GivingDNA® Terms of Service
LAST UPDATED: NOVEMBER 15, 2024
The following GivingDNA® Platform Terms of Service (this “Agreement” or “Terms of Service”), are incorporated in and made part of any Task Order (as defined below). Each of Allegiance and Client may be referred to herein individually as a “Party” or collectively as “Parties.”
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms have the meanings set forth in this Section:(a) “Administrative Portal” means an online interface where Client can interact with the GivingDNA Platform.
(b) “Affiliate” means, with respect to a Party, any corporation or legal entity which is controlled by, controls, or is under common control with such Party, where “control” means direct or indirect ownership of more than fifty percent (50%) of the voting shares or ownership interest of such corporation or legal entity (but only as long as such corporation or legal entity meets these requirements).
(c) “Allegiance” means Allegiance Fundraising, LLC, a Delaware limited liability company.
(d) “Client” means the “Client” identified in the applicable Task Order or Master Services Agreement with Allegiance.
(e) “Client Marks” means the Client name, logos, symbols, emblems, designs, and identifications.
(f) “Constituent and Giving Data” means data and Client’s donor’s name, email address and physical address, transaction ID, amount, date of transaction and any other associated giving data provided either via a third-party integration or uploaded directly to the GivingDNA Platform.
(g) “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that Allegiance makes available to Client or its Affiliates in hard copy or electronic form for the GivingDNA Platform, and any modified, updated, or enhanced versions of such documentation.
(h) “GivingDNA Platform” means the Allegiance marketing intelligence software as a service platform (in object code format only) that Allegiance makes available to Client over the Internet under this Agreement, which platform includes, without limitation, application programming interfaces, software development kits, software frameworks and libraries, and any and all modified, updated, or enhanced versions of such platform that Allegiance may provide Client or its Affiliates under this Agreement and if applicable, the Task Order.
(i) “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
(j) “Services” means, collectively, the GivingDNA Platform and any other related services provided by Allegiance.
(k) “Task Order” means a mutually agreed upon Allegiance task order or Allegiance GivingDNA Software-as-a-Service agreement executed by a duly authorized representative of each Party identifying the Services to be performed by Allegiance and the fees for such Services to be paid by Client.
(l) “Subscription Term” has the meaning given that term in the applicable Task Order.
(m) “Term” has the meaning given that term in the applicable Task Order.
2. GivingDNA PlatformSubject to Client’s compliance with the terms and conditions of this Agreement (including Client’s payment of the applicable fees), Allegiance will provide Client access, over the Internet, to the GivingDNA Platform as described in this Agreement and the Task Order.
3. Access; Restrictions; Ownership; Reservation of Rights3.1 Access to GivingDNA Platform. Subject to the terms and conditions of this Agreement, Allegiance hereby grants Client a limited, nonexclusive, nontransferable, non-sublicensable right to access and use the GivingDNA Platform during the Subscription Term solely for Client’s internal use.
3.2 Restrictions
Client acknowledges that the GivingDNA Platform and Documentation embody, contain and constitute valuable trade secrets of Allegiance. Accordingly, Client may not, and may not permit any third party to, (a) access or use the GivingDNA Platform except to the extent otherwise expressly permitted in this Agreement or an applicable Task Order; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms or structure ) of the GivingDNA Platform; (c) modify, adapt, translate or create derivative works based on the GivingDNA Platform or Documentation ; (d) hack, manipulate, interfere with or disrupt the integrity or performance of, or otherwise attempt to gain unauthorized access to any of the GivingDNA Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (e) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the GivingDNA Platform or Documentation, except to the extent otherwise expressly permitted in this Agreement or an applicable Task Order. Client may not remove, alter or obscure in any way any proprietary rights notices (including copyright notices) of Allegiance or its Affiliates or suppliers on or within the GivingDNA Platform or Documentation. Allegiance reserves all rights, title and interest in and to the GivingDNA Platform not expressly granted to Client in Article 3 and no implied licenses are granted by Allegiance to Client.
