ShoppingGives General Retailer Terms

The Agreement governs your access to and/or use of the ShoppingGives software-as-a-service technology platform, to support the giving economy and enable participating retailers the opportunity to pledge donations and allow consumers to pledge donations when making a Purchase on the Retailer’s Website to certain nonprofits (i.e.: 501(c)(3)), designated by the participating retailer nonprofit (the “Platform”) and governs your use of the Platform Widgets. “Platform Widgets” means the widgets and scripts provided by ShoppingGives to Retailer that are used in conjunction with the Platform which may include without limitation cart widgets, product page widgets, Donation widgets and checkout scripts. If you do not agree with this Agreement, you shall not use the Platform and/or Platform Widgets.

These ShoppingGives General Retailer Terms (“General Retailer Terms”) are made and entered into between Niche Interactive Media Inc. d/b/a ShoppingGives (collectively, “ShoppingGives”, “Company”, “we”, “our”, and “us”) and you and your subsidiaries and affiliates (collectively, “Retailer”, “you” and “your”).  These General Retailer Terms, together with either (i) the Impact Starter Retailer Terms of Service identified below, for retailers that enroll in ShoppingGives’ Impact Starter program (“Impact Starter Terms”), or (ii) the Impact Plus Retailer Terms of Service identified below, for retailers that enroll in ShoppingGives’ Impact Plus program (“Impact Plus Terms”), constitute the agreement between Company and Retailer (the General Retailer Terms, together with either the Impact Starter Terms or the Impact Plus Terms which shall be incorporated herein as applicable, shall hereinafter be referred to as the “Agreement”).  Capitalized terms used but not otherwise defined in these General Retailer Terms shall have the meanings ascribed to them in the Impact Starter Terms or the Impact Plus Terms, as applicable.

BY CHECKING THE BOX TO INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND CLICKING ON THE ‘ACCEPT’ BUTTON ON THE SCREEN TO ACCESS AND/OR USE THE PLATFORM AND/OR PLATFORM WIDGETS OR BY DOWNLOADING, ACCESSING AND/OR USING THE PLATFORM WIDGETS VIA AN APPLICATION PROVIDED ON A THIRD PARTY WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS THAT ARE AND/OR MAY BE ESTABLISHED BY COMPANY FROM TIME TO TIME, AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE.  IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING AND/OR RECEIVING SERVICES ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY OR AGENCY TO THIS AGREEMENT. IN SUCH EVENT, “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO EACH ENTITY OR AGENCY. THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL GOVERN YOUR ACCESS TO AND/OR USE OF THE PLATFORM AND/OR PLATFORM WIDGETS. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT ACCEPT THIS AGREEMENT, NOW OR IN THE FUTURE, PLEASE STOP YOUR USE OF THE PLATFORM AND/OR PLATFORM WIDGETS IMMEDIATELY, IN WHICH CASE ANY CONTINUING ACCESS AND/OR USE OF THE PLATFORM AND/OR PLATFORM WIDGETS IS UNAUTHORIZED.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SHOPPINGGIVES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.  THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.

1. Terms and Privacy Notice. Retailer acknowledges and agrees it will abide by Company’s terms of use located at https://shoppinggives.com/terms-of-use/ (“General Terms”), as may be amended from time to time by Company in its sole and absolute discretion, the current versions of which are incorporated herein by reference.  In the event of a conflict between the General Terms and this Agreement, the order of preference shall be this Agreement, then the General Terms. Company’s privacy notice is located at https://shoppinggives.com/privacy-policy/ (“Privacy Notice”), as may be amended from time to time by Company in its sole and absolute discretion.

2. Platform, Platform Widgets and Donations.

2.1 Use of the Platform.  Retailer desires to utilize the Platform and Platform Widgets for the website indicated by Retailer (the “Retailer’s Website”) to allow Retailer and consumers to pledge Donations when making a Purchase on the Retailer’s Website to certain nonprofits (i.e.: 501(c)(3)), designated by the Retailer).  “Purchase” means each pre-tax, post-discount amount paid by a consumer on the Retailer’s Website (excluding applicable shipping and handling fees).  Retailers may elect to donate in various ways which may include donating a percentage of the consumer’s Purchase, a percentage of a Purchase of a specific product, a fixed amount per total Purchase, a fixed amount per product Purchased, allowing consumers to round up the price of a Purchase or allowing consumers to match or add to the amount the Retailer elects (each, a “Donation”).

2.2 Updates. During the Term, Company may, in its sole discretion, make available to Retailer such updates, patches and bug fixes for the Platform and Platform Widgets as may, from time to time, be made generally available by Company to its customers.  Company will not provide notice to Retailer for updates relating solely to the back-end of the Platform or the Platform Widgets. Company reserves the right to (i) correct any errors, inaccuracies, and/or omissions with respect to any information on the Platform, and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law.  The Platform may be modified, updated, suspended and/or discontinued by Company at any time, without liability.

3. Capabilities and Equipment. Retailer is solely responsible for (i) obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including responsibility for providing appropriate personal computers and mobile devices) to access and/or use the Platform, and (ii) ensuring that its network and systems comply with the relevant specifications provided by Company from time to time.

4. Promotional Offers. From time to time ShoppingGives may offer promotions waiving transaction fees as further identified and displayed on the Platform. During the promotional time period any fees accrued will be charged as normal and a credit will be issued back to the Retailer’s account to be applied on future invoices as determined by Company in its sole and absolute discretion. Credits will not be refunded for cash and can only be applied to future invoices. Promotions may only apply to new partners. See specific promotion details for more information or email hello@shoppinggives.com for more information.

