site may no longer be accessed by you, and any ownership we may have therein will not be affected by such termination, suspension, or cancellation. Furthermore, we have no obligation to maintain any information stored in our database related to your account or profile or to forward any information to you or any third party.
7.3 Closing your Givkwik account does not extinguish your Registration Data, profile information, submitted content, or other data or information we may have in connection with your account, and we will continue to store such data, information and content (including but not limited to your transaction history and your prior use of and activities on or through the Site) for not less than such period as may be required by law or as we may determine to extend in our sole discretion (subject to applicable law). Any termination by you, and any suspension, limitation, or cancellation by us of your account or your status with us, will not affect your obligations or our rights under the Terms, including (but not limited to) our rights and your obligations concerning ownership, indemnification, and limitation of liability and any other provision of the Terms which either expressly or by its nature or context, in our sole determination, is intended to survive such suspension, termination, limitation, or cancellation.
7.4 Any suspension, limitation, or cancellation of your account by us due to your violation of the Terms will not limit or in any other way adverse to us affect other remedies (whether legal equitable or otherwise) that are or may become available to us.
8.1 If you contribute any money into a DAF (or otherwise contribute funds to a Campaign), you understand and agree that it is and shall be deemed a voluntary donation to the Sponsoring Organization (or to any other Cause related to such Campaign, unless expressly provided for otherwise in the terms of the specific Campaign) and shall become its property immediately after the donation is made and shall be irrevocable without condition.
8.2 As between you and Givkwik, the following are the sole and exclusive property of Givkwik (although certain rights may exist in one or more Affiliates or third-party licensors as between us and any of them): the Site and all related domain names; the “look and feel,” design and content of the Site and the Site user interface; software and code of any kind; our business, data, information, and payment and processing systems and concepts; the name Givkwik and any similar iterations thereof; the phrases “Givkwik Impulse Philanthropy” and “Impulse Philanthropy” and any similar iterations thereof, and the phrases “Democratizing Philanthropy,” “Give Now, Givkwik,” and any similar iterations thereof; our logos, our product names and service names and slogans and all related words, names, symbols, devices, logos and similar iterations or variations thereof; all content on the Site; all other trademarks, service marks, trade names, trade dress, logos, any and all copyrights and other rights to words, sounds, images, designs, videos and other content used in connection with our Site; and/or other protected intellectual property used in connection with the Site and/or the Services; all so-called moral rights, goodwill, rights and proceeds, and any other kind of right or interest that is associated with or symbolized by or that flows from any of the others; and every other thing which under the Terms is or becomes our property, including but not limited to all Feedback (our “Property”). Any of the foregoing that, as between Givkwik and an Affiliate or third party licensor, is the property of such an Affiliate or licensor is used by us with permission.
8.3 Any opportunity that may be given to an End User to vote in a Giving Campaign is not in the nature of a right, and the End User shall not have any ownership or control rights or interests in or to any donation as to whose allocation she or he may be given a chance to vote; instead, votes shall be in the nature of a recommendation or personal preference. The terms of a Campaign are subject to change before or during the Campaign, including (but not limited to) terms related to the opportunity to vote in a Giving Campaign and the opportunity for an End User in a Campaign to contribute her or his own funds to the Campaign. When an End User votes in a Giving Campaign, she or he is telling us and the Campaign Promoter how s/he feels donated funds should be ultimately allocated (whether by a Sponsoring Organization for funds donated into a DAF or by the Campaign Promoter directly if its donated funds are retained and accounted for by it) to one or more Causes. Although generally we anticipate that a Sponsoring Organization will choose to follow End User recommendations, there can be no guarantee given the rules governing Donor Advised Funds by the Internal Revenue Service and US Treasury Department. Voting your recommendations neither gives you the right to demand how donated funds will be distributed or to demand that it must be distributed at all, nor does it create any duty on our part or on the part of the Sponsoring Organization.
8.4 In the Terms, on the Site, and/or in our communications with you, we may refer to “your” user account, “your” Registration Data or other information, or “your” content, or otherwise use language that may grammatically appear to indicate possession, ownership, or control thereof by you. If we do so, that is for convenience of communication and indicates no more than that such information relates to you and your involvement with us, and does not indicate or effectuate any actual or constructive ownership, control, possessory or other similar right or interest in you unless required otherwise by applicable law.
