Solutions Agreement

This Empower Giving Solutions Agreement is entered into by You and Empower Giving and each party agrees as follows:

1. Welcome To Empower Giving

This agreement sets forth the terms and conditions that govern Your access to and use of Our Solutions. Please contact Empower Giving if You have any questions about this agreement.

2. Ordering Procedures

We will provide You access to Our Solutions and deliver the Services detailed in the applicable Order Form. The Order Form, along with its attachments, which may include statements of work for Services (each an “SOW”), constitutes the complete and entire agreement, and supersedes all other agreements between Us concerning Our Solutions. In the event of a conflict between this agreement, an Order Form, or an SOW, the following order of precedence shall apply: (1) Order Form; (2) this agreement; (3) SOW.

3. Subscription Access And Use

a. Access. You and Your employees may access and use Subscriptions and Documentation for Your internal
business purposes during the term set forth in the Order Form.
b. Suspension; Acceptable Use Policy. We may suspend access to any Solution upon written notice if You
fail to pay fees when due, violate this agreement, or violate Empower Giving’s AUP. Suspensions are rare and exercised in a manner proportionate to the severity of the violation. We agree to work with You in good faith to address any violations in a reasonable manner, to prevent similar violations, and to reinstate the affected Solutions as quickly as possible.

4. Fees, Expenses, And Payment

The financial terms for the Solutions are set forth in the applicable Order Form.

5. Confidential Information

a. Definitions. “Confidential Information” means (i) all information disclosed by one of Us (“Owner”) to
the other (“Recipient”) electronically, visually, orally or in a tangible form which is either (a) marked as “confidential” (or with a similar legend), (b) is identified at the time of disclosure as being confidential, or (c) should be reasonably understood to be confidential or proprietary; (ii) the terms and/or existence of this agreement and the relationship between the parties, Our architecture, software, data, and technology that comprise the Solutions, Order Form(s), SOW(s), and any proposals or other documents that preceded this agreement; and (iii) donor, student, prospect and financial information. Recipient shall not obtain any rights, title, or interest in any Confidential Information of Owner. The obligations in (b) below shall not apply to: information generally known to the public; information independently developed by Recipient without access to Confidential Information; information in the possession of Recipient without an obligation of confidentiality; or information required to be disclosed by court order or applicable law after Owner has been notified.
b. Treatment of Confidential Information. Recipient may only (i) use Owner’s Confidential Information to carry
out the purposes of this agreement; and (ii) disclose Owner’s Confidential Information to those third parties operating under non-disclosure provisions no less restrictive than those set forth in this agreement and who have a justified business “need to know.” Recipient is responsible for any mistreatment of Confidential Information by such third parties. Recipient must protect Owner’s Confidential Information using the same degree of care it uses to protect its own confidential and proprietary information, but in any case, not less than reasonable care, and protect such information in accordance with applicable laws. Upon termination of this agreement, Recipient must return or destroy all Owner Confidential Information in its possession or control, if feasible. If not destroyed, Recipient will continue to protect such information as required above.

6. Security

a. It takes both of Us to protect Your Data and Our Solutions. We have implemented and will maintain
administrative, physical, and technical safeguards designed to: (i) protect against anticipated threats or hazards to the security of Your Confidential Information, and (ii) protect against unauthorized access to or use of Confidential Information that could materially harm You. Our technical safeguards include firewalls, virus and intrusion detection, and authentication protocols. In order to continually improve our safeguards, We reserve the right to make changes to the physical and technical safeguards, policies, and data security programs at any time, provided We will at all times maintain commercially reasonable information security procedures and standards. You and Empower Giving acknowledge that Solutions may include sending email and publishing web pages over the public Internet using SMTP or HTTP protocols, and that these standard protocols do not support many enhanced data security protections. In no case will the use of the public Internet in this manner be deemed to violate Our obligations under this Agreement. You commit to take commercially reasonable security precautions to prevent unauthorized or fraudulent use of Your Data and Our Solutions.
b. We have implemented commercially reasonable, policies and procedures addressing potential
Security Breaches and have a breach response plan in place.
c. Within seventy-two (72) hours of discovery, We will report any Security Breach to You. “Security Breach”
means any unauthorized access, use, disclosure, modification, or destruction affecting the confidentiality of Your Confidential Information. Security Breaches shall not include: (a) “pings” on an information system firewall; (b) port scans; (c) attempts to log on to an information system or enter a database with an invalid password or user name; (d) denial-of-service attacks that do not result in a server being taken offline; or (e) malware (e.g., a worm or virus) that does not result in unauthorized access, use, disclosure, modification, or destruction of Your Confidential Information.
d. In the event of a Security Breach, We will use commercially reasonable efforts to mitigate any negative
consequences resulting directly from the Security Breach and will use commercially reasonable efforts to implement procedures to prevent the recurrence of a similar Security Breach.
e. We will use industry standard methods for the destruction of Your Confidential Information in accordance
with Section 15(c) (Effect of Termination).

