Customer acknowledges that GiftFold owns all right, title, and interest in and to any products, services, tools, know-how, processes, documentation and software used or created by GiftFold in connection with the Service. Customer acknowledges and agrees not to claim any right, title and interest in and to the Service and, except for the express authorized usage contained herein, no such right, title or interest is transferred to Customer.
2. Customer Covenants
Customer agrees the Service provided by GiftFold for Customer under these Terms may not be resold or otherwise transferred by Customer to any person or party. Customer agrees that it shall not directly or indirectly (i) modify, enhance, alter, or prepare derivative works based on any of the Service, (ii) decompile, decode, unlock, attempt to discover the source code of, or otherwise reverse engineer, the Service, (the “Reverse Engineering”); and (iii) assist, enable, or permit others to do the foregoing.
3. GiftFold Covenants
GiftFold does not guarantee any level of success in terms of donations or any other aspect of the Service.
4. GiftFold Right to Subcontract
GiftFold may subcontract all or any portion of the services to be performed by it according to the Terms. GiftFold is authorized to disclose Confidential Information (as defined in Section 7) of Customer as is reasonably necessary for GiftFold to perform its duties hereunder through any subcontractors; provided that any recipient of such Confidential Information shall execute a confidentiality agreement with restrictions at least as stringent as provided in Section 7.
5. Automatic Payment of License Fees
Customer agrees and understands that GiftFold shall process agreed upon license fees on a monthly basis. License fees shall cover the use of licensed product for the month following payment. Payments will automatically recur each month. Payments may be made by credit card or debit card. Customer may terminate these Terms at any time in writing; however, no refunds of license fees will be paid for unused days in the month of receipt of cancellation request.
Customer indemnifies and holds GiftFold harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by GiftFold as a result of any third party claim against GiftFold pertaining to the Customer’s use of the Service, for any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information or content provided to GiftFold by Customer, or for any violation of any of these Terms.
“Confidential Information” of a party shall mean all confidential or proprietary information and documentation of such party, whether or not marked as such. Confidential Information does not include (i) information that is or becomes generally known to others, but not as a result of breach of confidentiality obligations or other wrongful acts; (ii) information that was known to the receiving party at the time of disclosure; (iii) information learned from a third party holding same lawfully and not subject to confidentiality obligations; and (iv) information required to be disclosed by law, regulation, or court order, to the extent such requirement is actually imposed and only after prompt notice to the other party. Customer and GiftFold agree to hold the other’s Confidential Information in confidence; to use the other’s Confidential Information only to perform the duties and exercise the rights set forth in these Terms; and not to disclose the other’s Confidential Information to third parties (except authorized employees and agents having a reasonable need to know) without the disclosing party’s express prior written consent. Customer and GiftFold shall safeguard the other’s Confidential Information against unauthorized use and disclosure with means at least as secure as it employs to safeguard its own Confidential Information, and in no event with less than reasonable means. The obligations of confidentiality herein shall survive the termination of these Terms for so long as the information at issue continues to meet the definition of Confidential Information.
8. Offensive Content & Use
Customer agrees to NOT upload or display any content that: (a) contains nudity, sexually graphic content, drug use (implied or literal), or material that is otherwise deemed explicit, or in poor taste by GiftFold; or (b) content that contains threatening, abusive, harassing, defamatory, libelous, invasive, hateful, or racially, religiously, ethnically or otherwise objectionable material. Further, Customer agrees to NOT use the Service to create fundraising campaigns, raise donations, or send email receipts for any organization or event involved in the above. Doing so will result in removal of your campaigns(s) and immediate termination of your account. GiftFold reserves the right to refuse service to any campaign it deems to be in poor taste.
GiftFold will provide a reasonable level of support to Customer between the hours of 9am to 5pm Pacific Time, Monday through Friday. Support may be available outside of these hours for an additional fee. GiftFold will not be responsible to provide any support directly to Customer’s donors.
Customer acknowledges that GiftFold may use Customer’s brand, logo or name in conjunction with case studies, Customer examples, product showcases on GiftFold’s website, email communication with Customers, printed material and other promotional tools used by GiftFold.