5. Ownership. Company retains all right, title, interest and ownership of, any and all IP and proprietary rights with respect to the Platform, Platform Widgets, Data, customizations and any other materials provided or made available to Retailer by Company. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Retailer in this Agreement, the Platform, Platform Widgets, Data and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Company and its respective licensors, and Retailer hereby assigns all such ownership rights to Company as necessary. Except for the rights expressly granted to Retailer in this Agreement, all data or information provided by, accessed from or through the Platform and Platform Widgets and all data resulting from Company’s processing and/or aggregation of such data (collectively the “Data”) is, or will be, and will remain, the sole and exclusive property of Company and will be deemed Confidential Information of Company. Subject to Retailer’s payment of all fees and compliance with this Agreement, Company shall grant Retailer a worldwide, non-exclusive right, non-transferable license to utilize the Data for its internal business purposes only. No right is granted to Retailer (or others acting for Retailer) to sell or otherwise transfer the Data to third parties without Company’s prior written consent. Company will utilize data from the Platform and Platform Widgets to re-target and re-engage Retailer customers who activate an account, sign-up, or sign-in to ShoppingGives, following a Purchase from Retailer’s Website.

6. Retailer Content. Retailer hereby grants Company, ShoppingGives Foundation, its affiliates and any participating nonprofits a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy, display and use Retailer’s trademarks, service marks, logos, materials and any other content (“Retailer Content”) provided by Retailer so that such Retailer Content can be used by such parties in accordance with this Agreement and any related agreements, policies, guidelines and other operational documentation. Retailer represents and warrants that it owns all Retailer Content, or that Retailer has permission from the rightful owner to use each of the elements of Retailer Content and to grant the rights described herein. Retailer will defend, indemnify, and hold harmless Company, ShoppingGives Foundation, their affiliates, and any nonprofits, from and against any and all costs, losses, fines, or expenses, including reasonable attorneys’ fees, that such party may incur by reason of any third-party claims arising out of and/or in connection with this Section.

7. Confidentiality.

7.1 Confidential Information. During the Term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement (“Confidential Information”).  The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”

7.2 Obligations. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement and as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Platform and Platform Widgets in accordance with this.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement.  The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 7 of the General Retailer Terms) to keep such Confidential Information confidential.  The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.  

7.3 Exclusions.  Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

7.4 Legal Requirements.  If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.  If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

7.5 Confidentiality Breach.  The parties agree that ownership of any IP in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.

7.6 Disposition of Confidential Information on Termination.  Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control.  Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.  The obligations with respect to Confidential Information, as set forth in this Article 7 of the General Retailer Terms, shall continue in force and effect for a period of five (5) years after termination of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.

7.7 Remedy.  Each party acknowledges that a breach of this Article 7 of the General Retailer Terms may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 7 of the General Retailer Terms shall survive the termination of this Agreement.

8. Advertising and Marketing.  Notwithstanding anything herein to the contrary, Company may use Retailer’s name and logo to identify Retailer as a participating Platform retailer on Company’s website and in other advertising, marketing, and promotional materials, and Retailer may further develop and publish case studies highlighting the Platform, performance and related services provided to Retailer in Company’s promotional materials, including but not limited to, its client lists, brochures, white papers and/or electronic media.

9. Representations and Warranties.  

9.1 Representations and Warranties. Company and Retailer each represent and warrant that (a) they will comply with all applicable laws, statutes, ordinances, rules, regulations, and requirements of all governmental agencies and regulatory bodies in connection with this Agreement, and (b) each party has the requisite legal and corporate power and authority to enter into this Agreement and grant the rights as set forth in this Agreement. Company also represents and warrants that it will comply with laws and regulations governing commercial co-ventures, including any requirements to register as a commercial co-venture in applicable jurisdictions.

9.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.  THE PLATFORM AND ALL PRODUCTS, SERVICES, AND DATA ARE PROVIDED BY COMPANY “AS IS.”  COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PLATFORM, PLATFORM WIDGETS, PRODUCTS, SERVICES OR DATA PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED.  RETAILER AGREES THAT ITS USE OF THE PLATFORM IS SOLELY AT ITS OWN RISK, AND THAT COMPANY MAKES NO WARRANTIES OR PROMISES OF ANY KIND RELATED TO RETAILER’S USE OF THE PLATFORM. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (I) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET, (II) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF, RETAILER CONTENT OR OTHER INFORMATION THAT RETAILER OR ITS USERS SUBMITS OR USES IN CONNECTION WITH THE PLATFORM, AND/OR (III) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.

10. Indemnification. Retailer will defend, indemnify, and hold harmless ShoppingGives, ShoppingGives Foundation and non-profits from and against any and all costs, losses, fines, or expenses, including reasonable attorneys’ fees, that ShoppingGives may incur by reason of any third-party claims arising out of or in connection with (i) Retailer’s and/or its users negligence, misconduct, acts and/or omissions; (ii) Retailer’s and/or its users breach or alleged breach of any terms and/or conditions of this Agreement; and/or (iii) Retailer’s and/or its users use of, or activities in connection with, PPGF.

11. Limitation of Liability. SHOPPINGGIVES, ITS AFFILIATES AND ITS SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS, RETAILERS, AND VENDORS SHALL NOT BE LIABLE TO RETAILER, ITS USERS OR ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, ANY DONATIONS THROUGH THE PLATFORM, RETAILER AND ITS USERS ACCESS TO OR INABILITY TO ACCESS THE PLATFORM AND/OR PLATFORM WIDGETS, INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL AND/OR EQUITABLE THEORY, EVEN IF SHOPPINGGIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY SHOPPINGGIVES, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS.

SHOPPINGGIVES’ MAXIMUM AGGREGATE LIABILITY TO RETAILER AND ITS USERS FOR DIRECT DAMAGES THAT RETAILER AND ITS USERS SUFFER IN CONNECTION WITH THE PLATFORM AND/OR PLATFORM WIDGETS IS LIMITED TO THE LESSER OF (i) THE AMOUNT PAID, IF ANY, BY RETAILER AND ITS USERS TO SHOPPINGGIVES IN CONNECTION WITH THE PLATFORM AND/OR PLATFORM WIDGETS IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR (ii) FIFTY DOLLARS (US$50.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS OR LIMITATIONS HEREIN MAY NOT APPLY TO USER IN SUCH LIMITED CIRCUMSTANCE. IN SUCH STATES, SHOPPINGGIVES’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  RETAILER AND ITS USERS ACCESS TO AND/OR USE OF THE PLATFORM AND/OR PLATFORM WIDGETS IS AT RETAILER AND ITS USERS OWN RISK.).

