ShoppingGives General Retailer Terms

ShoppingGives offers a software-as-a-service technology platform with various widgets and features, including cart widgets, product widgets and donation widgets, scripts, application programming interfaces, integrations with third party applications, data analytics, loyalty point redemption capabilities and other features and functions (“Platform” and any downloadable software made available therein, “Software”) designed to support the giving economy, including by enabling participating merchants to allow their customers the opportunity to pledge donations to nonprofits and other charitable organizations (collectively, “charities”) through purchases made on the merchant’s websites and online services.  

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These ShoppingGives General Merchant Terms (“General Merchant Terms”) are made and entered into between Niche Interactive Media Inc. d/b/a ShoppingGives (collectively, “ShoppingGives”,  “we”, “our”, and “us”) and you and your subsidiaries and affiliates (collectively, “Merchant”, “you” and “your”).  These General Merchant Terms, together with either (i) the Impact Starter Merchant Terms of Service, for Merchants that enroll in ShoppingGives’ Impact Starter program (“Impact Starter Terms”), or (ii) the Impact Plus Merchant Terms of Service, for Merchants that enroll in ShoppingGives’ Impact Plus program (“Impact Plus Terms”) (collectively, “Agreement”), constitute the entire agreement between ShoppingGives and Merchant with respect to Merchant’s use of the Platform and related services.  In the event of a conflict between the Impact Starter Terms or Impact Plus Terms, as applicable, and these General Merchant Terms, the Impact Starter Terms or Impact Plus Terms will apply. If you do not agree with this Agreement, you may not use the Platform.

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BY CHECKING THE BOX TO INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND CLICKING ON THE ‘ACCEPT’ BUTTON ON THE SCREEN TO ACCESS THE PLATFORM OR BY DOWNLOADING, ACCESSING OR USING ANY FEATURES 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 OR MAY BE ESTABLISHED BY SHOPPINGGIVES 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 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 YOU AS AN INDIVIDUAL TOGETHER WITH EACH ENTITY OR AGENCY. THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL GOVERN YOUR ACCESS TO OR USE OF THE PLATFORM. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT ACCEPT THIS AGREEMENT, NOW OR IN THE FUTURE, YOU MUST STOP YOUR USE OF THE PLATFORM IMMEDIATELY, AND ANY CONTINUING ACCESS OR USE OF THE PLATFORM IS UNAUTHORIZED.

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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. Definitions.

• 1.1. “Applicable Data Protection Law” means applicable data protection laws, rules, regulations, orders, ordinances, regulatory guidance, including but not limited to, as applicable, the California Consumer Privacy Act (including as amended by the California Privacy Rights Act), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, and the Connecticut Act Concerning Personal Information Privacy and Online Monitoring, in each case as amended.
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• 1.2 “Automatically Collected Data” means transactional information relating to individual Purchases and Donations and online activity data of consumers that visit a Merchant Store, in each case as collected automatically via the Platform integration with a Merchant Store.
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• 1.3 “Data Controller” means an entity that, alone or jointly with others, determines the purposes for and means of Processing. “Data Controller” has the same meaning as “Business,” as that term is defined under Applicable Data Protection Law.
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• 1.4 “Data File” means any file containing data of multiple consumers that is uploaded to the Platform either manually or through an API integration with a Merchant Store. For clarity, Data Files do not include Automatically Collected Data.
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• 1.5 “Data Processor” means a natural or legal person that Processes personal information on a Data Controller’s behalf. “Data Processor” has the same meaning as “Service Provider,” as that term is defined under Applicable Data Protection Law.
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• 1.6 “Data Programs” means data-driven programs and services offered by ShoppingGives as part of the Platform that involve ShoppingGives’ use of data from charities and merchants (including Merchant) in order to generate insights and analysis and for Targeted Advertising, including re-targeting and re-engaging consumers based on cause affinity and preferences, to create and supplement user profiles based on purchase and donation practices, and to target lookalike audiences. 
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• 1.7 “Donations” means donations pledged through the Platform by visitors to the Merchant Store or by Merchant.
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• 1.8 “Brand Materials” means an entity’s name and any trademarks, logos or other advertising and promotional materials made accessible by a party.
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• 1.9 “Merchant Data” means Automatically Collected Data and Data Files. 
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• 1.10 "Intellectual Property Rights" means any and all right, title, and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, trade dress and packaging, moral rights, and rights of privacy, publicity and similar rights of any type under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
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• 1.11 “Merchant Store” means any Merchant store that Merchant uses in connection with the Platform, which may include websites, online services or in-person point of sale systems.  
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• 1.12 “Order Form” means any ordering document or statement of work or similar document that references this Agreement, is fully executed by the Parties and sets out (a) any specific services to be provided by ShoppingGives to Merchant, or (b) any fees for services payable by Merchant, under this Agreement.
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• 1.13 “Personal Information” means Merchant Data that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable individual or as “personal information,” “personal data” or a similar term is defined under Applicable Data Protection Law.
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• 1.14 “Process” or “Processing” means any operation or set of operations performed on information, whether or not by automated means, including, but not limited to, accessing, collecting, recording, organizing, structuring, using, storing, transferring, retaining, disclosing, selling, sharing, deleting, and destroying.
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• 1.15 “Purchase” means each pre-tax, post-discount amount paid by a consumer on the Merchant Store (excluding applicable shipping and handling fees).
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• 1.16 “Targeted Advertising” means using information to show advertisements to consumers on websites or online services not owned or controlled by Merchant and expressly includes any activity that is considered a “sale,” “share,” or “targeted advertising” under Applicable Data Protection Law.

