4giving Services Agreement - Updated February 2, 2021
This 4giving Services Agreement ("Agreement"), is made and entered into as of the date accepted by you and is by and among 4giving, Inc., a Delaware corporation ("4giving"), the 4giving Foundation (the “4G Foundation”), the charitable entity purchasing or using the various 4giving or 4G Foundation services or a donor, company or organization using 4giving or the 4G Foundation to make donations (the user of the services shall be referred to as "You").
BY ORDERING ANY OF THE 4GIVING SERVICES OR BY USING THOSE SERVICES YOU ARE AGREEING TO THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT, AND THAT THIS AGREEMENT IS LEGALLY BINDING ON YOU. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
THE SERVICES. 4giving provides services to charitable organizations and those companies or individuals that want to support charitable organizations. The 4giving services may use a QR code or a digital link to help not-for-profit organizations promote their fundraising activities (e.g. donations at events and auctions); these services, and the other Services further described in this Agreement, shall be referred to as the Services; the 4giving websites or mobile applications used to access or manage the Services shall be referred to as the "Applications". The Applications are part of the Services. The Services may also provide donors with the ability to make donations to charities sponsored by 4Giving or to charities not sponsored by 4Giving, to the extent that they except unsolicited donations.
COST OR CHARGE FOR SERVICES. Some of the Services may be provided by 4giving without services fees payable to 4giving. Some of the Services shall be subject to services fees paid to 4giving and payment processing fees e.g. banks, credit/debit card companies and payment processor such as PayPal and Stripe (collectively the “Fees”). To the extent that the Services are subject to Fees, such Fees (and applicable sales and/or use taxes) shall be described in the 4giving order form (which shall include any “check the box” Services choices you select), statement of work or invoice provided to you or will be set forth in this Agreement. A donation made to you through the Services shall be processed through the Stripe payment processing account established for you. Each such donation, minus the Fees, shall be credited and made available to you. To the extent that the Services are provided by 4giving to you without services fees payable to 4giving, 4giving may ask each such donor to make a free will payment to 4giving for providing the Services. All donations made through the Services are subject to payment processing fees. The payment terms for the Fees, and applicable sales or use taxes, shall be set forth in the applicable 4giving order form, statement of work or invoice.
Term OF CHARITY FUNDRAISER AND TERMINATION. The term of your fundraiser or campaign is set forth on the 4giving order form or statement of work provided to you. 4giving shall have the right in 4giving’s sole discretion to immediately terminate this Agreement at any time, upon written notice to You.
QR CODE LICENSE TO CHARITIES. To the extent that you have agreed with 4giving to access and use such Services, 4giving hereby grants to You a nonexclusive, revocable, royalty-free limited license to use a 4giving donation QR code ("Services QR") and to place a link to that Services QR on your website, mobile application or other marketing materials solely as necessary for, and for the purpose of, facilitating donations to your 501(c)(3) charitable organization. You agree not to use the QR Code in conjunction with content that is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable, or that would constitute or encourage a criminal offense, violate the rights of any party, or otherwise give rise to liability or violate any law, as determined by 4giving in its sole discretion. You understand that 4giving has not authorized, sponsored, endorsed, or approved your website, your mobile application, your marketing materials, your organization, or your organization’s activities and agree that the Services QR shall not be used in any manner that would falsely convey such sponsorship, endorsement, or approval by 4giving. 4giving reserves all proprietary rights in and to the Services QR and all other 4giving trademarks not expressly granted herein. You agree that 4giving can revoke this license at any time for any or no reason upon notice by 4giving to You and You agree upon receipt of such notice immediately to cease using the Services. You also agree that this license shall be automatically terminated without any action on 4giving’s part should You no longer possess tax-exempt status under IRC Section 501(c)(3).