12. Dispute Resolution. EXCEPT FOR DISPUTES AND/OR CLAIMS RELATED TO COMPANY’S IP AND/OR CONFIDENTIAL INFORMATION, ANY OTHER DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, WILL BE RESOLVED BY BINDING ARBITRATION IN COOK COUNTY, ILLINOIS.  THE ARBITRATION PROCEEDINGS SHALL BE CONDUCTED UNDER THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN EFFECT AT THE TIME A DEMAND FOR ARBITRATION UNDER THE RULES IS MADE.  THE DECISION OF THE ARBITRATORS, INCLUDING DETERMINATION OF THE AMOUNT OF DAMAGES SUFFERED, IF ANY, SHALL BE FINAL AND BINDING ON ALL PARTIES, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS AND JUDGMENT WITH RESPECT TO SUCH DECISION MAY BE ENTERED IN ANY COURT OF APPLICABLE JURISDICTION.

13. Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Agreement related to Company’s IP and/or Confidential Information shall take place exclusively in the courts situated in the City of Chicago, Cook County, Illinois and the parties hereby submit to the venue of the courts situated therein.

14. Notices. Except as otherwise permitted in this Agreement, all notices sent to Company shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party's address, as subsequently modified by written notice.

15. Additional Terms.  In the event that Retailer accesses the ShoppingGives Platform through the Shopify API, the following additional terms shall apply.

Retailer acknowledges and agrees that: (a) ShoppingGives is solely responsible for its Platform and/or Platform Widgets; (b) Shopify is not liable for any fault in ShoppingGives’ Platform and/or Platform Widgets or any harm that may result from its installation or use; (c) except where expressly stated by Shopify in its terms, Shopify cannot provide assistance with the installation or use of ShoppingGives’ Platform and/or Platform Widgets; and (d) ShoppingGives is solely responsible for any liability which may arise from Retailer’s access to or use of ShoppingGives’ Platform and/or Platform Widgets, including: (i) the development, use, marketing or distribution of or access to ShoppingGives’ Platform and/or Platform Widgets, including support of the Platform and/or Platform Widgets; or (ii) ShoppingGives’ access, use, distribution or storage of Retailer data.  Access to the Shopify API may be terminated or suspended by Shopify at any time and at Shopify’s sole discretion, and without any liability to ShoppingGives.

16. Consumer Terms.  The terms and conditions applicable to consumers making Purchases involving Donations on Retailer’s Website is set forth at https://shoppinggives.com/terms-of-use/consumer  (“Consumer Terms”).  Retailer agrees to present these Consumer Terms to all consumers who make Purchases involving a Donation on Retailer’s Website, and to require all such consumers to indicate their agreement to the Consumer Terms prior to making a Donation.

Impact Starter Retailer Terms of Service

In the event Retailer enrolls in ShoppingGives’ Impact Starter program, in addition to the General Retailer Terms, the following additional Impact Starter Terms apply:

1. Retailer Charges, Payment, Donation Distribution, Rights and Restrictions.

1.1 Retailer Charges and Payment Terms. Once Retailer has established its Donation program and Payment Method and clicks the ‘Start Giving’ button on the Platform, Retailer shall be charged a predetermined fee (the “Fee”) identified by ShoppingGives and based on the Purchases (including Donation, transaction and credit card fees) processed on Retailer’s Website.  ShoppingGives reserves the right, in its sole discretion, to adjust Fees at any time upon written notice to Retailer (which may be via email). ShoppingGives will charge Retailer’s Payment Method for applicable Fees due hereunder and Donations either (i) upon receipt of at least $50 in accrued Donations from Purchases processed on Retailer’s Website, or (ii) thirty (30) days after Retailer clicks the ‘Start Giving’ button, whichever occurs first.  Thereafter, ShoppingGives will charge Retailer’s Payment Method for applicable Fees due hereunder and Donations either (a) upon receipt of an additional $50 in accrued Donations, or (b) thirty (30) days from the last payment date, whichever occurs first.  ShoppingGives will reconcile all returns and/or incorrect transactions within thirty (30) days from the date of Purchase, or other timeframe mutually agreed to by ShoppingGives and the Retailer in writing, and any credits due and owing to Retailer’s account shall be reconciled on a subsequent invoice.

1.2 Payment Method. Upon creating an account, the Retailer shall be required to designate a credit card or bank account as the payment method for Fees due hereunder (“Payment Method”). As of the Effective Date of this Agreement, ShoppingGives applies an administrative charge in the event Retailer elects to use a credit card Payment Method in an amount equal to 2.9% of the Fees due plus thirty cents ($0.30). Retailer authorizes ShoppingGives and/or its third-party service provider to automatically charge the Payment Method for the Fees as set forth herein or as otherwise agreed to by the parties in writing.  Upon Company’s request, Retailer agrees to promptly complete and submit a credit card authorization and/or ACH authorization form to Company, as applicable.  ShoppingGives may use a third-party payment processor to process payments. Retailer’s credit card information or bank information will be processed and stored by such third-party payment processor. Retailer expressly understands and agrees that the processing of the Payment Method is governed by the third-party’s terms and conditions and ShoppingGives shall have no liability related thereto  If the Payment Method on file is closed or the account information is changed, or if, for any reason, a Payment Method is rejected, Retailer shall immediately update or supply a new Payment Method. If the Retailer does not notify us of updates to the Payment Method, to avoid interruption of the Platform and Platform Widgets, we may participate in programs supported by the card provider, bank or other third parties to try to update the Payment Method. Retailer authorizes ShoppingGives to continue billing the Payment Method with the updated information that ShoppingGives obtains. If Retailer is unable to update its Payment Method with appropriate information, then ShoppingGives may (in its sole and absolute discretion, and without liability) immediately suspend the access and/or use of the Platform and/or Platform Widgets, and ShoppingGives will send and/or email an invoice to Retailer detailing the amount due and such invoice shall be due and payable within five (5) days after the date of the invoice, or the account will be considered past due and ShoppingGives may suspend and/or terminate the Account, without liability, and seek all available remedies at law and in equity.  Retailer permanently and irrevocably waives any and all rights to enact a chargeback (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against ShoppingGives.  If ShoppingGives terminates an account, if a Retailer closes its account, uninstalls or deactivates the Platform and/or Platform Widgets, or if the payment of Fees cannot be completed for any reason, Retailer shall remain obligated to pay ShoppingGives for all unpaid Fees, Donations, and expenses plus any penalties, if applicable. In the event Fees are not paid on a timely basis, interest will be due and payable and calculated daily at a rate of 1.5% per month.  ShoppingGives may take all steps necessary to collect the Fees owed ShoppingGives hereunder and Retailer is responsible for all costs of collection, including without limitation reasonable attorneys' fees, for any payment default. Company may disable access to all or part of the Platform without liability if any Fees are not paid in accordance with under this Agreement.  Suspension of the Platform and related services shall not release Retailer of its payment obligations under this Agreement.  All Fees due and payable by Retailer to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.  