2. The Platform.

2.1 Rights.  Subject to the terms of this Agreement, ShoppingGives grants Merchant: (a) a right to use the Platform during the Term solely for its internal business purposes; (b) a nonexclusive, royalty-free, non-sublicensable, non-transferable license during the Term to install and run a single copy of any Software on the Merchant Store to enable Merchant to integrate use of the Platform via that Merchant Store and (c) a nonexclusive, royalty-free, non-sublicensable, non-transferable, perpetual license to download and use a copy of each report generated for Merchant through the Platform (each, a “Report”) solely for Merchant’s internal business purposes,  In each case of (a) through (c), in accordance with all instructions and documentation made available by ShoppingGives.

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2.2 Donations.  Merchants may elect to donate to participating charities in various ways, which may include 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, or by allowing consumers to round up the price of a Purchase or to match or add to the amount the Merchant elects. For clarity, each of these is considered a Donation.

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2.3 Updates. During the Term, ShoppingGives may, in its sole discretion, make available to Merchant such updates, patches and bug fixes for the Platform as may, from time to time, be made generally available by ShoppingGives to its customers.  ShoppingGives reserves the right to (i) correct any errors, inaccuracies, or omissions with respect to any information on the Platform, or (ii) make changes to content, descriptions, service or other information without obligation to issue any notice of such changes, except as prohibited by law.  The Platform may be modified, updated, suspended or discontinued by ShoppingGives at any time, without liability.

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

3.1 Return Lock Period.  After a Donation is made, the amount of such Donation is not immediately available to grant to the designated nonprofit  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 a Merchant Store that includes a Donation, such Purchase shall be considered ‘new’ during the return lock period timeframe, which shall be 30 days unless otherwise identified on an Order Form (the “Return Lock Period”). A ‘new’ Purchase is a transaction that has been recorded to Merchant’s sales journal but has not matured beyond the Return Lock Period. During the Return Lock Period, Merchant 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, ShoppingGives will process the Donation as described herein.

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3.2 Distribution of Donations.

(a) ShoppingGives will distribute Donation(s) in its entirety to ShoppingGives Foundation (Federal Tax ID 83-1352270), an Illinois 501(c)(3) charitable organization with which ShoppingGives has a commercial co-venture relationship (“ShoppingGives Foundation”). ShoppingGives Foundation oversees the disbursement of funds to eligible charities. ShoppingGives Foundation makes every effort to comply with Merchant and consumer recommendations and to grant the funds to the beneficiary designated by Merchant 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 Merchant or consumer may designate a charity that does not satisfy ShoppingGives Foundation’s criteria. The Merchant 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 charity because, for example, the charity 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 Merchant to recommend an alternate charity to receive the Donation, or grant the Donation to another charity working in the same cause area (as determined solely by ShoppingGives Foundation), with or without notice to the Merchant. It is the practice of ShoppingGives Foundation to deliver granted funds to any designated charity on no less than a bi-yearly basis.  