9. Third-Party Sites, Services and Content
9.1 The Site and/or the provision of Services may contain, link to, refer to, or use: (a) content, information, materials, or resources of third parties (including but not limited to Causes, DAFs and financial-transaction processors); (b) websites or applications of third parties (including but not limited to Causes, DAFs and financial-transaction processors); (c) widgets or other software code or other technologies of third parties (including but not limited to Causes, DAFs and financial-transaction processors); and (d) access to services provided by third parties (including but not limited to Causes, DAFs and financial-transaction processors).
10.1 Your use of the Site and any participation in our Services is your choice and shall be at your sole discretion and risk. You agree that we shall not be responsible for any harm to your computer, tablet, mobile device, or any other device with which you use the Site or participation in any Service, or for any loss of data or other harm that does or may result from your use of the Site or participation in any of the Services. Neither Givkwik nor any Affiliate of Givkwik makes any representations or warranties: (a) regarding the security, accuracy, reliability, functionality, timeliness, performance or other aspects of the Site or any of the Services; or (b) that the Site or any of the Services will be error-free or that if there are any errors that they will be corrected either on a timely basis or at all. Neither Givkwik nor any Affiliate of Givkwik will have any liability or other responsibility to you for any access or usage charges that are or may be charged by your Internet service provider, wireless carrier, or other similar service provider whose services are related to any device that you use to use the Site or participate in any of the Services.
10.2 Givkwik disclaims any and all liability and other responsibility for any technical or other failures or errors of, on or in any way connected with or related to the Site and/or any of the Services, including but not limited to push messages sent erroneously due to technical failures or errors. Givkwik anticipates that it will use reasonable efforts to correct any such failures or errors swiftly after discovering them or being informed about them. If you think you have received pushed messages in error or experienced other technical failures, please contact us immediately.
10.3 The Site and Services, and all materials, information, products and services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. Givkwik EXPRESSLY DOES NOT MAKE AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED AND/OR STATUTORY, RELATING TO THE SITE AND SERVICES, INCLUDING BUT NOT LIMITED TO: WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, AND/OR COURSE OF PERFORMANCE. No advice or information, whether oral or written, express or implied, obtained or inferred by you from Givkwik or any Affiliate of Givkwik, will create any warranty not that is expressly stated in the Term. Any warranty that may be included or construed to be included in the Terms that is later modified or terminated by virtue of a change to the Term shall in all cases be retroactive unless expressly prohibited by law.
10.4 You understand and agree that Givkwik does not practice discrimination, that Givkwik respects the rights of all persons to participate in the non-profit and for-profit sectors of our communities under the laws then in effect, and that our mission to democratize philanthropy means that we may run Campaigns with your business competitors, or for non-profit Causes that may be viewed as being “competitive” with one another. You understand and agree that we may run Campaigns for Promoters, or Campaigns intended to benefit Causes, with whose business purposes or practices, mission statements, vision statements, principles, opinions, beliefs, speech, political philosophies or activities, traditions, customs, religious practices, and/or other indicia or expressions of varying cultural contexts or ideologies (collectively, “Opinions”) you do not agree. While we will want to make every commercial effort that we feel to be practicable to avoid juxtaposing the listing on our Site of persons whose differences are sufficiently fundamental that we feel it might cause discomfort, we cannot and do not make any representation that this will never occur, and you agree to such a possibility. So long as any Giving Campaign is not unlawful and any Promoter is not violating its promoter agreement with us, and so long as any Opinion of any other Promoter, Cause or other User (with which you may or may not agree or identify) is, or is related to, a matter which, in our pluralistic, culturally inclusive, and ideologically diverse society, is generally subject to differences of opinion among people of presumed goodwill, we will honor such Giving Campaign and will respect such differences as part of both our democratic heritage and vision. Notwithstanding the foregoing, you understand and agree that no person has the right to be a Promoter, that no Cause has the right to benefit from our Services or use our Site, and that no other User has any right to use our Site or participate in our Services, and that we reserve the right to choose not to run a Campaign if we believe that the same is inconsistent with our reputation or mission as we may at any time choose to define it, or with the social good or spirit of community as we may at any time choose to define it.
