Effective date: January 1, 2023
1. SERVICES AND SUPPORTT
1.1 Subject to the terms of this Agreement, Company will provide Customer the services set forth in the Service Order to which these Terms and Conditions are attached (“Services”).
1.2 As part of the Services, Customer will be provided with access to Visit.org’s online platform (the “Visit.org Platform”) in connection with the experiences organized through the Services (“Experiences”). In order to access and use the Visit.org Platform, Customer will identify an administrative user name and password for Customer’s Company account and enable its authorized users to establish login credentials on the Visit.org Platform from time to time. Customer shall be responsible for all activities on the Visit.org Platform under Customer’s and its users’ login credentials.
1.3 The Services involve coordination of Experiences with third party organizations which provide suitable volunteer opportunities and related Experiences (each an “Org” and collectively “Orgs”). Experiences may need to be rescheduled or modified if required by the applicable Org from time to time; Visit.org will use best efforts to minimize any such changes.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent configuration is enabled or expressly permitted by Company or authorized within the Services or Software); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement
2.3 Customer hereby represents, covenants, and warrants that Customer will use the Services only in compliance with the applicable laws and regulations. Customer hereby agrees to hold harmless Company and its affiliates against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable costs and attorneys’ fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services and the pricing and terms of this Agreement. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Order Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Service Order for the Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then-current Order Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Order Term as specified in the Service Order. Either party may terminate this Agreement with or without cause, at any time, upon thirty (30) days’ prior written notice to the other party.
6.WARRANTY AND DISCLAIMER
Company shall perform the Services in a professional and workmanlike manner consistent with the Service Order. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall indemnify, defend and hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright, trademark or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the sole control over defense and settlement of such claims and proceedings; Company will not be responsible for any settlement it does not approve in advance in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, BUSINESS INTERRUPTION, LOSS OF DATA, GOOD WILL, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS) RELATING TO OR ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7 HEREIN, COMPANY’S AND ITS SUPPLIERS’ (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS’, AFFILIATES’, REPRESENTATIVES’, CONTRACTORS’ AND EMPLOYEES’ MAXIMUM LIABILITY FOR ANY AND ALL ACTIONS ARISING UNDER THIS AGREEMENT, CUMULATIVELY, REGARDLESS OF THE FORM OF ACTION (AND WHETHER IN TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT, STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE THEN-PRIOR TWELVE (12) MONTHS , IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Company has partnered with Visit.org Philanthropic Foundation (“Visit.org Foundation”, EIN: 88-0889841), a 501(c)(3) tax-exempt public charity, to receive all donations made online or offline in connection with a Customer or an employee or independent contractor of a Customer’s use of the Software (collectively, the “Donation Program”). Visit.org Foundation has exclusive legal control over and ownership of any donations received in connection with the Donation Program, and all donations are final and nonrefundable. Accordingly, Visit.org Foundation will issue a donation receipt to the donor of each donation (each, a “Donor”) and make any filings required by the IRS for recipients of charitable donations. Donations to Visit.org Foundation are generally tax-deductible for U.S. donors. Company and Visit.org Foundation cannot provide any tax or legal advice. If you are using the Software to make a donation, you will be deemed to have recommended that Visit.org Foundation make a grant to the organization that you selected or that is pre-selected on the website or application you used to access the Platform (“Designated Charity”) in an amount equal to the net proceeds of your donation. Please note that not all charitable organizations listed as a potential Designated Charity have affirmatively consented to being included in the Donation Program. When Customers select a potential Designated Charity, they will see a disclosure regarding whether that potential Designated Charity has affirmatively consented to participating as a Designated Charity in the Donation Program. A Designated Charity is not required to consent to be a potential beneficiary of the Donation Program. Subject to a Designated Charity’s satisfaction of the Eligibility Requirements (described below), Visit.org Foundation will make a grant of the net proceeds of the donation (“Grants”) to the Designated Charity. The “net proceeds” of the donation are equal to the gross proceeds of the donation minus platform transaction and credit card processing fees of up to 6% (or up to $10 per check for grants dispersed by paper check) of the gross amount of each donation (collectively, “Transaction Fees”). The Donation Program uses Stripe as its payment processor for all online donations, and all such donations are subject to Stripe’s Terms of Service. During the online donation process, Customers are invited to increase their donation by 3% to help cover these Transaction Fees, this additional amount increases the Customer’s total tax-deductible donation. The Donation Program uses Bill.com as its payment processor for all offline donations, and all such donations are subject to Bill.com’s Terms of Service, which are agreed by Customer with Bill.com. Grant distributions are made by Visit.org Foundation on a monthly basis pursuant to the grantmaking procedures outlined below.