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(b) 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) nonprofit that raises new funds for charities through technology. PPGF (Federal Tax ID 45-0931286) certifies charities that participate in the ShoppingGives or ShoppingGives Foundation program and receives Donations from ShoppingGives or ShoppingGives Foundation and provides one hundred percent (100%) of those Donations to benefiting charities. Donations for charities are processed via ShoppingGives 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 or policies shall be incorporated herein by reference.

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(c) Each Donation made to PPGF shall be given to charities in the form of grants to further charitable and educational purposes. When the ShoppingGives Foundation makes a donation to PPGF, Merchant may recommend that PPGF make a corresponding grant to a charity in an amount equal to the amount of the 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 ShoppingGives or the ShoppingGives Foundation. If it is unable to follow the recommendation, PPGF may reassign a Donation to a similar charity, in accordance with its Donation Delivery Policy.

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(d) 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).

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(e) ShoppingGives Foundation will provide Merchant with a Donation receipt, and Merchant 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, Merchant acknowledges and agrees that all Donations are final and non-refundable gifts for distribution by ShoppingGives to ShoppingGives Foundation or PPGF (as applicable).  Refunds of Donations shall be granted only in exceptional circumstances.  To ShoppingGives’ 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, charities, and Merchant by transparently showing funds received, funds expected, and funds distributed to charities. 

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3.3 Establishing an Account and Reporting. Merchant 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 ShoppingGives in its sole discretion, (iii) determine the administrative user authorized to control Merchant’s account access or controls, and (iv) update and correct information submitted to create or maintain Merchant’s account.  Accounts are non-transferrable and may not be sold, combined or otherwise shared with any other person or entity.  Merchant is solely responsible for maintaining the security and confidentiality of the password used to access its account and acknowledges and agrees that ShoppingGives shall have no responsibility for any incident arising out of, or related to, the account settings or any integration of any widgets or other features into the Merchant Store.  ShoppingGives will assume that anyone using the Platform or transacting through Merchant’s account is authorized by Merchant.  Merchant represents and warrants that its users of the Platform will abide by the terms and conditions of this Agreement, and Merchant 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 or any applicable Order Form. Merchant acknowledges and agrees that (i) ShoppingGives is not liable for the Merchant Store, services or products; (ii) ShoppingGives cannot provide assistance with the Merchant Store, or Merchant’s services or products; (iii) Merchant is solely responsible for any liability which may arise from the Merchant Store, services or products. Merchant shall defend, indemnify and hold harmless ShoppingGive from and against any and all claims, losses, liabilities, expenses or damages, including attorney’s fees, arising from or relating to any breach of the terms and conditions set forth herein by Merchant or any of its users. Merchant agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and shall notify ShoppingGives immediately of any such unauthorized access or use.  Merchant represents and warrants that Merchant and its users will also abide by the terms and conditions of this Agreement and Merchant acknowledges and agrees that it shall be fully responsible for any breach of this Agreement or any applicable Order Form by Merchant or any of its users.  ShoppingGives will provide Merchant with standard reporting functionality in the reports section of Merchant’s dashboard on the Platform.

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3.4 Restrictions. Except as expressly permitted hereunder, Merchant shall not, directly or indirectly, without the express, prior written consent of ShoppingGives (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 or any portion thereof, or any of Merchant’s rights thereto, (ii) merge the Platform or any portion thereof with any other program or materials, (iii) copy, adapt, modify, make error corrections to the Platform in whole or in part, reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of the Platform or any other intellectual property provided or made available by ShoppingGives, (iv) translate, localize, port, or otherwise modify the Platform or any other intellectual property provided or made available by ShoppingGives, (v) make any derivative works based on the Platform, (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 ShoppingGives, 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, ShoppingGives’ business operations or other customers, (viii) copy or imitate part or all of the design, layout or look and feel of the Platform in any form or media or access the Platform in order to build a similar or competitive product, or (ix) permit any other user, person or entity to engage in any of the foregoing conduct.  In the event of Merchant’s breach of this section, ShoppingGives may terminate Merchant’s account immediately without notice or liability.  Merchant 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, 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.  ShoppingGives may, without liability to Merchant, disable or suspend the Merchant’s access to the Platform in the event (w) of any breach or anticipated breach of this Agreement, (x) Merchant’s or its users’ access to or use of the Platform disrupts or poses a security or other risk to ShoppingGives, any other Merchant, or any third party, (y) Merchant or its users are using the Platform for fraudulent or illegal activities, or (z) ShoppingGives’ continued provision of any products or services to Merchant or its users is prohibited by applicable law.