10.5 From time to time, Givkwik may offer promotional giveaways by which we may give to users of the Site promotional items such as T-shirts, coffee mugs, mouse pads, or other similar promotional items. If we do, you will not be required, in order to participate in such a giveaway, to make any contribution or pay any amount unless expressly indicated otherwise. The determination of whether and when to give any such item, and the determination of what promotional item or items to give, will be in our sole discretion, and we may discontinue any such giveaway program at any time without notice. The determination whether and how frequently we may give any such item may be tied to your registration of a user account on the Site, the time spent by a user on the Site, the number of clicks on active links that a user initiates on the Site, or other similar determinants. We may determine or be required to restrict giveaways to persons of a minimum age; if we do, your use of the Site, and/or your agreement to receive of any such item shall be your representation to us that you are of at least that age. If you are notified that you have been selected to receive such an item, you may be required to provide us with certain information such as your name, mailing address, phone number, email address, proof of age, and similar personal information. If you are notified that you have “won” such an item, you will not have a contractual or other legal or moral right to receive it, and you agree to not rely or depend on such a notification in deciding whether to act or refrain from acting in any way and if you do you assume the risks thereof; you understand and agree that we may later determine not to send the item if, for example, the item is no longer available, or for any other reason. Our decision is final with respect to whether, when, and how to effect any giveaway and/or to conduct the promotion thereof, and as to all other matters relating to any giveaway or promotional item. We reserve the right to disclose the name of any “winner” of any promotional giveaway, and by your use of the Site and/or acceptance of the promotional item you agree to that without condition or revocation.
You agree to defend and indemnify Givkwik and its Affiliates for, and hold Givkwik and its Affiliates harmless from and against, any losses, costs, damages, expenses, liabilities, and other obligations and responsibilities of any kind and/or nature (including without limitation attorneys’ fees) that are or may be incurred by Givkwik and/or any Affiliate of Givkwik that arise out of or are in any way connected with any of the following acts or omissions by you, or by any person acting at your behest or request, or by any person over whom you have actual or constructive control under any theory of law or equity or otherwise, or by any person using your account to access the Site or participate in any Services even if not under your control or acting at your behest or request: (a) use of the Site or participation in any Services; (b) breach of contract; (c) tortious act; (d) non-compliance with any law or governmental order or regulation; (e) violation of any of the Terms at any time in effect; (f) violation of any third-party right (including without limitation any intellectual property, publicity, confidentiality, property, privacy or other right of any kind or nature); (g) the initiation or continuation of any legal, equitable or other action or proceeding brought against us or any Affiliate of ours seeking or claiming damages or any other remedy in excess of or otherwise different from that which is expressly provided for and limited by the Terms; and (h) any other act or omission. As between us and any party with respect to whom we are claiming a right to indemnification, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses and otherwise.
12. Limitation of Liability
12.1 If you ever incur or suffer, or claim to have incurred or suffered, any loss or injury of any kind whatsoever (whether to person, property, reputation, mental or emotional wellness or otherwise) in any way related to or arising from your use of the Site or your participation in any Services, your remedy shall be limited to a damages payment not to exceed one hundred dollars ($100) without exception or condition. Notwithstanding the foregoing, if you are part of a group action of any kind seeking a remedy of any kind or nature against Givkwik or any Affiliate, your remedy shall be limited to a damages payment of one dollar ($1.00).
12.2 In no event will Givkwik or any Affiliate of Givkwik be liable to you for any equitable remedy or for any damages or for any other remedy of any kind or nature other than as expressly provided in the preceding paragraph of this section, on any legal, equitable or other theory of liability, responsibility or culpability. Without limiting the generality of the foregoing, we will not be liable to you for any hedonic, indirect, incidental, special, punitive, speculative, or consequential damages arising out of or in connection with your use of the site or participation in our services, whether or not the damages are foreseeable (to any person) and whether or not Givkwik has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction, and in no event will Givkwik’s cumulative liability (in one matter or in a series of related or unrelated matters) exceed the aggregate of the amount described in the preceding paragraph of this section.