DONATIONS TO CHARITIES THROUGH SERVICES. During the term of this Agreement, 4giving agrees to (i) direct all donations made through the Services to your Stripe credit/debit card processing account (the "Stripe Account"), net of the Fees; (ii) provide an email receipt to each donor, and (iii) provide You the ability to view donation information through the Applications. All donations made through the Services are solicited and received by You in your name and shall be directed to your Stripe Account. You are responsible for complying with all federal and applicable state and local laws relating to such fund-raising activities, including providing appropriate gift receipts as required under the Internal Revenue Code ("IRC") and state and local fund-raising and solicitation requirements. 4giving may update or otherwise modify the Services at any time for any reason in 4giving’s sole discretion. 4giving may shut down the Services for maintenance and development work when necessary.
The 4giving Boost Service.
Businesses. 4giving Boost raises awareness among a businesses’ employees and customers of the company’s philanthropic goals. Through Boost, the company provides direct financial or influential support to their chosen charities in one or more ways, including: 1. matching funds, 2. influencer marketing (using the business’s online and offline assets to help advertise a charity) and 3. cause marketing (donating a percentage of profits or sales over a specified time (e.g. a day) to a chosen charity). Boost also aids the business in finding charities in need of support; vetting charitable organizations; and providing an administrative interface to keep track of the company’s use of Boost.
Charities. 4giving Boost helps charities find businesses, that align with the charity’s mission, who may offer: 1. financial or influential support (i.e. online and offline marketing help to encourage donations and enhance a donor’s experience); 2. Promotion of a “one day of giving” per month to entice donors to donate and match a business’s “matching gift” or a business’s percent of profits. 4giving Boost also supplies charities with an admin interface to keep track of the amount raised, donor information and marketing materials.
4giving Boost Programs Particulars.
Matching funds: A business agrees to provide 4giving with at least 12 months of donations, with a minimum donation of $1,000/month, earmarked for a charity they choose or one chosen with guidance from 4giving. The donations will be donated to the 4giving Foundation at the start of the 4giving Boost services term. 4giving Foundation will disperse the monthly matching grants by the 15th of the following month.
Influencer marketing: 4giving shall use the business’s online and offline assets to help advertise the charity selected by the company. Business will help advertise/market a charity’s cause via means determined by 4giving, the business and the charity. This may include, but not be limited to, printed signage in a business, links to the charity’s 4giving fundraising page on the businesses site, mentions of the charity in business correspondence (social media posts, internal/external emails, etc.) and a business-branded 4giving page displaying all 4giving-affiliated charities the respective business supports. In conjunction with the above, 4giving will provide related online and offline marketing materials to the business and charity.
Cause marketing: In addition to the above described monthly minimum donation, the company may donate a percentage of profits or sales over a specified time (e.g. day, week, month). 4giving, the business and the charity will agree on a date or dates a business, a business’s branch or franchisee will donate a percentage of their day’s sales or similar financial-based transactions.
Boost Costs and Expenses. 4giving will offer the Boost Service for the fee set forth on the 4Giving order form, statement of work or invoice provided to the charity that has agreed to purchase the Boost related Service (the “Boost Fees”). The . The Boost Fees will cover: text copy to be used on a charity’s social media accounts (e.g. Facebook, Twitter, LinkedIn, Instagram); text copy, graphics and design for printed material to be used during the campaign for both the charity and for display by the “partner” business; and text copy for internal or external emails to be sent by a charity and business to their supporters, employees, clients, friend and family. Emails shall include: 1. an introduction email to be sent on or before the campaign start, 2. An email used for the “one day of giving” for the month (whether for a matching grant or cause marketing day); and 3. An end of month follow-up email to donors so they can learn about the difference their donation made to the charity and business. The Boost Services shall also include an “infographic” used on a charity’s 4giving fundraising page, emails and social media accounts that explains what each donation will be earmarked for or help. Printing costs are not included in the 4giving Boost fee.