3.3 Ownership by Allegiance
Allegiance and its suppliers and licensors retain all right, title and interest in and to all Intellectual Property Rights in the GivingDNA Platform, Documentation, and any and all modifications, updates, and enhancements to the foregoing items, excluding any materials owned by Client under this Agreement. Client acknowledges that GivingDNA® is a registered trademark of Allegiance, and that it and the GivingDNA logo (collectively, the “GivingDNA Marks”) are the exclusive property of Allegiance. Client may not use any GivingDNA Marks or any other Allegiance name or trademark (collectively, “Allegiance Marks”) in any marketing materials, public communications or promotions without prior written consent from Allegiance. Any request for such use must be submitted in writing to Allegiance, specifying the intended use, medium and distribution method. Allegiance reserves the right to approve, deny or limit any such use at its sole discretion. Unauthorized use of the any GivingDNA Marks or Allegiance Marks is strictly prohibited and may result in immediate termination of this Agreement, legal action or both.
3.4 Ownership by Client
Client retains all right, title and interest, including all Intellectual Property Rights, in and to Client Confidential Information, Client Constituent and Giving Data, and Client Content.
4. Fees and Payment4.1 Payment Terms
For Clients who have a Master Services Agreement with Allegiance (“MSA”), Client’s payment obligations are specified in the MSA and in the “Pricing Fees and Billing Schedule” section of the Task Order, in addition to the provisions of this Article 4 (“Payment Terms”). For all other Clients, the Payment Terms are set forth in this Article 4 and either the “Pricing Fees and Billing Schedule” or “Costs” section of the Task Order, as applicable. Client is responsible for providing complete and accurate billing and contact information to Allegiance and notifying Allegiance promptly of any changes to such information in accordance with the Payment Terms.
4.2 Invoicing and Payment
Allegiance shall submit invoices to Client as provided below or pursuant to the schedule set forth in an applicable Task Order. Invoicing and payment shall conform to the procedure set forth below. Client shall designate its representative for billing purposes in the Task Order. Allegiance shall make reasonable efforts to issue invoices on a monthly basis and Client shall make payment to Allegiance within thirty (30) days from Allegiance’s invoice date (the “Client Payment Date”). All payments shall be in U.S. Dollars. Client shall pay Allegiance interest at the rate of one- and one-half percent (1.5%) per month (or part thereof) or the maximum allowed under applicable law, whichever is less, on any undisputed amount not fully paid within thirty (30) days from Allegiance’s invoice date. Such interest shall continue to accrue until any unpaid amount is fully paid. Invoices not resolved after 120 days may be submitted into debt collection and at such time Allegiance also shall be entitled to collect the reasonable costs of collection, including, without limitation, attorney fees relating to any effort to collect unpaid amounts under the MSA, if applicable, and the Task Order
4.3 Taxes
The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges. Client shall be responsible for payment of all such taxes (other than taxes based on Allegiance’s income and payroll related taxes), and any related penalties and interest, arising from the payment of the fees or the access or use of the GivingDNA Platform by Client, or performance of any Services by Allegiance.
4.4 Payment Disputes
If Client disputes any amounts invoiced or owed by Allegiance hereunder, Client may, within thirty (30) days following its receipt of such invoice (“Payment Dispute Notification Period”), provide Allegiance a written notice describing in reasonable detail what amounts are disputed and the reasons for such dispute (“Payment Dispute Notice”). Client shall pay the undisputed portion of the invoice when due. The Parties’ representatives shall thereafter meet (in person, video conference or by phone) within ten (10) days following Allegiance’s receipt of the Payment Dispute Notice and use good faith efforts to resolve the dispute. If the dispute is not resolved within forty-five (45) days following Client’s receipt of the disputed invoice, Allegiance may upon written notice suspend any or all Services or terminate this Agreement immediately for cause without any cure period. Unless otherwise set forth on a Task Order, no fees owed to Allegiance will be prorated if the Agreement is terminated prior to the end of a payment period. Client shall pay Allegiance any formerly disputed amounts owed to the extent resolved as provided herein plus any late payment interest payable on such amount pursuant to the Payment Terms, promptly following such resolution. If Allegiance does not receive a Payment Dispute Notice during the Payment Dispute Notification Period for a given invoice, such invoice will be deemed undisputed and payable by Client to Allegiance within thirty (30) days following Client’s receipt of such invoice. Client shall pay Allegiance all undisputed amounts on any disputed invoice within thirty (30) days following Client’s receipt of such invoice.