4. Fees and Payment.

4.1 Payment Method.  Upon creating an account, the Merchant 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 Merchant elects to use a credit card Payment Method in an amount equal to 2.9% of the fees due plus thirty cents ($0.30). Merchant authorizes ShoppingGives 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 ShoppingGives’ request, Merchant agrees to promptly complete and submit a credit card authorization or ACH authorization form to ShoppingGives, as applicable.  ShoppingGives may use a third-party payment processor to process payments. Merchant’s credit card information or bank information will be processed and stored by such third-party payment processor. Merchant 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, Merchant shall immediately update or supply a new Payment Method. If the Merchant does not notify us of updates to the Payment Method, to avoid interruption of the Platform, we may participate in programs supported by the card provider, bank or other third parties to try to update the Payment Method. Merchant authorizes ShoppingGives to continue billing the Payment Method with the updated information that ShoppingGives obtains. If Merchant 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 or use of the Platform, and ShoppingGives will send or email an invoice to Merchant 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 or terminate the Account, without liability, and seek all available remedies at law and in equity.  Merchant 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 Merchant closes its account, uninstalls or deactivates the Platform, or if the payment of fees cannot be completed for any reason, Merchant 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 Merchant is responsible for all costs of collection, including without limitation reasonable attorneys' fees, for any payment default. ShoppingGives 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 Merchant of its payment obligations under this Agreement.  All fees due and payable by Merchant to ShoppingGives under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. 

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4.2 Expenses, Taxes and Third Party Fees.  Merchant shall promptly reimburse ShoppingGives for any pre-approved out-of-pocket expenses reasonably incurred in connection with the performance of this Agreement.  Fees are exclusive of applicable taxes.  Merchant 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 ShoppingGives’ net income or payroll taxes. Merchant 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 or use of the Platform. ShoppingGives is not responsible for such fees. Merchant will indemnify, defend and hold harmless ShoppingGives for all taxes imposed which may be attributable to Merchant’s access to or use of the Platform.

5. Capabilities and Equipment.

Merchant 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 or use the Platform, and (ii) ensuring that its network and systems comply with the relevant specifications provided by ShoppingGives from time to time.

6. 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 Merchant’s account to be applied on future invoices as determined by ShoppingGives 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.

7. Ownership; License; Restrictions on Data Use.

7.1 Ownership. Subject to the limited licenses and usage rights granted hereunder:

1. Merchant and its licensors reserve all right, title and interest (including all Intellectual Property Rights) in and to Merchant Brand Materials and Data Files; and
2. ShoppingGives and its licensors reserve all right, title and interest (including all Intellectual Property Rights) in and to the Platform.   

7.2 Brand Materials.  

1. Subject to the terms of this Agreement, Merchant hereby grants ShoppingGives a limited, non-exclusive, worldwide, non-sublicensable, royalty-free license to use, distribute, reproduce and publicly display the Merchant’s Brand Materials for the purposes of promoting or advertising Merchant’s products and services or a charity’s social impact benefits associated therewith on ShoppingGives’ web properties and other properties and media, including third-party websites.  
2. Subject to the terms of this Agreement, ShoppingGives hereby grants Merchant a limited, non-exclusive, worldwide, non-sublicensable, royalty-free license during the Term, to use, distribute, reproduce and publicly display any nonprofit’s Brand Materials provided to Merchant by ShoppingGives for the purposes of: (i) promoting or advertising social impact benefits associated with the purchase of any Merchant’s products and services on Merchant’s websites and online services; and (ii) with such nonprofit’s prior written approval, in connection with Targeted Advertising efforts relying upon donor data provided by the nonprofit. 