1.3 Distribution of Donations. Company will distribute Donation(s) in its entirety to ShoppingGives Foundation (Federal Tax ID 83-1352270), an Illinois 501(c)(3) charitable organization with which Company has a commercial co-venture relationship (“ShoppingGives Foundation”). ShoppingGives Foundation oversees the disbursement of funds to eligible nonprofits. ShoppingGives Foundation makes every effort to comply with Retailer and consumer recommendations and to grant the funds to the beneficiary designated by Retailer and/or the consumer; however, to comply with federal tax laws and Internal Revenue Service regulations, ShoppingGives Foundation is required to retain legal control over any charitable contributions it receives, and must retain the exclusive authority and discretion to grant the funds to other charitable organizations as it sees fit. Please note that ShoppingGives Foundation does not make grants to private foundations or supporting organizations. While unlikely, it is possible that a Retailer and/or consumer may designate a nonprofit that does not satisfy ShoppingGives Foundation’s criteria. The Retailer therefore acknowledges and agrees that, if ShoppingGives Foundation determines, in its sole and absolute discretion, that it would be inappropriate or improper to grant the funds designated for a particular nonprofit because, for example, the nonprofit is no longer accepting Donations, is no longer recognized as a public nonprofit, or is no longer in good standing with state or federal regulators, ShoppingGives Foundation may, in its sole and absolute discretion, ask the Retailer to recommend an alternate nonprofit to receive the Donation, or grant the Donation to another nonprofit working in the same cause area (as determined solely by ShoppingGives Foundation), with or without notice to the Retailer. It is the practice of ShoppingGives Foundation to deliver granted funds to any designated nonprofit on no less than a bi-yearly basis.  

For charities enrolled with PayPal Giving Fund, ShoppingGives and the ShoppingGives Foundation have partnered with PayPal Giving Fund (“PPGF”), a United States 501(c)(3) charity that raises new funds for charities through technology. PPGF (Federal Tax ID 45-0931286) certifies charities that participate in the ShoppingGives and/or ShoppingGives Foundation program on the Services and receives Donations from ShoppingGives and/or ShoppingGives Foundation and provides one hundred percent (100%) of those Donations to benefiting charities. Donations for charities are processed via ShoppingGives and/or ShoppingGives Foundation and sent to PPGF, which receives the Donations and provides the Donation to the recommended designated charity in accordance with PPGF policies, which terms and/or policies shall be incorporated herein by reference.

Each Donation made to PPGF shall be given to charities in the form of grants to further charitable and educational purposes. When you make a Donation to PPGF, you may recommend that PPGF make a corresponding grant to a charity in an amount equal to the amount of your Donation. PPGF will grant Donations to the chosen charity, in accordance with its Donation Delivery Policy, which is herein incorporated by reference. PPGF retains ultimate discretion and control over the use of Donations it receives from SG/SGF. If it is unable to follow the recommendation, PPGF may reassign a Donation to a similar charity, in accordance with its Donation Delivery Policy.

PPGF grants funds to charities enrolled with PPGF on a monthly basis on or around the 25th day of each month (typically 15-45 days after PPGF’s receipt of the Donation).

ShoppingGives Foundation will provide Retailer with a Donation receipt, and Retailer will disregard any additional tax receipts received related thereto.  ShoppingGives Foundation shall be under no obligation to distribute Donations to chosen beneficiaries that are not public nonprofits exempt from taxation under Section 501(c)(3) of the ‘Internal Revenue Code’. Except as otherwise provided herein, Retailer acknowledges and agrees that all Donations are final and non-refundable gifts for distribution by Company to ShoppingGives Foundation and/or PPGF (as applicable).  Refunds of Donations shall be granted only in exceptional circumstances.  To Company’s knowledge, ShoppingGives Foundation complies with all applicable laws and regulations governing 501(c)(3) organizations, including filing regular annual reports available to the public, which are intended to protect consumers, nonprofits, and Retailer by transparently showing funds received, funds expected, and funds distributed to nonprofits.  

1.4 Taxes and Third-Party Fees. Fees are exclusive of applicable taxes.  Retailer is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all Fees under this Agreement except for taxes based on Company’s net income or payroll taxes. Retailer shall also be responsible for all third-party fees (including, for example, mobile carrier fees, ‘ISP’ charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees) related to its access and/or use of the Platform and/or Platform Widgets. ShoppingGives is not responsible for such fees. Retailer will indemnify, defend and hold harmless Company for all taxes imposed which may be attributable to Retailer’s access to or use of the Platform.

