Last Modified: December 12, 2023
The Subscriber Terms of Service apply to new Order Forms (or renewals of existing Order Forms) effective on or after December 15, 2023. If you are an existing Customer and previously executed a version of GivingData's Master Services Agreement before December 31, 2023, these Subscriber Terms of Service will not apply to you.
Our Subscriber Terms of Service (“Agreement”) are between GivingData, LLC (“GivingData,” “Company,” “we,” or “us”), and the organization identified as the customer in the applicable Order Form (Customer) and, together with all applicable exhibits, attachments, addenda, and Order Forms, is the complete agreement of the parties regarding Customer’s order of the version of the Service or Professional Services (the “Agreement”), and is effective as of the date the parties enter into an Order Form incorporating these terms (the “Effective Date”).
1.1 “Add-Ons” means additional product features that are available depending on the active Subscription Tier, and which are listed as Add-Ons on our Products and Pricing sheet.
1.2 “Aggregated Statistics” means data and information related to Customer's use of the Subscription Services that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Services.
1.3 “End User” means any individual who is authorized by Customer to use the Service under Customer’s account, including employees, consultants, contractors, grantees, nonprofit partners, or agents for whom access to the Subscription Services has been purchased.
1.4 “Company IP” means the Subscription Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics and any information, data, or other content derived from Company's monitoring of Customer's access to or use of the Subscription Services, but does not include Customer Data.
1.5 “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by you or by an Authorized User using the Subscription Services.
1.6 “Documentation” means GivingData’s user guides, as updated from time to time, and provided in print or online via https://knowledgebase.givingdata.com.
1.7 “DPA” means the GivingData Data Processing Agreement at https://www.givingdata.com/privacy-processor.
1.8 “Order Form” means an ordering document or an online order, entered into between Customer and GivingData specifying the Service or Professional Services to be provided pursuant to this Agreement. Each Order Form is a stand-alone agreement, separate from any other Order Form, incorporating the terms and conditions of this Agreement by reference.
1.9 “Production Site” means the live version of the site that you and your users will interact with.
1.10 “Product Specific Terms” means the additional product-related terms that apply to your use of GivingData products, our Implementation Services and Technical Support. These terms form part of the Agreement and can be found at https://www.givingdata.com/product-specific-terms.
1.11 “Professional Services” means the professional services provided to you by us, which may include implementation services, training, consulting support, or other professional services.
1.12 “Service” means GivingData’s grants management software as a service platform to be provided pursuant to the applicable Order Form.
1.13 “Subscription” means the access to and use of the Service on a per Authorized User basis.
1.14 “Subscription Term” means the period of time during which the Customer has the right to access and use the Subscription Service specified in the applicable Order Form, including thereafter each renewal term.
1.15 “Third-Party Services” means any third-party services that are provided with or incorporated into the Subscription Services.
1.16 “You”, “Your” or “Customer” means the person or entity using the Subscription Service or receiving the Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Authorized Users included in the scope of your subscription.
2.1. Access. GivingData will make the Service available to you and your Authorized Users during the applicable Subscription Term pursuant to this Agreement. GivingData may update the content, functionality, and user interface of the Service from time to time provided such update will not materially decrease the functionality of the Service during the applicable Subscription Term. Customer agrees that its use of the Service under this Agreement is not contingent on the delivery of future features or functionality not specified in the applicable Order Form. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form or other ordering document.
2.2 Access Rights. GivingData grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with these Terms of Service) right to access and use (and to grant access and use of the Service to its Authorized Users) the Service during the applicable Subscription Term pursuant to this Agreement, solely for Customer's internal business purposes, and subject to an applicable Order Form or other ordering document.
2.3 Acceptable Use Terms. The Service may not be used for any purposes beyond the scope of the access granted in these Terms of Service. Customer will not (i) make the Service available to anyone other than Customer and its Authorized Users or use the Service for the benefit of anyone other than the Customer or its Authorized Users; (ii) rent, lease, re-sell, assign, distribute, time share or similarly exploit the Service (including allowing its employees or Authorized Users to access the Service without acquiring Authorized User Subscriptions for such employees or Authorized Users); (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Subscription Services or Documentation; or (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. GivingData may request that Customer suspend the account of any Authorized User who is using the Service in a manner that GivingData reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for GivingData. If Customer fails to promptly suspend or terminate such Authorized User’s account, GivingData reserves the right to do so.
2.4 Limits. The limits that apply to you will be specified in your Order Form, or in this Agreement, such as the number of Authorized Users and number of intake forms that apply to your subscription.
2.5.1 Suspension for Prohibited Acts
We may suspend Customer’s and any Authorized User's access to any or all of the Subscription Services without notice for:
(i) use of the Service in a way that disrupts or poses a security risk to the Company or to any other customer or vendor of the Company; or
(ii) use of the Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
Company shall use reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Subscription Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the amount has been paid, we may suspend your access to any or all of the Services thirty (30) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating to resolve the dispute.