7.3 Merchant Data.  Subject to Merchant’s opt-out rights specified in Section 10.2, Merchant hereby grants ShoppingGives a worldwide, fully paid, royalty-free, non-exclusive, non-transferable (except in connection with Section 19), non-sublicensable (other than to subcontractors working on ShoppingGives’ behalf) license to Process Merchant Data for its legitimate business purposes, including to provide and improve the Platform and Data Programs.  Such license will be perpetual and irrevocable except for any Personal Information processed as a Data Processor as specified in Section 10.2(b).  

8. Confidentiality.

8.1 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 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.”

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8.2 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 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 Section 8) 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.  

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8.3 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; 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.

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8.4 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.

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8.5 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.

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8.6 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 Section 8, 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.

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8.7 Remedy.  Each party acknowledges that a breach of this Section 8 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 Section 8 shall survive the termination of this Agreement.

9. Advertising and Marketing.  

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

10. Privacy. 

10.1  Processing.  Except as specified in Section 10.2, ShoppingGives will Process Personal Information as a Data Controller, including to provide and improve the Platform and Data Programs.  ShoppingGives will not disclose Merchant Data, including any Personal Information therein, to merchants or other third parties to use for their own purposes unless agreed by Merchant or as required by law. For clarity, insights and analytics derived from Merchant Data may be disclosed to merchants or other third parties but ShoppingGives will not disclose the identity of Merchant unless otherwise agreed by Merchant.

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10.2  Opt-Out Rights.  If Merchant enrolls in ShoppingGives’ Impact Plus, Partner, or Pro program, and has opted out of use of Merchant Data for Data Programs via an Order Form or other designated method approved by ShoppingGives, ShoppingGives: (a) will not use Automatically Collected Data to provide Data Programs (including Targeted Advertising) for the benefit of any third party; and (b) will Process Data Files as a Data Processor in accordance with the Data Processing Addendum https://shoppinggives.com/data-processing-addendum.  Additionally, If Merchant informs ShoppingGives that a consumer has opted out of Targeted Advertising in accordance with Section 10.2, ShoppingGives will not use Personal Information relating to such consumer to provide Data Programs (including Targeted Advertising) for the benefit of any third party.

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10.3 Consumer Rights. Merchant represents and warrants that, unless the applicable Order Form indicates that the Merchant has opted out of any use of Personal Information for Targeted Advertising: (i) it has provided the individuals to whom any Personal Information relates notice of the use and disclosure of their personal data for Targeted Advertising and the ability to opt out of the use and disclosure of their personal data for such purposes; (ii) it will immediately notify ShoppingGives of any opt-out request Merchant receives related to Targeted Advertising by completing the form provided by ShoppingGives at https://www.shoppinggives.com/consumer-opt-out-notice-for-merchants; (iii) it will only communicate to ShoppingGives actual opt-out preferences from consumers and not make any such choices on any consumer’s or group of consumers’ behalf; and (iii) it will immediately notify ShoppingGives if it is unwilling or unable to comply with the foregoing requirements, now or in the future, in which case it will immediately discontinue any access or use of the Platform (and any continuing access or use of the Platform is unauthorized).

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10.4 Personal Information Subject to the CCPA.  With respect to Personal Information relating to California residents for which ShoppingGives Processes as a Data Controller: (i) Merchant makes Personal Information available to ShoppingGives in order for ShoppingGives to operate the Platform, including for the purposes described in Section 10.1; (ii) each party will comply with Applicable Data Protection Law; (iii) Merchant has the right (a) to take reasonable and appropriate steps designed to ensure that ShoppingGives uses Personal Information in a manner consistent with Merchant’s obligations under Applicable Data Protection Law and (b) upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information; and (iv) in the event ShoppingGives makes a determination that it can no longer meet its obligations under Applicable Data Protection Law, ShoppingGives will notify Merchant of such determination.

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10.5 Restrictions.  Merchant represents and warrants that Personal Information does not and will not relate to individuals outside the United States.  