5. Term and Termination5.1 Term
The Term shall be as specified in the applicable Task Order. This Agreement shall automatically renew for the same length as the Term then in effect unless either Party indicates its intent not to renew this Agreement with 90 (ninety) days written notice prior to the end of the Term then in effect.
5.2 Termination for Cause
Either Party may terminate this Agreement or an applicable Task Order by giving written notice to the other Party if such other Party materially breaches any provision of this Agreement or such Task Order, such termination to be effective (a) on the thirty-first (31st) day following the date of such notice, if the breach is capable of being cured and is not cured within thirty (30) days following the date on such notice, or (b) immediately, if the breach is not capable of cure.
5.3 Effects of Termination
The expiration or termination of a Task Order shall not affect any other Task Order hereunder unless this Agreement expires or is terminated in whole. Upon termination of this Agreement:
(A) EACH PARTY SHALL RETURN OR DESTROY ALL CONFIDENTIAL INFORMATION AND ALL OTHER PAPERS, MATERIALS AND PROPERTIES OF THE OTHER PARTY RELATED TO THE TERMINATING AGREEMENT IN ITS POSSESSION OR CONTROL; AND
(B) CUSTOMER SHALL PAY TO ALLEGIANCE ALL FEES AND EXPENSES THAT HAVE ACCRUED UNDER THIS AGREEMENT PRIOR TO ANY TERMINATION OR EXPIRATION OF AN APPLICABLE PURCHASE ORDER OR THIS AGREEMENT.
Upon expiration or earlier termination of this Agreement, all rights or obligations will immediately terminate and be of no further force or effect, except that the following Sections will survive expiration or termination of this Agreement or any Task Order for any reason: 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership by Allegiance), 3.4 (Ownership by Client), 4 (Fees and Payment) (to the extent any amounts are owed as of termination or expiration), 5.3 (Effects of Termination), 6 (Confidential Information), 7 (Indemnification), 9.3 (Disclaimer), 10 (Limitation of Liability), 11 (Notices), and 13 (Miscellaneous). Any Sections of Task Orders that are expressly specified in such Task Orders to survive termination or expiration of the applicable Task Order shall also survive any termination or expiration of this Agreement.
6. Confidential Information6.1 As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, the terms of this Agreement, and any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Allegiance’s Confidential Information includes, without limitation, the GivingDNA Platform. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder.
6.2 Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose the terms of this Agreement, in whole or in part (a) to its owners, employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a Party, sources of debt financing, acquirers and subcontractors who have a need to know, and other persons who are required to receive such information to effectuate this Agreement, and in each case who are subject to non-disclosure agreements and legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by law or ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall, if legally permitted, provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Receiving Party agrees to exercise due care in protecting the Confidential Information of the Disclosing Party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.
6.3 Prior to providing its Constituent and Giving Data, including, but not limited to, constituent personally-identifiable information (“PII”) for the intended business purpose of utilization on the GivingDNA Platform, Client shall obtain consent from its own constituents regarding how its Constituent and Giving Data is used. For requests made by Client for Allegiance to utilize or enrich customer PII, Client represents and warrants that consent thereto has been granted by proxy to Allegiance, its Affiliates and the GivingDNA Platform (Consent by Proxy). Allegiance relies in all cases related to the requested business purpose by Client that the proper consent has been obtained, that Client has complied with all applicable laws and regulations, including, without limitation, HIPAA regulations Subpart E - § 165.514(f) governing uses and disclosures of protected health information (PHI) in connection with fundraising communications. Consent responsibility remains solely with Client for any actions related to the contracted business purpose.