2.7 Regional Data Hosting. GivingData will store your Customer Data, to the extent it is practical, in the same geographic region (e.g. North America or Europe) the Customer operates in. In some cases, GivingData may transfer Customer Data to countries outside of the Customer’s region. In such cases, Company or a third-party service provider will ensure that appropriate safeguards, such as data security controls are enforced in accordance with applicable data protection laws.
2.8 Aggregated Statistics. GivingData may compile Aggregated Statistics on an anonymized basis for the Company’s legitimate business purposes, including for machine learning and testing, development, controls, and operation of the Services. Customer agrees that GivingData may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information. Company will not, under any circumstances, sell Customer’s data.
2.9 Customer’s Use of Third-Party Services. GivingData may from time to time make Third-Party Services available to Customer. Any acquisition and use by Customer or its Authorized Users of such Third-Party Services is solely the responsibility of Customer and the applicable third-party. To the extent Customer authorizes the access or transmission of data through a Third Party Service, such Third Party Service terms will govern, and GivingData will not be responsible for any use, modification, or deletion of such Customer Data or any act or omission on the part of such third party provider or its service.
3.1 Subscription Fees. In consideration for the right to use the Services under the terms herein, you will pay subscription fees in the amount and subject to the payment terms set forth in your Order Form. Unless otherwise agreed in writing by the parties, the price on the Order Form will apply to any additional subscriptions you purchase during the Subscription Term. The subscription fee described in the applicable Order Form for Subscription Services will remain fixed during the initial term of your subscription unless (i) you exceed applicable limits to users or intake forms; or (ii) you add products or upgrade Subscription Tiers.
Customer will pay Company the fees ("Fees") due under the applicable Order Form within thirty (30) days of invoice date. Amounts due are payable in the currency set forth in the applicable invoice and are non-cancelable and non-refundable unless otherwise provided in this Agreement. If Customer fails to make any payment when due, GivingData reserves the right to (i) charge interest on the past due amount at the rate of 1.5% per month or the maximum permitted under applicable law plus collection costs; (ii) suspend Customer’s access to any portion or all of the Subscription Services in the event the account becomes overdue and is not brought current within thirty (30) days following notice.
3.2 Fee Adjustments at Renewal. GivingData reserves the right to modify Subscription fees for the Services, effective upon the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least ninety (90) days before the end of the then-current subscription term. If you do not agree to this change, either Party may terminate your Subscription at the end of your then-current term by giving notice in accordance with these Terms of Service.
3.3 Payment. We will invoice you at the start of your subscription term, each subsequent billing period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice unless otherwise specified in the Order Form.
3.4 Taxes. All Fees and other amounts payable by Customer under these Terms of Service and the applicable Order Form are exclusive of taxes. If applicable, you agree to be responsible for all taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, and any other similar taxes or duties imposed by any relevant taxing authority.
4.1 Term. The initial term of the Subscription Services commences on the Effective Date outlined in the applicable Order Form and signed by Customer and Company. The term will remain in effect until all Subscriptions to the Service granted in accordance with this Agreement have expired or been terminated.
4.2 Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, GivingData will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. In order to terminate the Subscription Services early, you must provide written notice to the Company.
4.3 Termination for Cause. Either Party may terminate this Agreement for cause , as to any or all Subscription Services, (i) upon written notice to the other party of a material breach if such breach is incapable of cure, or if capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) immediately upon written notice to the other Party, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of its creditors.
4.4 Effect of Termination. Upon expiration or earlier termination of the Agreement, you will immediately discontinue all use of Subscription Services. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination or entitle you to any refund. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If GivingData terminates this Agreement for cause, you agree to promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
4.5 Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, GivingData may immediately deactivate Customer’s account(s) associated with the Agreement. GivingData will make Customer Data available to Customer for export as long as GivingData receives written notice within thirty (30) days after the effective date of expiration or termination from Customer regarding its intent to import such Customer Data. After such thirty (30) day period, GivingData will have no obligation to retain Customer Data and will thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control.
5.1 Definition of Confidential Information. From time to time during the course of performance under this Agreement, either party may disclose or make available to the other party information that is identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential including, but not limited to, business plans, product plans and roadmaps, financial information and fee structures, third-party confidential information, and technical documentation (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.
5.2 Protection of Confidential Information. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, consultants, or advisors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under these Terms of Service, including to make required court filings. If the parties entered into a non-disclosure agreement prior to executing this Agreement, the terms of this Section 5 (Confidentiality) will control in the event of any conflict or inconsistency.