1.5 Establishing an Account and Reporting. Retailer shall: (i) establish an account through the Platform, (ii) provide contact information and other forms of authentication required during the enrollment process, as determined by Company in its sole discretion, (iii) determine the administrative user authorized to control Retailer’s account access and/or controls, and (iv)  update and correct information submitted to create or maintain Retailer’s account.  Accounts are non-transferrable and may not be sold, combined or otherwise shared with any other person or entity.  Retailer is solely responsible for maintaining the security and confidentiality of the password used to access its account and acknowledges and agrees that Company shall have no responsibility for any incident arising out of, and/or related to, the account settings and/or any integration of the Platform Widgets into Retailer’s Website.  Company will assume that anyone using the Platform or transacting through Retailer’s account is authorized by Retailer.  Retailer represents and warrants that its users of the Platform will abide by the terms and conditions of this Agreement, and Retailer acknowledges and agrees that it shall be fully liable for its users’ acts and omissions, including but not limited to any user’s breach of this Agreement.  Retailer acknowledges and agrees that (i) Company is not liable for the Retailers Website, services and/or products; (ii) Company cannot provide assistance with the Retailer’s Website, services and/or products; (iii) Retailer is solely responsible for any liability which may arise from Retailers Website, services and/or products. Retailer shall defend, indemnify and hold harmless Company from and against any and all claims, losses, liabilities, expenses or damages, including attorney’s fees, arising from and/or relating to any breach of the terms and conditions set forth herein by Retailer and/or any of its users.  Retailer agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Platform Widgets, and shall notify Company immediately of any such unauthorized access or use.  Retailer represents and warrants that Retailer and its users will also abide by the terms and conditions of this Agreement and Retailer acknowledges and agrees that it shall be fully responsible for any breach of this Agreement by Retailer and/or any of its users.  Company does not collect any personal information from consumers unless the consumer creates an account, Retailer and/or its users create an account or are otherwise logged into their account.  Company will provide Retailer with standard reporting functionality in the reports section of Retailer’s dashboard on the Platform.

1.6 Right to Access and Use. Subject to Retailer’s payment of all Fees and compliance with this Agreement, Company hereby grants Retailer (i) the right to access and/or use the Platform related to Retailer’s Website solely as described herein and (ii) a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Platform Widgets related to Retailer’s Website for its internal business purposes solely as described herein.  For the duration of the Term, Retailer will (a) embed the Platform Widgets in the shopping cart on Retailer’s Website; (b) place the Platform Widgets on the order confirmation page of Retailer’s Website; (c) place the Platform Widgets on the product pages throughout Retailer’s Website; and (d) integrate use of the Platform and Platform Widgets with the Retailer’s Website in accordance with instructions provided by Retailer.

1.7 Restrictions. Except as expressly permitted hereunder, Retailer shall not, directly or indirectly, without the express, prior written consent of Company (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, assign or transfer the Platform, Platform Widgets or any portion thereof, or any of Retailer’s rights thereto, (ii) merge any Platform, Platform Widgets or any portion thereof with any other program or materials, (iii) copy, adapt, modify, make error corrections to the Platform Widgets in whole or in part, reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Platform, Platform Widgets or any other intellectual property provided or made available by Company, (iv) translate, localize, port, or otherwise modify any Platform, Platform Widgets any other intellectual property provided or made available by Company, (v) make any derivative works based on the Platform Widgets, (vi) remove, obliterate, modify, obscure or cancel from view any copyright, trademark, or other proprietary or confidentiality notice appearing on any materials provided or made available by Company, or fail to reproduce any such notice on any copy made of any such materials, (vii) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Platform, Platform Widgets, Company’s business operations or other customers, (viii) copy or imitate part or all of the design, layout or look and feel of the Platform or Platform Widgets in any form or media and/or access the Platform Widgets in order to build a similar or competitive product, or (ix) permit any other user, person and/or entity to engage in any of the foregoing conduct.  In the event of Retailer’s breach of this Section, Company may terminate Retailer’s account immediately without notice or liability.  Retailer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Platform that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (b) facilitates illegal activity, and/or (c) causes damage or injury to any person or property.  “Virus” shall mean any thing or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, service or device.  Company may, without liability to Retailer, disable or suspend the Retailer’s access to the Platform in the event (w) of any breach or anticipated breach of this Agreement, (x) Retailer’s or its users’ access to or use of the Platform disrupts or poses a security or other risk to Company, any other retailer, or any third party, (y) Retailer or its users are using the Platform for fraudulent or illegal activities, or (z) Company’s continued provision of any products or services to Retailer or its users is prohibited by applicable law.

2. Term and Termination.

2.1 Term. The term of this Agreement commences on the Effective Date and shall remain in effect until terminated by either party in accordance with the terms and conditions of this Agreement (“Term”).  

2.2 Termination. Retailer may terminate this Agreement at any time by either (i) providing written notice to ShoppingGives, or (ii) by uninstalling or deactivating the Platform and Platform Widgets. Company may terminate this Agreement at any time and for any reason without notice and without liability.  In addition, if Retailer breaches this Agreement and does not cure such breach within seven (7) days after written notice thereof, Company, in its sole and absolute discretion, may immediately suspend Retailer’s and its users’ access to and/or use of the Platform and/or Platform Widgets without liability and prejudice to other rights or remedies available at law or in equity.  If ShoppingGives terminates an account, Retailer and its users may not subscribe under a new account unless formally invited by ShoppingGives. If Retailer and/or its users commit fraud and/or falsify information in connection with its use of the Platform and/or Platform Widgets, such account will be terminated immediately and we reserve the right to hold Retailer and its users liable for any and all damages that ShoppingGives suffers, and ShoppingGives may pursue legal action through relevant local and national law enforcement authorities and may notify Retailer’s and its users ‘Internet Service Providers’ of any fraudulent activity ShoppingGives associates with the Retailer and its users access to and/or use of the Platform and/or Platform Widgets.  

2.3 Effect of Termination.  Upon termination, Retailer shall immediately cease using the Platform and Platform Widgets and delete the Platform Widgets. Upon termination, deactivation or uninstallation of the Platform and/or Platform Widgets, Retailer’s Payment Method shall immediately be charged all outstanding Fees and Donations due hereunder through the date of termination, and all Donations pending reconciliation on the date of termination will automatically be approved and charged to the Payment Method. For the avoidance of doubt, in the event the Retailer deactivates or uninstalls the Platform or Platform Widgets, then ShoppingGives will immediately charge the Payment Method for all outstanding Fees and Donations due through the date Retailer deactivates or uninstalls the Platform and/or Platform Widget.  