12.3 Notwithstanding anything herein to the contrary, we shall not be liable or in any other way responsible for any loss, cost, expense, injury, liability, or other obligation or responsibility of any kind or nature that you or any other person affiliated with you in any way may incur or suffer as a result of your or their use of, reliance on, access to, participation in, or other arrangement or relationship of any kind that is related to any third-party content, information, material, resource, link, website, application, widget, software code, other technology, good, service, or any other thing; or for our assistance (whether actual, alleged or assumed) in conducting transactions by means of this site, including but not limited to any processing of donations via any third-party financial-transaction processors.
12.4 Under no condition whatsoever shall we or any Affiliate of ours be responsible for attorneys’ or other fees, expenses, losses, costs, or obligations you (or any representative, agent, attorney, attorney-in-fact, or other person affiliated with you) may incur as the result of your bringing any action, enforcing any right, or seeking any claim or remedy as against us or any Affiliate, whether or not brought in accordance with the terms, except and only to the limited express extent described in section 13 below.
Some jurisdictions may not allow the exclusion of certain warranties or the exclusion or limitation of liability for limited, consequential or incidental damages, so the above limitation may not apply to you.
14. Dispute Resolution.
Your use of the Site constitutes your waiver of any right that may otherwise exist or arise to settle by trial (whether jury trial or bench trial) any dispute that you may have as against us (or any of our Affiliates) that in any way (whether in whole or in part) arises from or is related to the Terms, the Site or the Services. Any such dispute shall be settled only as follows, without exception or condition. Any such dispute that is not settled by your and our mutual agreement within one hundred twenty days after it is made known to us (or an Affiliate of ours, as the case may be) by you in writing shall be settled exclusively by final and binding arbitration, in the City, County and State of New York (or in another city in which we may at such time have a place of business, in our sole determination). Such arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its applicable rules of practice then in effect by a single arbitrator. Such arbitrator shall be an individual agreeable to you and us; and if such arbitrator is not agreed to by you and us within sixty days after formal initiation of the arbitration proceeding, such arbitrator shall be an individual having reasonable experience in matters of the type provided for in this Agreement and who is chosen by the AAA. Decisions by the arbitrator shall be final and binding, and not subject to appeal. Awards by the arbitrator shall be satisfied by the party responsible therefor within thirty days after the award is rendered; and if any award is not satisfied within such time, the prevailing party may enforce the award in the state or federal courts in New York City (or in another city in which we may at such time have a place of business, in the sole determination of the party seeking to have the award enforced). For the purposes of an action to enforce an arbitration award, you and we each consent to the sole and exclusive personal jurisdiction of such courts, waive any defense of inconvenient forum and any other defense to such jurisdiction or venue, and consent to service of process in any manner reasonable under the circumstances that is not prohibited by law. The non-prevailing party in any such arbitration shall be responsible for all fees and expenses (including, but not limited to, reasonable attorneys’ fees) of the prevailing party incurred in connection with the arbitration, and/or with any action that may later be required by the prevailing party to enforce an arbitration award; and if each party prevails on at least one point of dispute, then the arbitrator shall allocate responsibility for sharing the aggregate costs of both parties as the arbitrator determines to be equitable, provided that the party with the greater prevailing position shall have the lesser share of the aggregate costs. Notwithstanding the foregoing provisions of this paragraph, we may pursue any remedy available at law and/or in equity for any violation by you of Section 2.4.
Notwithstanding anything to the contrary herein, we shall be entitled to seek equitable relief in any federal or State court in the United States or elsewhere having subject matter jurisdiction without either having to post a bond or first submitting the matter to arbitration or mediation with respect to actual, alleged or threatened breaches by you of any provision herein relating to indemnification or ownership of our property, in which case, you (for yourself and your heirs, successors and assigns, and any of your other their affiliated individuals or entities) consent to the jurisdiction of such courts and agree that service of process or notice in any such action, suit or proceeding shall be effective if delivered in any manner not prohibited by law and hereby waive any claim or defense of inconvenient forum or any other defense to any such jurisdiction or venue. The rights set forth in this paragraph are in addition to any other right or remedy available to the party seeking equitable relief, at law, in equity or otherwise.
If you have any questions about these Terms, please contact us at email@example.com.
Last updated as of: March 19, 2018.