6.1 Company IP. Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Products, the applicable third-party Company’s own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
6.2 Customer Data. Company acknowledges that Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. GivingData and its authorized third-party service providers are granted a limited, non-exclusive license to use, host, backup, transmit, and display Customer Data solely to the extent necessary to (i) provide the Subscription Services and Professional Services under this Agreement, and (ii) improve the Company’s services, provided that such improvement does not result in the disclosure of Customer Data to third parties in a manner that identifies Customer or its Authorized Users, directly or indirectly. All such use of Customer Data will be in accordance with the confidentiality obligations set forth in Section 5 (Confidentiality) of this Agreement and any applicable data protection laws and regulations.
6.3 Feedback. If Customer submits any feedback to GivingData regarding the Subscription Service or Professional Services, GivingData may use such feedback for any purpose without any compensation or obligation to Customer provided such use does not violate Section 5 (Confidentiality).
7.1 GivingData's Indemnification Obligations.
GivingData will indemnify, defend, and hold the Customer harmless against any claim asserted by a third-party alleging that the Service, as provided under this Agreement, infringes or misappropriates that third party’s U.S. intellectual property rights. This includes covering all losses, damages, liabilities, and costs, including reasonable attorneys' fees, incurred by the Customer as a result of such claims.
7.2 Customer's Indemnification Obligations.
The Customer will indemnify, defend, and hold GivingData harmless against any claim brought by a third party not affiliated with GivingData. This applies when the claim arises from the Customer’s or any Authorized User's negligence or willful misconduct, use of the Services in an unauthorized manner, use of the Services with non-provided or non-authorized data, software, hardware, equipment, or technology, or modifications to the Services not made by GivingData.
7.3 Mutual Indemnification. This Section outlines the mutual indemnification obligations of GivingData and the Customer, representing their entire obligation and sole remedies concerning third-party intellectual property claims.
7.4 Procedures for Indemnification Claims. To obtain indemnification under this Agreement, the party seeking indemnification must:
8.1 Performance Warranty. GivingData warrants that during an applicable subscription term (i) this Agreement, the Order Form(s) and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, (ii) the Services will perform in accordance with the applicable Documentation, in all material respects, and (iii) GivingData does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in these Terms of Service.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. “Non-conformance” shall mean any material deviation of functionalities described in the Documentation provided by GivingData and in our Product-Specific Terms. Non-conformance shall not include issues arising from Customer's failure to implement GivingData and/or relevant third-party software updates, such as web browser updates, where such updates address known issues.
If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), your exclusive remedies are those described in the termination and refund of payment provisions in Section 4 above.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
The remedies set forth in these Terms of Service are Customer's sole and exclusive remedies and Company's sole liability under the limited warranty set forth in this Section.
8.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED ABOVE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GIVINGDATA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.4., COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO (I) THE SERVICES MEETING YOUR REQUIREMENTS, OPERATING WITHOUT INTERRUPTION, OR ERROR OR VIRUS FREE; (II) WHETHER YOUR USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
8.3 Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, REPUTATION, OR ANTICIPATED SAVINGS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
8.4 Limitation of Liability. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S OBLIGATION UNDER THE SECTION 7 (INDEMNIFICATION) EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY GIVINGDATA FROM YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “SUBSCRIPTION FEES” SECTION ABOVE.
9.2 Relationship of the Parties. GivingData is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary. No right or cause of action for any third party is created by the Agreement or any transaction under it.
9.3 Marketing. You grant GivingData permission to use your organization name and logo as a reference for marketing or promotional purposes on GivingData’s website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to your standard trademark usage guidelines provided to GivingData from time to time. GivingData does not want to list customers who do not wish to be listed, so you may request we not use you as a reference by sending us an email at email@example.com.
9.4 Nonhire. During the Term of the Subscription Services, neither party shall, without the other party’s prior written consent, hire or engage as an independent contractor, any employee of the other party when such employee remains employed by the other party contemporaneous with its service to the hiring party.
9.5 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered in writing and sent to the organization's mailing or email address specified in this Section or the Order Form, unless a party designates in writing a different address. Except as otherwise provided in these Terms of Service, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
9.6 Force Majeure. Neither party is responsible for failure to fulfill its non-monetary obligations due to circumstances beyond its reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, pandemics, explosion, war, terrorism, invasion, riot, or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
9.7 Governing Law; Submission to Jurisdiction. These Terms of Service are governed by and construed in accordance with the internal laws of the State of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Massachusetts. Any legal suit, action, or proceeding arising out of or related to these Terms of Service or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Massachusetts in each case located in the city of Boston and County of Suffolk, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
9.8 Assignment. Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. Any purported assignment or delegation in violation of this Section will be null and void. However, either party may assign the Agreement to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
9.9 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Subscription Services or any Customer Data outside the US.
9.10 US Government Rights. Each of the Documentation and the software components that constitute the Subscription Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor thereof, Customer only receives those rights with respect to the Subscription Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
9.11 Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees’, ‘Early Cancellation’, ‘Termination for Cause’, ‘Effect of Termination’, ‘Confidentiality’, ‘Intellectual Property’, ‘Customer Data’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’, and ‘Governing Law; Submission to Jurisdiction’.