3. General.  It is understood and agreed that the relationship of Company to Retailer is and shall continue to be that of an independent contractor and neither Company nor any of Company’s employees shall be entitled to receive employee benefits from Retailer.  The parties to this Agreement are not joint venturers, partners, agents, or representatives of each other.  No waiver by either party of the breach of any term or condition of this Agreement will constitute a waiver of, or consent to, any subsequent breach of the same or any other term or condition of this Agreement.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.  Company may, at any time, for any reason, in its sole and absolute discretion, make changes to this Agreement, and any changes to this Agreement will become effective upon posting by Company and changing the ‘Updated’ date set forth above.  You agree that your continued use of the Platform and/or Platform Widgets following such changes will constitute acceptance of such changes.  Retailer agrees that a click-through acceptance of this Agreement is the legal equivalent of its manual signature. Retailer agrees that the fact that this Agreement was accepted through a click-through process will not in any way affect the enforceability of this Agreement.  Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.  This Agreement, General Terms, and Privacy Notice constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof.  Retailer may enter into a ‘Retailer Technology Agreement’ with Company, and in such event if there is a conflict between the terms and/or conditions set forth in this Agreement and the terms and/or conditions in the ‘Retailer Technology Agreement’, the terms and/or conditions set forth in the ‘Retailer Technology Agreement’ shall govern.

Impact Plus Retailer Terms of Service

In the event Retailer enrolls in ShoppingGives’ Impact Plus program, Retailer will enter into an order form (“Order Form”) with ShoppingGives and the terms and conditions set forth on such Order Form shall apply in addition to the General Retailer Terms and following additional Impact Plus Terms:

1. Return Lock Period, Donation Distributions, Rights and Restrictions.

1.1 Return Lock Period.  After a Donation is made, the amount of such Donation is not immediately provided to Company to account for any Purchase that may be returned or exchanged, which may impact the amount of the Donation. Therefore, after a Purchase is made on Retailer’s Website that includes a Donation, such Purchase shall be considered ‘new’ during the return lock period timeframe identified on the Order Form (the “Return Lock Period”). A ‘new’ Purchase is a transaction that has been recorded to Retailer’s sales journal but has not matured beyond the Return Lock Period. During the Return Lock Period, Retailer may accept returns or exchanges related to such Purchase and in such event the Purchase will automatically be reconciled and a Donation will not be processed related thereto.  If the consumer does not make any returns or exchanges related to the Purchase within the Return Lock Period, then upon expiration of the Return Lock Period, Company will process the Donation as described herein.

1.2 Distribution of Donations.  Company will distribute Donation(s) in its entirety to ShoppingGives Foundation (Federal Tax ID 83-1352270), an Illinois 501(c)(3) charitable organization with which Company has a commercial co-venture relationship (“ShoppingGives Foundation”). ShoppingGives Foundation oversees the disbursement of funds to eligible nonprofits. ShoppingGives Foundation makes every effort to comply with Retailer and consumer recommendations and to grant the funds to the beneficiary designated by Retailer and/or the consumer; however, to comply with federal tax laws and Internal Revenue Service regulations, ShoppingGives Foundation is required to retain legal control over any charitable contributions it receives, and must retain the exclusive authority and discretion to grant the funds to other charitable organizations as it sees fit. Please note that ShoppingGives Foundation does not make grants to private foundations or supporting organizations. While unlikely, it is possible that a Retailer and/or consumer may designate a nonprofit that does not satisfy ShoppingGives Foundation’s criteria. The Retailer therefore acknowledges and agrees that, if ShoppingGives Foundation determines, in its sole and absolute discretion, that it would be inappropriate or improper to grant the funds designated for a particular nonprofit because, for example, the nonprofit is no longer accepting Donations, is no longer recognized as a public nonprofit, or is no longer in good standing with state or federal regulators, ShoppingGives Foundation may, in its sole and absolute discretion, ask the Retailer to recommend an alternate nonprofit to receive the Donation, or grant the Donation to another nonprofit working in the same cause area (as determined solely by ShoppingGives Foundation), with or without notice to the Retailer. It is the practice of ShoppingGives Foundation to deliver granted funds to any designated nonprofit on no less than a bi-yearly basis.

For charities enrolled with PayPal Giving Fund, ShoppingGives and the ShoppingGives Foundation have partnered with PayPal Giving Fund (“PPGF”), a United States 501(c)(3) charity that raises new funds for charities through technology. PPGF (Federal Tax ID 45-0931286) certifies charities that participate in the ShoppingGives and/or ShoppingGives Foundation program on the Services and receives Donations from ShoppingGives and/or ShoppingGives Foundation and provides one hundred percent (100%) of those Donations to benefiting charities. Donations for charities are processed via ShoppingGives and/or ShoppingGives Foundation and sent to PPGF, which receives the Donations and provides the Donation to the recommended designated charity in accordance with PPGF policies, which terms and/or policies shall be incorporated herein by reference.

Each Donation made to PPGF shall be given to charities in the form of grants to further charitable and educational purposes. When you make a Donation to PPGF, you may recommend that PPGF make a corresponding grant to a charity in an amount equal to the amount of your Donation. PPGF will grant Donations to the chosen charity, in accordance with its Donation Delivery Policy, which is herein incorporated by reference. PPGF retains ultimate discretion and control over the use of Donations it receives from SG/SGF. If it is unable to follow the recommendation, PPGF may reassign a Donation to a similar charity, in accordance with its Donation Delivery Policy.

PPGF grants funds to charities enrolled with PPGF on a monthly basis on or around the 25th day of each month (typically 15-45 days after PPGF’s receipt of the Donation).

ShoppingGives Foundation will provide Retailer with a Donation receipt, and Retailer will disregard any additional tax receipts received related thereto.  ShoppingGives Foundation shall be under no obligation to distribute Donations to chosen beneficiaries that are not public nonprofits exempt from taxation under Section 501(c)(3) of the ‘Internal Revenue Code’. Except as otherwise provided herein, Retailer acknowledges and agrees that all Donations are final and non-refundable gifts for distribution by Company to ShoppingGives Foundation and/or PPGF (as applicable).  Refunds of Donations shall be granted only in exceptional circumstances.  To Company’s knowledge, ShoppingGives Foundation complies with all applicable laws and regulations governing 501(c)(3) organizations, including filing regular annual reports available to the public, which are intended to protect consumers, nonprofits, and Retailer by transparently showing funds received, funds expected, and funds distributed to nonprofits.