7. Your Obligations

Solutions may only be used or accessed from Your devices and systems that meet the System Requirements. You agree to administer and monitor the use of Your login IDs, passwords, and all accesses to the Solutions by Your employees pursuant to the instructions You will receive when Your Solutions are activated.

8. Indemnity

Each party shall indemnify and defend the other party against any third-party claims to the extent arising from the indemnifying party’s gross negligence or willful misconduct. You shall indemnify and
defend Empower Giving against any third-party claims to the extent arising from Your breach of the AUP or Your obligations under Section 7 above. The indemnified party shall give the indemnifying party prompt written notice of any claims for indemnification and the indemnified party agrees to relinquish control of defending any such claim to the indemnifying party, including the right to settle; provided however, that the indemnifying party will not settle any such suit or claim without the indemnified party’s prior written consent if such settlement would be adverse to the indemnified party’s interests. This section states the entire liability of each party with respect to any type of third party claim.

9. Representations, Warranties, And Disclaimer

a. Mutual Representations and Warranties. Each party represents and warrants that (i) it has the right and
power to enter into this agreement, (ii) an authorized representative has accepted this agreement, and (iii) it will comply with all applicable laws and regulations pertaining to this agreement.
b. Empower Giving Limited Warranties. Solutions will materially perform pursuant to their then-current
Documentation. All Services will be performed in a professional manner in accordance with industry standards. If You believe that a Subscription fails to perform as described in the Documentation, You must notify Empower Giving in writing within thirty (30) days of the days of the occurrence of the problem, and Empower Giving will use reasonable efforts to repair or replace the Solution without charge. If a Service has been improperly performed, You must notify Empower Giving in writing within thirty (30) days of completion of the Service, and Empower Giving will reperform the Service without charge. Services after such time will require a new SOW. The foregoing provides Your sole remedy for Solutions or Services that do not comply with the foregoing promise.
c. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, EMPOWER GIVING EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER EMPOWER GIVING EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY.

10. Limitation Of Liability

EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 AND YOUR PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE GREATER OF (X) $25,000 OR (Y) THE AMOUNT OF FEES PAID OR PAYABLE BY YOU FOR THE SOLUTION FROM WHICH THE CLAIM AROSE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND EMPOWER GIVING AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.

11. Ownership

a. Your Ownership and License. You own Your data, Your Confidential Information and any artwork, logos, trade names, and trademarks that You provide to Empower Giving (“Your Data”). In order for Empower Giving to provide the Solutions, You grant to Empower Giving and its suppliers a nonexclusive, fully paid-up license to use, reproduce, store, modify, and display Your Data. Empower Giving may aggregate information from Your use of Solutions with information from other customers’ use and use and disclose such results on an aggregated and anonymized basis for any purpose provided We do not individually identify You, Your Confidential Information, or Your use of Solutions.
b. Empower Giving Ownership and License. Subject to Your rights to Your Data set forth above, Empower Giving has all right, title, and interest in and to any expressions and results of Solutions, the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, other technical information, and all derivatives of the foregoing created in connection with this agreement (“Work Product”). Empower Giving grants to You a nonexclusive, fully paid-up license to use Work Product, solely to the extent necessary for You and Your end users to use Solutions in accordance with this agreement. If You provide any feedback, comments, suggestions, ideas, requests, or recommendations for modifications or improvements to Empower Giving, You hereby assign all right, title, and interest in any such feedback to Empower Giving to be used for any purpose. All rights not expressly granted to You hereunder are reserved by Empower Giving.

12. Notice

All notices or other communications sent pursuant to or in connection with this agreement shall be made in writing and sent to the applicable address set forth in the Order Form, or as designated from time to time in writing by either of Us. All notices shall be deemed given if delivered receipt confirmed using registered or certified first class mail, postage prepaid, or recognized courier delivery.

13. Force Majeure

Neither party shall be liable for any failure to perform its obligations under this agreement if prevented from doing so by a cause beyond such party’s reasonable control.

14. Dispute Resolution; Governing Law

The parties agree to submit all unresolved disputes between them to arbitration administered by the American Arbitration Association (“AAA”) and governed by the AAA Commercial Arbitration Rules then in effect, except that (a) either party may (i) seek injunctive relief for infringement of intellectual property rights or other proprietary rights in court or (ii) seek a determination as to whether a claim is arbitrable in court (the arbitrator may not rule on his or her own jurisdiction); and (b) Empower Giving may sue in court to collect unpaid amounts under this or any other agreement between Us. For all arbitrated matters, one arbitrator will be appointed under the AAA Commercial Rules, and the locale of arbitration will be Palm Beach County, Florida and under the Laws of Florida, unless the parties mutually agree to another locale before appointment of the arbitrator. YOU AND EMPOWER GIVING EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING UNDER OR RELATED TO THIS AGREEMENT. This agreement is governed by the laws of the State of Florida, excluding choice of law principles. The parties agree to waive their right to file a class action, to seek relief on a class basis, or to pursue claims in any consolidated proceeding. The parties acknowledge that their consent to arbitrate is conditioned on the waiver in the preceding sentence (“Waiver”). If any court or arbitrator determines the Waiver is void or unenforceable or that an arbitration involving the parties can proceed on a class or consolidated basis, then the parties will be deemed to have not consented to arbitration.