6.4 Allegiance’s Data Protection Policy is available at https://www.givingdna.com/privacy-policy/.
7. Indemnification7.1 Indemnification by Allegiance
Allegiance shall indemnify, defend and hold Client and its parent, affiliates, subsidiaries, officers, directors, agents, and employees (“Client Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Client Indemnified Parties (including reasonable attorneys’ fees) arising from any Intellectual Property Rights infringement that arises out of Client’s use of the GivingDNA Platform (except for claims for which Allegiance is entitled to indemnification under Section 7.2, in which case Allegiance shall have no indemnification obligations with respect to such claim). Allegiance shall further indemnify, defend and hold the Client Indemnified Parties harmless from Liabilities arising out of Allegiance’s fraud, willful misconduct or gross negligence. Allegiance shall have no liability or obligation under this Section 7.1 with respect to any Liability if such Liability is caused in whole or in part by (w) Constituent and Giving Data, Client Marks or any other data or material supplied by Client, (x) modification of the GivingDNA Platform by any person other than Allegiance without Allegiance’s express consent; (y) the combination, operation, or use of the GivingDNA Platform with other product(s), data or services provided by Client, where the GivingDNA Platform would not by itself be infringing; or (z) the use of a superseded release of the GivingDNA Platform, if the claim would have been avoided by the use of the current release where it is not Allegiance’s responsibility to upgrade the GivingDNA Platform. If the use of the GivingDNA Platform by Client has become, or in Allegiance’s opinion is likely to become, the subject of any claim or infringement, Allegiance may at its option and expense: (a) procure for Client the right to continue using the GivingDNA Platform as set forth hereunder; (b) replace or modify the GivingDNA Platform to make it non-infringing so long as the GivingDNA Platform has similar functionality; (c) substitute a similar software for the GivingDNA Platform; or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement. This Section 7.1 states Allegiance’s entire obligation and Client’s sole remedies in connection with any claim regarding the Intellectual Property Rights of any third party.
7.2 Indemnification by Client
Client shall indemnify, defend and hold Allegiance and its Affiliates, and the officers, directors, agents, and employees of Allegiance and its Affiliates (“Allegiance Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the Allegiance Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of: (a) the Client Property or any webpages or accounts maintained by Client, including webpages or accounts with any third parties (including, but not limited to Instagram, Facebook and X); (b) products or services sold or distributed by Client or Client’s activities in connection with the Services or use of the GivingDNA Platform; (c) Client’s violation of any applicable law, rule or regulation (including the CAN-SPAM Act), any provision of this Agreement, or any provision of Allegiance’s terms of use or privacy policy (as amended from time to time); (d) any Intellectual Property Rights infringement claim against Client (except for claims for which Client is entitled to indemnification under Section 7.1, in which case Client shall have no indemnification obligations with respect to such claim) or other rights of any third party; (e) use of the Administrative Portal in such a manner that produces a recommendation that the GivingDNA Platform would not otherwise produce (for example, overrides Allegiance’s recommendation algorithms); (f) Client Content; Section 7.1(w), (x), (y) or (z). Client shall further indemnify, defend and hold the Allegiance Indemnified Parties harmless from Liabilities arising out of Client’s fraud, willful misconduct or gross negligence.
7.3 Indemnification Procedure
If a Client Indemnified Party or a Allegiance Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 7.1 or Section 7.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
8. Data Storage8.1 The data and other material supplied directly to Allegiance by Client in the course of using the GivingDNA Platform and all results obtained from Allegiance’s analysis of or calculations concerning such data (excluding any formats or layouts of such results that are native to the GivingDNA Platform) (“Client Data”) will be owned by Client, including the Constituent and Giving Data.
9. Representations, Warranties; Disclaimer9.1 Representations and Warranties
Each Party represents and warrants to the other Party that: (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation of such Party when executed and delivered by both Parties.
9.2 Client Agreements
Client shall: (a) be solely responsible for all use of the GivingDNA Platform and Services; (b) not violate, or use the Services in a way that violates (or causes Allegiance to violate) any applicable law, rule or regulation or third party right; (c) have obtained, and does hereby grant to Allegiance, all consents and rights in and to its Constituent and Giving Data disclosed to Allegiance or furnished through the GivingDNA Platform required for Allegiance to deliver the Services.
9.3 DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE GIVINGDNA PLATFORM, SERVICES, DOCUMENTATION OR OTHER MATERIALS PROVIDED BY ALLEGIANCE, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALLEGIANCE DOES NOT WARRANT THAT THE GIVINGDNA PLATFORM OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF ALLEGIANCE’S SUPPLIERS.