11. Limitation of Warranty
The Service is provided “as is” and without any warranty, express, implied or otherwise, regarding such scope of work or Service accuracy, performance, or any other matter. GiftFold does not warrant that the Service is without error or that the Service will be uninterrupted or error free in its operation or that the Service will satisfy Customer’s requirements. Notwithstanding anything herein to the contrary, GiftFold hereby disclaims any warranty of merchantability, fitness for a particular purpose, and non-infringement of third-party rights. GiftFold makes no warranty, representation or promise not expressly set forth in these Terms.
12. Limitation of Liability
GiftFold’s aggregate liability arising out of or relating to these terms, for any and all damages that you might incur (regardless of the form of action giving rise to such liability, whether in contract, tort or otherwise) shall not exceed Customer’s monthly base license fees for a twelve (12) month period. Without limitation of the foregoing, GiftFold shall not (a) have any liability to Customer for any special, consequential, exemplary, incidental, or indirect damages (including, but not limited to, loss of profits, revenues, data and/or use), regardless of the theory or liability (including tort, contract and negligence), and even if advised of the possibility thereof; or (b) bring any claim arising out of or in connection with these Terms more than twelve (12) months after the cause of action accrues. You expressly agree that use of Service is at your sole risk. Service is provided on an “as is” and “as available” basis.
13. Equitable Relief
Customer recognizes that the covenants contained in Sections 1,2,3,5 and 8 hereof are reasonable and necessary to protect the legitimate interests of GiftFold, that GiftFold would not have entered into these Terms in the absence of such covenants, and that Customer’s breach or threatened breach of such covenants shall cause GiftFold irreparable harm and significant injury, the amount of which shall be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, Customer agrees that GiftFold shall be entitled, without the necessity of posting of any bond or security, to the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of such covenants and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to GiftFold at law or in equity.
Customer may terminate these Terms immediately, at any time, by delivering a written termination notice to GiftFold; however termination any time prior to the last day of the month will result in the forfeiture of any license fees paid for that month’s service. GiftFold may terminate these Terms at any time by giving at least sixty (60) days’ prior written notice; provided that GiftFold may terminate these Terms immediately by delivering a written termination notice to Customer upon the material or continuing breach of these Terms by Customer or if Customer infringes or misappropriates the intellectual property rights of GiftFold. Upon termination of these Terms, (i) each party shall return or destroy, at the election of the other party, all Confidential Information of the other party, (ii) all licenses granted hereunder shall terminate automatically, and (iii) each party shall cease using or displaying all materials licensed and/or provided to it by the other party. All transactions in progress prior to the date written notice of termination is deemed given (or such later termination date specified in the notice or herein, if any) shall be completed by GiftFold and Customer shall remain liable for the fees and charges associated with such transactions. The following Sections of these Terms shall survive its termination: 1,2,3,4,6,7,8,10,11,and 13.
These Terms are binding on and inures to the benefit of the successors, assigns, and legal representatives of the parties; however, Customer’s interest shall be assigned only with the prior written consent of GiftFold. No transfer or assignment of these Terms shall release Customer from its obligations. No waiver by either party shall be a waiver of any subsequent breach of or failure to perform the same or any other term, condition, or obligation hereof. Each party shall be solely responsible for making any governmental filings or reports which such party is required to make as a result of the transactions arising out of these Terms. It is agreed by the parties hereto that venue of any action arising under these Terms shall be in Los Angeles County, California, and the laws of the State of California (excluding its conflicts of laws rules) shall govern these Terms. Should any part of these Terms contravene public policy, or laws of the jurisdiction in which it is sought to enforce the same, then such part shall be considered null and void and have no force and effect, and the balance of the terms and conditions of these Terms shall remain valid and in full force and effect. Any required notice under these Terms shall be in writing and delivered to the contact person for notices designated by a party (i) by personal delivery, (ii) by facsimile transmission when receipt is confirmed orally, (iii) by overnight courier upon written verification of receipt, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.