15. Term And Termination

a. Term. The term of this agreement commences on the Effective Date and continues until terminated
pursuant to this Section 15 or until the expiration of the current term if cancelled in accordance with an Order Form.
b. Default. Either party may terminate this agreement if the other party materially defaults in performing its
obligations under this agreement and the default remains uncured for at least thirty (30) days following receipt of written notice from the party requesting termination, and immediately by Empower Giving upon written notice for Your failure to pay undisputed invoices when due. In addition, this agreement may be terminated by Empower Giving upon written notice if You make an assignment for the benefit of creditors by You or dissolve Your entity.
c. Effect of Termination. Upon termination of this agreement or termination of a Solution, Empower Giving may
immediately cease providing the terminated Solution(s). If Empower Giving has Your Data in its possession upon termination, to the extent technologically feasible, Empower Giving will provide You with a copy of Your Data in its then-standard database format. If Empower Giving creates archive copies of Your Data during the course of performing its obligations under this agreement, You agree that Empower Giving may retain such copies following termination subject to Empower Giving’s internal practices for record destruction. All earned and unpaid fees and expenses are due upon termination.

16. Statutory Exception

If You are a qualified public educational or government institution, any part of this agreement which may be invalid or unenforceable against You because of applicable state or federal law (example: all or part of the Indemnity section) shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If required by law this agreement will be governed by applicable state or federal law.

17. General

Except as specifically stated herein, remedies are cumulative. No failure or delay in enforcing any term or exercising any option shall be construed as a waiver unless agreed to in writing by Us. If any provision of this agreement is held to be unenforceable, the other provisions shall remain in full force and effect. No purchase order or other ordering document that purports to modify or supplement the printed text of this agreement or any attached or referenced document shall add to or vary the terms of this agreement. All proposed modifications to this agreement, Order Form(s) or SOW(s) are objected to and deemed material unless otherwise mutually agreed to in writing. Order Forms may be executed electronically, and in counterparts, which together form one legal instrument. A copy of an executed Order Form and any purchases within a Solution and made by reliable means, including electronic acceptance, shall be considered an original. You may not assign Your rights or obligations under this agreement without Our written consent. Empower Giving performs its obligations under this agreement as an independent contractor, not as Your employee, partner, or agent. Sections 3(b), 4, 5, 8, 9, 10, 11, 12, 14, 15.c, 17 and 18 survive the termination of this Agreement. You have accepted this agreement by the signing of an Order Form by Your duly authorized officer or officer representative.

18. Requirements

EG uses Stripe for payment processing. EG requires You to set up, verify and activate Your Stripe account. Once this is completed, You are required set up EG with an active user account in Your Stripe account, user name and email provided to You by EG, with administrator permission The EG user with administrator permission must remain an active user on client’s Stripe account for the life of use of EG by You. EG may create additional active users with administrative or lower permissions. If administrator permission is removed from this user or this user has been made inactive, payment processing on Empower Giving will be immediately stopped. Payment processing will be reinstated within 48 hours after the EG user is active and is given administrator permission. If the designated EG user has been deactivated or administrator permission is removed more than 2 times, a fee will be assessed to client in the amount of $300 to reinstate. This fee will be assessed each time administrative access is removed or set deactivated after the 2nd time. This fee must be paid in full before the payment processing is reinstated.

19. Trademark

Empower Giving logo, the name Empower Giving, Empower Giving, LLC, empowergiving.com, and empowergiving.org are trademarks. You agree not to use or display in any manner without written permission from Empower Giving.

20. Platform and Software Modification

EG reserves the right to make changes to the Platform and Software without limitation. EG will not be liable, in any respect, for such modifications or any errors or damages that might result from such modifications.

21. Definitions

• “AUP” means Empower Giving’s acceptable use policy located at https://www.EmpowerGiving.com/terms-and-conditions, as updated from time to time by Empower Giving.
• “Empower Giving”, “Our”, “EG”, and “We” mean Empower Giving, Inc. and its affiliates and subsidiaries.
• “Documentation” means applicable manuals and documentation that Empower Giving generally provides or makes available for Solutions.
• “Effective Date” means the date of Your signature on the Order Form.
• “Order Form” means the Empower Giving order form signed by You (electronically or otherwise) and accepted by Empower Giving setting forth the Solutions You have ordered.
• “Services” means services provided by Empower Giving other than Subscriptions that are pursuant to an Order Form (and SOW if applicable) and may include professional, consulting, or training services.
• “Solutions” means Subscriptions and Services collectively.
• “Subscription” means any Empower Giving subscriptions, including maintenance, support, application services and payment services provided by Empower Giving pursuant to an Order Form.
• “System Requirements” means the requirements set forth at https://www.EmpowerGiving.com/terms-and-conditions, as updated from time to time by Empower Giving.
• “Us” means Empower Giving and You collectively.
• “You” and “Your” mean the client set forth on the Order Form.

Last updated January 1, 2018