1.3 Establishing an Account and Reporting. Retailer shall: (i) establish an account through the Platform, (ii) provide contact information and other forms of authentication required during the enrollment process, as determined by Company in its sole discretion, (iii) determine the administrative user authorized to control Retailer’s account access and/or controls, and (iv) update and correct information submitted to create or maintain Retailer’s account.  Accounts are non-transferrable and may not be sold, combined or otherwise shared with any other person or entity.  Retailer is solely responsible for maintaining the security and confidentiality of the password used to access its account and acknowledges and agrees that Company shall have no responsibility for any incident arising out of, and/or related to, the account settings and/or any integration of the Platform Widgets into Retailer’s Website.  Company will assume that anyone using the Platform or transacting through Retailer’s account is authorized by Retailer.  Retailer represents and warrants that its users of the Platform will abide by the terms and conditions of this Agreement, and Retailer acknowledges and agrees that it shall be fully liable for its users’ acts and omissions, including but not limited to any user’s breach of this Agreement and/or Order Form. Retailer acknowledges and agrees that (i) Company is not liable for the Retailers Website, services and/or products; (ii) Company cannot provide assistance with the Retailer’s Website, services and/or products; (iii) Retailer is solely responsible for any liability which may arise from Retailers Website, services and/or products. Retailer shall defend, indemnify and hold harmless Company from and against any and all claims, losses, liabilities, expenses or damages, including attorney’s fees, arising from and/or relating to any breach of the terms and conditions set forth herein by Retailer and/or any of its users. Retailer agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Platform Widgets, and shall notify Company immediately of any such unauthorized access or use.  Retailer represents and warrants that Retailer and its users will also abide by the terms and conditions of this Agreement and Retailer acknowledges and agrees that it shall be fully responsible for any breach of this Agreement and/or Order Form by Retailer and/or any of its users.  Company does not collect any personal information from consumers unless the consumer creates an account, Retailer and/or its users create an account or are otherwise logged into their account.  Company will provide Retailer with standard reporting functionality in the reports section of Retailer’s dashboard on the Platform.

1.4 Right to Access and Use. Subject to Retailer’s payment of all fees and compliance with this Agreement, Company hereby grants Retailer (i) the right to access and/or use the Platform related to Retailer’s Website solely as described herein and in the applicable Order Form and (ii) a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Platform Widgets related to Retailer’s Website for its internal business purposes solely as described herein and in the applicable Order Form.  For the duration of the Term, Retailer will (a) embed the Platform Widgets in the shopping cart on Retailer’s Website; (b) place the Platform Widgets on the order confirmation page of Retailer’s Website; (c) place the Platform Widgets on the product pages throughout Retailer’s Website; and (d) integrate use of the Platform and Platform Widgets with the Retailer’s Website in accordance with the instructions provided by Company.

1.5 Restrictions. Except as expressly permitted hereunder, Retailer shall not, directly or indirectly, without the express, prior written consent of Company (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, assign or transfer the Platform, Platform Widgets or any portion thereof, or any of Retailer’s rights thereto, (ii) merge any Platform, Platform Widgets or any portion thereof with any other program or materials, (iii) copy, adapt, modify, make error corrections to the Platform Widgets in whole or in part, reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Platform, Platform Widgets or any other intellectual property provided or made available by Company, (iv) translate, localize, port, or otherwise modify any Platform, Platform Widgets any other intellectual property provided or made available by Company, (v) make any derivative works based on the Platform Widgets, (vi) remove, obliterate, modify, obscure or cancel from view any copyright, trademark, or other proprietary or confidentiality notice appearing on any materials provided or made available by Company, or fail to reproduce any such notice on any copy made of any such materials, (vii) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Platform, Platform Widgets, Company’s business operations or other customers, (viii) copy or imitate part or all of the design, layout or look and feel of the Platform or Platform Widgets in any form or media and/or access the Platform Widgets in order to build a similar or competitive product, or (ix) permit any other user, person and/or entity to engage in any of the foregoing conduct.  In the event of Retailer’s breach of this Section, Company may terminate Retailer’s account immediately without notice or liability.  Retailer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Platform that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (b) facilitates illegal activity, and/or (c) causes damage or injury to any person or property.  “Virus” shall mean any thing or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, service or device.  Company may, without liability to Retailer, disable or suspend the Retailer’s access to the Platform in the event (w) of any breach or anticipated breach of this Agreement, (x) Retailer’s or its users’ access to or use of the Platform disrupts or poses a security or other risk to Company, any other retailer, or any third party, (y) Retailer or its users are using the Platform for fraudulent or illegal activities, or (z) Company’s continued provision of any products or services to Retailer or its users is prohibited by applicable law.

2. Fees and Payment.  

2.1 Subscription Fees and Transactions. Retailer shall pay Company the subscription fee identified in the Order Form for access to the Platform, use of the Platform Widgets, and processing of transactions with Donations up to the amount set forth in the Order Form. In the event Retailer exceeds the number of transactions with Donations set forth in the Order Form, Company will charge Retailer for such excess as set forth in the Order Form.  Unless otherwise agreed, all fees will be charged to the Payment Method on file in accordance with Section 2.3 below and the Order Form.

2.2 Donations. Upon completion of the Return Lock Period, Company will automatically process the Donation on the payment method provided by Retailer.