USE OF THE SERVICES TO MAKE DONATIONS. The Services may also provide individual donors with the ability to make donations to charities sponsored by 4giving or to charities not sponsored by 4giving, to the extent that they except unsolicited donations. Individual visitors to the 4giving website, charities that use the Services or companies that promote charities may make donations to charities through the 4G Foundation, a Minnesota 501(c)(3) charitable organization. A visitor to the 4giving website or the charity website may select or suggest the charity they wish to donate. The 4G Foundation shall make the donation to the charity so suggested; minus the Fees (notwithstanding such Fees, the donor will receive a donation receipt equal to the full amount so donated to the Foundation)]. In a few instances the 4G Foundation may not be able to make the donation to the charity suggested by the donor. If that is the case, the 4G Foundation will donate to a similar charity; this charity will not receive the donor’s personal information. Donors agree that 4G and the 4G Foundation may use or their credit card, debit card or other payment services information (e.g. card/account number, expiration date and/or security code) solely for the purposes of the processing of or making a donation as set forth in this paragraph.
Ownership of Services. 4giving shall be the sole and exclusive owner of the Services (including the Services QR), all materials with respect to the Services supplied to You and your Access Holders (as defined below), all new versions, improvements, enhancements, additions, and modifications to the Services or such materials, all copyright, patent, trade secret, and other intellectual property rights related to the Services and such materials. You and your Access Holders shall have no claim or right whatsoever with respect to the Services except for the limited license to use the Services granted herein. You and your Access Holders may not use, copy, modify, transfer, or make any derivative works of all or any part of the Services, any materials with respect to the Services, or any copy, adaptation, transcription, or merged portion thereof, except as expressly permitted hereunder. If You or any Access Holder undertakes any such prohibited action, your license shall be automatically terminated.
REPRESENTATIONS OF CHARITIES. You represent and warrant to 4giving that: (a) You are recognized by the Internal Revenue Service as exempt from federal income tax under IRC Section 501(c)(3), and have public charity status under Section 509(a)(1) or (2), are not classified by the Internal Revenue Service as a Type III supporting organization under IRC Section 509(a)(3), and will utilize all donations received through use of the 4giving Services in accordance with such tax-exempt status, and your website will not violate any restrictions imposed by applicable law on IRC Section 501(c)(3) entities; (b) You understand You may have obligations to register under, and covenant that You shall fully comply and bear the costs associated with, any and all applicable state and local statutes governing the solicitation of charitable solicitations, including but not limited to fulfilling any registration requirements thereof; (c) You shall promptly notify 4giving of any change in your tax-exempt status, and any inquiry by the IRS or any state or local government regarding the matters described in (a) and (b) above; and (d) You grant 4giving the authority to use of your organization’s name, trademarks, logo and designations in conjunction with the Services.
DATA SUBMITTED BY CHARITABLE ORGANIZATIONS. You shall be solely responsible for the quality and accuracy of all data that You or your Access Holders (as defined below) enter into the Services. Except as otherwise provided in this Agreement, such data shall be your sole property. 4giving shall keep all data pertaining to You and your Access Holders stored in the Services confidential and shall not disclose such data to anyone except employees, agents, and contractors of 4giving who need to know the same in order to facilitate the performance of their duties. 4giving will exercise reasonable care in the protection of your data and will maintain reasonable data integrity safeguards against the deletion or alteration of your data. If any data is lost or destroyed because of any act or omission of 4giving or any noncompliance with 4giving’s obligations under this Agreement, then 4giving will, at its own expense, use commercially reasonable efforts to reconstruct such data as soon as possible. 4giving will store and safeguard storage media containing your data when in the custody of 4giving. You acknowledge and accept that the Services will be unavailable when 4giving is backing up data or undergoing regular system maintenance.
CREDIT CARDS ISSUES. In the event 4giving receives notification of a charge back or a disputed charge from a credit card company as a result of a donation made to You through the Services or by you if You are a donor using the Services: (i) 4giving will contact the donor via email and copy You on this email, 4giving will inform the donor how they can continue with their donation, and inform the donor that canceling their donation will require You to refund their contribution; and (ii) If the donor does not respond affirmatively to continue with their donation or clear the charge back with their bank within thirty (30) calendar days, then if You are a charity user of the Services, You will be required to return the charge back donation amount to Stripe per the terms of your Stripe Account.