9.2 Customers can choose to donate an amount to Visit.org Foundation to be held in a special donor-advised fund or account, and make recommended grants to one or more Designated Charities thereafter, which are subject to Visit.org Foundation’s grantmaking procedures set forth in these Terms. Customers setting up such donor-advised accounts have up to three months following the expiration of their contract with Visit.org to make grant recommendations. If such customer has not submitted a grant recommendation for any funds remaining in its account by the end of the three-month grace period, Visit.org Foundation or its representatives will attempt to contact the customer to request a final grant recommendation(s) for the remaining funds in the donor-advised account, which are subject to Visit.org Foundation’s grantmaking procedures set forth in these Terms.
10. GRANTMAKING PROCEDURES
10.1 In order for an organization to be included as a Designated Charity as part of the Donation Program, and receive Grants from Visit.org Foundation, the organization will need to meet the following eligibility requirements: (i) be recognized by the IRS as exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code; (ii) be classified as a public charity under Section 509(a)(1) or 509(a)(2) of the Internal Revenue Code; and (iii) be in good standing with applicable state and federal regulatory authorities (the “Eligibility Requirements”). Visit.org Foundation reserves the right to modify the Eligibility Requirements at any time.
10.2 While Visit.org Foundation will make every effort to respect donors’ preferences, Visit.org Foundation retains exclusive control over all donations made to Visit.org Foundation. In rare instances, a selected Designated Charity may not receive the grant of the Net Proceeds due to failing to meet one or more of the Eligibility Requirements. If a Designated Charity fails to satisfy all of the above Eligibility Requirements, Visit.org Foundation will attempt to contact you and request an alternative recipient charity. If the alternative recipient charity meets the Eligibility Requirements, Visit.org will grant the funds to the recipient charity. If the alternative recipient charity does not meet the Eligibility Requirements, as determined by Visit.org Foundation in its sole discretion, or the donor does not respond to provide an alternate recipient charity, Visit.org Foundation will select an alternative organization to which to grant the funds, however, Visit.org Foundation will strive to select organizations with a similar charitable mission to the initial Designated Charity you selected. Please note that Visit.org Foundation will not issue refunds to Donors, except in cases of fraud, as determined by Visit.org Foundation in its sole discretion. Subject to meeting the Eligibility Requirements, grants equal to the Net Proceeds of any donation benefiting any non-consenting recipient charitable organizations shall be sent no later than 60 days after the end of the month in which the donations or recommended donations are made, unless the recipient charitable organization is not eligible to be sent the funds. Subject to meeting the Eligibility Requirements, grants equal to the Net Proceeds of any donation benefiting any consenting recipient charitable organizations shall be sent no later than 60 days after the end of the month in which the donations or recommended donations are made, unless the recipient charitable organization is not eligible to be sent the funds. Visit.org Foundation or its authorized representative will issue donation tax receipts to all donors who donate as part of the Donation Program.
11. ACCESS TO THE DONATION PROGRAM
If you have access to the Donation Program because you are an employee or independent contractor of a Customer, your access to the Donation Program may be terminated by such Customer at any time and for any reason. If your participation in the Donation Program is terminated, you agree not to access, use or participate in the Donation Program.
12. NO SOLICITATION OR ENDORSEMENT; OPT OUT
12.1 Visit.org provides a selected list of Designated Charities to which you can request that your donation go to support via a grant of the net proceeds of the donation. In some cases, we may also display an organization’s logos or provide additional information about that charitable organization, apart from the aggregated list. Be advised that the listing or display of a charitable organization in the Software or otherwise does not constitute a solicitation of donations; Company does not engage in any solicitation activities on behalf of, or endorse, any of the charitable organizations that may be included in the Donation Program, nor does it consult on the solicitation of contributions, on behalf of any organization that may be included in the Donation Program.
12.2 Organizations that do not wish to be included as a potential Designated Charity in the Donation Program can opt out by sending an email to email@example.com. Subject to its verification of the request, Visit.org Foundation will remove the organization within three (3) business days of such verification.
13.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement, including these Corporate Partner Terms and Conditions and the Terms of Service, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
13.2 Experiences may be recorded for quality assurance and training purposes for their continual evaluation and enhancement. Recordings will not be used otherwise without written consent from the Org, Customer, and/or program participants included in such recordings, as applicable.