2.3 Payment Method.  Upon creating an account, the Retailer shall be required to designate a credit card or bank account as the payment method for fees due hereunder (“Payment Method”). As of the Effective Date of this Agreement, ShoppingGives applies an administrative charge in the event Retailer elects to use a credit card Payment Method in an amount equal to 2.9% of the fees due plus thirty cents ($0.30). Retailer authorizes ShoppingGives and/or its third-party service provider to automatically charge the Payment Method for the fees in advance or as otherwise agreed to by the parties in writing.  Upon Company’s request, Retailer agrees to promptly complete and submit a credit card authorization and/or ACH authorization form to Company, as applicable.  ShoppingGives may use a third-party payment processor to process payments. Retailer’s credit card information or bank information will be processed and stored by such third-party payment processor. Retailer expressly understands and agrees that the processing of the Payment Method is governed by the third-party’s terms and conditions and ShoppingGives shall have no liability related thereto  If the Payment Method on file is closed or the account information is changed, or if, for any reason, a Payment Method is rejected, Retailer shall immediately update or supply a new Payment Method. If the Retailer does not notify us of updates to the Payment Method, to avoid interruption of the Platform and Platform Widgets, we may participate in programs supported by the card provider, bank or other third parties to try to update the Payment Method. Retailer authorizes ShoppingGives to continue billing the Payment Method with the updated information that ShoppingGives obtains. If Retailer is unable to update its Payment Method with appropriate information, then ShoppingGives may (in its sole and absolute discretion, and without liability) immediately suspend the access and/or use of the Platform and/or Platform Widgets, and ShoppingGives will send and/or email an invoice to Retailer detailing the amount due and such invoice shall be due and payable within five (5) days after the date of the invoice, or the account will be considered past due and ShoppingGives may suspend and/or terminate the Account, without liability, and seek all available remedies at law and in equity.  Retailer permanently and irrevocably waives any and all rights to enact a chargeback (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against ShoppingGives.  If ShoppingGives terminates an account, if a Retailer closes its account, uninstalls or deactivates the Platform and/or Platform Widgets, or if the payment of fees cannot be completed for any reason, Retailer shall remain obligated to pay ShoppingGives for all unpaid fees, Donations, and expenses plus any penalties, if applicable. In the event fees are not paid on a timely basis, interest will be due and payable and calculated daily at a rate of 1.5% per month.  ShoppingGives may take all steps necessary to collect the fees owed ShoppingGives hereunder and Retailer is responsible for all costs of collection, including without limitation reasonable attorneys' fees, for any payment default. Company may disable access to all or part of the Platform without liability if any fees are not paid in accordance with under this Agreement.  Suspension of the Platform and related services shall not release Retailer of its payment obligations under this Agreement.  All fees due and payable by Retailer to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.  

2.4 Expenses, Taxes and Third Party Fees. Retailer shall promptly reimburse Company for any pre-approved out-of-pocket expenses reasonably incurred in connection with the performance of this Agreement.  Fees are exclusive of applicable taxes.  Retailer is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement except for taxes based on Company’s net income or payroll taxes. Retailer shall also be responsible for all third-party fees (including, for example, mobile carrier fees, ‘ISP’ charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees) related to its access and/or use of the Platform and/or Platform Widgets. ShoppingGives is not responsible for such fees. Retailer will indemnify, defend and hold harmless Company for all taxes imposed which may be attributable to Retailer’s access to or use of the Platform.

2.5 Late Payments and Remedies. In the event fees are not paid on a timely basis, interest will be due and payable and calculated daily at a rate of 1.5% per month.  Notwithstanding anything herein to the contrary, in the event payments due hereunder are more than forty-five (45) days late, Donations shall be automatically deducted from Retailer’s payment account in accordance with the terms and conditions described herein. Retailer is responsible for all costs of collection, including without limitation reasonable attorneys' fees, for any payment default. Company may disable access to all or part of the Platform without liability if any fees are not paid in accordance with under this Agreement.  Suspension of the Platform and related services shall not release Retailer of its payment obligations under this Agreement.  All fees due and payable by Retailer to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.  

3. Term and Termination.

3.1 Term. The term of this Agreement commences on the effective date set forth in the applicable Order Form and shall remain in effect for the period of time identified in the applicable Order Form (“Initial Term”).  After the Initial Term, this Agreement will automatically renew for subsequent one-year terms (each, a “Renewal Term”) unless terminated by either Retailer or Company upon sixty (60) days advance written notice prior to the end of any then-current Term.   The fees that shall apply during the Renewal Term shall be Company’s then-current rates.  The Initial Term and each Renewal Term are collectively referred to herein as the “Term”.  

3.2 Termination  If Retailer breaches this Agreement and does not cure such breach within seven (7) days after written notice thereof, Company, in its sole and absolute discretion, may immediately terminate this Agreement and suspend Retailer’s and its users’ access to and/or use of the Platform and/or Platform Widgets without liability and  prejudice to other rights or remedies available at law or in equity.  If ShoppingGives terminates an account, the Retailer and its users may not subscribe under a new account unless formally invited by ShoppingGives. If Retailer and/or its users commit fraud and/or falsifies information in connection with its use of the Platform and/or Platform Widgets, such account will be terminated immediately and we reserve the right to hold Retailer and its users liable for any and all damages that ShoppingGives suffers, and ShoppingGives may pursue legal action through relevant local and national law enforcement authorities and may notify Retailer’s and its users ‘Internet Service Providers’ of any fraudulent activity ShoppingGives associates with the Retailer and its users access to and/or use of the Platform and/or Platform Widgets.  

3.3 Effect of Termination.  Upon termination, Retailer shall immediately cease using the Platform and Platform Widgets and delete the Platform Widgets. Upon termination, deactivation or uninstallation of the Platform and/or Platform Widgets, Retailer shall immediately pay Company all outstanding fees and Donations due hereunder through the end of the then-current Term and all Donations pending reconciliation will automatically be approved and charged to the Payment Method.

4. General.  It is understood and agreed that the relationship of Company to Retailer is and shall continue to be that of an independent contractor and neither Company nor any of Company’s employees shall be entitled to receive employee benefits from Retailer. The parties to this Agreement are not joint venturers, partners, agents, or representatives of each other.  No waiver by either party of the breach of any term or condition of this Agreement and/or Order Form will constitute a waiver of, or consent to, any subsequent breach of the same or any other term or condition of this Agreement and/or Order Form.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.  Each Order Form and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party.  The exchange of a fully executed Order Form by fax, electronic and/or computer image shall be sufficient to bind the parties to the terms and conditions of such Order Form.  Notwithstanding anything herein to the contrary, Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Retailer’s execution of a new or additional Order Form in which the modified version of this Agreement will be incorporated therein.  The parties agree that an electronic signature is the legal equivalent of its manual signature on the Order Form. The parties agree that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such certification of third party verification will not in any way affect the enforceability of the parties’ electronic signature or any resulting agreement between Company and Retailer. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.  This Agreement, Order Form, General Terms, and Privacy Notice constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof.  Retailer may enter into a ‘Retailer Technology Agreement’ with Company, and in such event if there is a conflict between the terms and/or conditions set forth in this Agreement and the terms and/or conditions in the ‘Retailer Technology Agreement’, the terms and/or conditions set forth in the ‘Retailer Technology Agreement’ shall govern.