Access/SUPPORT OF Services provided to charities. Subject to the terms and conditions of this Agreement, 4giving will make the Services available to You and your employees that You identify to 4giving as authorized to access and use the Services ("Access Holders"). You accept sole responsibility for the use of the Services by You, your Access Holders, and any other user who gains access to the Services or through You or any of your Access Holders. 4giving currently makes customer support and services available to You and Access Holders, at no cost to You, via telephone and email on weekdays between 9:00AM and 5:00PM Central time, excluding holidays that are recognized by 4giving, however, the provision of such support services is subject to change, in 4giving’s sole discretion. 4giving reserves the right to review all use of the Services and may approve or reject such use at its sole discretion.
CHARITY SERVICES Responsibilities. You and any Access Holders will be responsible for maintaining the confidentiality of any credentials You provide to access the Services and shall not share such credentials with anyone else. You and Access Holders agree not to use the credentials of another nonprofit at any time or to disclose your credentials to anyone else. You agree to exit (or log-off) from your account at the end of each session and to immediately notify 4giving of any unauthorized use of your credentials. You are solely responsible for any and all use of your account and for any actions that take place from the use of your account, including any damages or claims resulting from unauthorized access to your account.
Warranties and limitation of liability. 4GIVING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY AS TO NON- INFRINGEMENT OR THE PERFORMANCE RESULTS OF THE SERVICES. 4GIVING MAKES NO WARRANTIES REGARDING THE EFFECTIVENESS OF THE SERVICES IN FUNDRAISING ACTIVITIES AND MAKES NO REPRESENTATION THAT YOU WILL RECEIVE ANY DONATIONS AS A RESULT OF YOUR USE OF THE SERVICES. You are responsible for determining whether the Services will achieve your desired results. 4giving does not warrant that the Services will be accessible at all times and You understand that the Services may be unavailable during maintenance or at such other times as 4giving deems necessary. 4giving shall bear no responsibility for the success of any of your charitable donation campaigns and projects. 4giving’s liability to You under this Agreement shall be limited to the aggregate of all FEES PAID BY DONORS TO YOU THROUGH YOUR STRIPE ACCOUNT within three (3) months of the date of the applicable claim or if you are a donor using the Services, the amount of the donation in question. You may not bring any action, regardless of form, in connection with this Agreement more than one year after accrual of such action.
INDEMNIFICATION. You agree to defend, indemnify, and hold harmless 4giving and its parent, subsidiaries, and affiliates, and their respective officers, directors, agents, distributors, franchisees, and employees against any loss, damage, expense, or cost, including reasonable attorneys’ fees arising out of any claim, demand, action, suit, investigation, arbitration, or other proceeding by a third party based on (i) your material breach or the inaccuracy of any covenant, duty, representation, or warranty set forth in this Agreement, (ii) materials contained on your website, mobile application or marketing materials (including any allegation that such materials infringe a third party’s proprietary, privacy or publicity rights), or (iii) your access to and use of the Services, including, but not limited to, any dispute You might have with a donor.
GENERAL TERMS. This Agreement constitutes the entire agreement between the parties pertaining to the matters set forth herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. 4giving reserves the right to supplement, modify, or amend the Agreement at any time, without notice to You, by posting updated versions of this Agreement to their website. your continued use of any Services after 4giving’s modification of this Agreement constitutes your acceptance of the terms and conditions of this Agreement as modified. You shall be solely responsible for checking 4giving the website (www.4giving.com) from time to time to ensure You are aware of any updates or changes to this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. This Agreement shall be executed electronically. The parties acknowledge that 4giving will perform its obligations hereunder as an independent contractor. You may not assign this Agreement without the prior written consent of 4giving, which shall not be unreasonably withheld. All notices and communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, or five (5) business days after being deposited in the United States mail, certified mail, return receipt requested. This Agreement will be governed by the laws of the State of Minnesota, without regard to that state’s conflict of laws’ provisions. The United Nation Convention on Contracts for the International Sales of Goods shall not apply to this Agreement. ALL PARTIES HEREBY AGREE THAT THE COURTS IN HENNEPIN COUNTY, MINNESOTA SHALL HAVE THE SOLE AND EXCLUSIVE JURISDICTION OVER ANY MATTER OR DISPUTE ARISING OUT OF THIS AGREEMENT. If any provision of this Agreement is held invalid, void or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.