10. Limitation of LiabilityEXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3, OR (B) CUSTOMER’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ALLEGIANCE’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE GIVINGDNA PLATFORM, THE SERVICES, THE DOCUMENTATION OR OTHER MATERIALS PROVIDED BY ALLEGIANCE, WHETHER FORESEEABLE AND WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3, (B) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, AND (D) CUSTOMER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND THE GIVINGDNA PLATFORM, THE SERVICES, THE DOCUMENTATION AND OTHER MATERIALS PROVIDED BY ALLEGIANCE UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL FEES PAID OR PAYABLE TO ALLEGIANCE BY CUSTOMER UNDER THE PURCHASE ORDER CORRESPONDING TO THE GIVINGDNA PLATFORM SERVICE IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH FEE CORRESPONDING TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.
11. NoticesAny notice or other communication required or permitted under this Agreement shall be given in writing and shall be effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) business days after deposit in the United States Priority Mail or certified mail, return receipt requested, postage prepaid, addressed to the Party’s address set forth in the Task Order or at such other address as each Party may designate by like notice.
12. No Fundraising Counsel or Professional Fundraising ServicesUnless provided through a Consulting Services Agreement, the Parties agree and understand that Allegiance is providing a software platform and related technology, marketing and advertising services for use by Client. Nothing contained herein shall be deemed the provision of, and Allegiance does not provide, fundraising counsel or professional fundraising services as those terms are defined under state charitable solicitation laws under this Agreement. Allegiance shall at no time be soliciting contributions for or on behalf of the Client or retaining any person or entity to do so, nor shall it be providing advice, counsel or management services in connection with the Client’s own fundraising appeals or have custody or control of contributions made to the Client.
13. Miscellaneous13.1 Client may not remove or export from the United States or allow the export or re-export of the GivingDNA Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
13.2 If any provision of this Agreement is found or declared to be invalid or unenforceable by any court or other competent authority having jurisdiction, such finding or declaration will not invalidate any other provision hereof and this Agreement shall thereafter continue in full force and effect, except that such invalid or unenforceable provision, and (if necessary) other provisions thereof, shall be reformed by a court of competent jurisdiction so as to effect, insofar as is practicable, the intention of the Parties as set forth in this Agreement, provided that if such court is unable or unwilling to effect such reformation, the invalid or unenforceable provisions shall be deemed deleted to the same extent as if it had never existed.
13.3 Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of equity or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 13.3 shall be null and void.
13.4 This Agreement, any MSA and each Task Order collectively are the complete and exclusive statement of the mutual understanding of the Parties with respect to their subject matter, and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. The terms and conditions contained in any ordering document issued by Client will be of no force or effect, even if accepted by Allegiance. Allegiance may make changes to these Terms of Service from time to time. If Allegiance makes a material change to these Terms of Service, Allegiance will inform Client by e-mail to the e-mail address(es) noted on the Task Order (or subsequently designated by Client in writing as a contact for notifications from Allegiance), or through a banner or other prominent notice within the GivingDNA Platform. If Client does not agree to the change, Client must so notify Allegiance within fourteen (14) days after Allegiance’s notice. If Client so notifies Allegiance, then Client will remain governed by the most recent Terms of Service until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.
13.5 Except as otherwise provided in Section 13.4, all waivers and modifications must be in a writing signed by both Parties expressly referring to this Agreement or the provision to be waived or modified, as applicable.
13.6 No agency, partnership, joint venture, or employment is created as a result of this Agreement. Neither Party has any authority of any kind to bind the other Party.
13.7 In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and reasonable attorneys’ fees.
13.8 Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, if such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party shall give the other Party written notice as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
13.9 This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
13.10 Client acknowledges that any unauthorized use of the GivingDNA Platform will cause irreparable harm and injury to Allegiance for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Allegiance shall be entitled to injunctive relief if Client uses the GivingDNA Platform in violation of the limited rights granted herein or uses the GivingDNA Platform in any way not expressly permitted by this Agreement.