11. Representations and Warranties.

11.1 Representations and Warranties. each party represents and warrants to the other party that (a) it 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) it has the requisite legal and corporate power and authority to enter into this Agreement and grant the rights as set forth in this Agreement. ShoppingGives 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. Merchant represents and warrants that (i) the collection and provision of Merchant Data, the upload of such Merchant Data to the Data Sharing Platform, and the authorization to use such Merchant Data in accordance with this Agreement is performed in compliance with Applicable Data Protection Laws; (ii) Merchant Data does not contain information relating to children or any other information that is treated as sensitive under applicable law; (iii) to Merchant’s knowledge, Merchant Data is up to date, complete and accurate and (iv) Merchant has obtained any and all necessary consents, permissions or approvals in connection with the Merchant Data as may be required to enable any Processing authorized or contemplated under this Agreement, including but not limited to obtaining explicit authorization from the consumer or other relevant party for the collection, processing, provision or use of Merchant Data.

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11.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHOPPINGGIVES 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 OR NON-INFRINGEMENT.  THE PLATFORM AND ALL PRODUCTS, SERVICES, AND DATA ARE PROVIDED BY SHOPPINGGIVES “AS IS.”  SHOPPINGGIVES DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PLATFORM, PRODUCTS, SERVICES OR DATA PROVIDED BY SHOPPINGGIVES IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE 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.  MERCHANT AGREES THAT ITS USE OF THE PLATFORM IS SOLELY AT ITS OWN RISK, AND THAT SHOPPINGGIVES MAKES NO WARRANTIES OR PROMISES OF ANY KIND RELATED TO MERCHANT’S USE OF THE PLATFORM. SHOPPINGGIVES 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, MERCHANT CONTENT OR OTHER INFORMATION THAT MERCHANT OR ITS USERS SUBMITS OR USES IN CONNECTION WITH THE PLATFORM, OR (III) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.

12. Indemnification.

Merchant 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) Merchant’s or its users negligence, misconduct, acts or omissions; (ii) Merchant’s or its users breach or alleged breach of any terms or conditions of this Agreement; or (iii) Merchant’s or its users use of, or activities in connection with, PPGF.

13. Limitation of Liability.

SHOPPINGGIVES, ITS AFFILIATES AND ITS SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS, MERCHANTS, AND VENDORS SHALL NOT BE LIABLE TO MERCHANT, ITS USERS OR ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, ANY DONATIONS THROUGH THE PLATFORM, MERCHANT AND ITS USERS ACCESS TO OR INABILITY TO ACCESS THE PLATFORM, INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL 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 OR OMISSIONS BY SHOPPINGGIVES, ITS EMPLOYEES, REPRESENTATIVES OR AGENTS.

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SHOPPINGGIVES’ MAXIMUM AGGREGATE LIABILITY TO MERCHANT AND ITS USERS FOR DIRECT DAMAGES THAT MERCHANT AND ITS USERS SUFFER IN CONNECTION WITH THE PLATFORM IS LIMITED TO THE LESSER OF (i) THE AMOUNT PAID, IF ANY, BY MERCHANT AND ITS USERS TO SHOPPINGGIVES IN CONNECTION WITH THE PLATFORM 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.  MERCHANT AND ITS USERS ACCESS TO OR USE OF THE PLATFORM IS AT MERCHANT’S AND ITS USERS’ OWN RISK.).

14. Dispute Resolution.

EXCEPT FOR DISPUTES OR CLAIMS RELATED TO SHOPPINGGIVES’ IP 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.

15. 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 ShoppingGives’ IP 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.

16. Notices.

‍Except as otherwise permitted in this Agreement, all notices sent to ShoppingGives 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.

17. Additional Terms.

In the event that Merchant accesses the Platform through the Shopify API, the following additional terms shall apply.

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17.1 Merchant acknowledges and agrees that: (a) as between Shopify and ShoppingGives, ShoppingGives is solely responsible for its Platform; (b) Shopify is not liable for any fault in the Platform 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 (d) as between Shopify and ShoppingGives, ShoppingGives is solely responsible for any liability which may arise from Merchant’s access to or use of ShoppingGives’ Platform, including: (i) the development, use, marketing or distribution of or access to ShoppingGives’ Platform, including support of the Platform; or (ii) ShoppingGives’ access, use, distribution or storage of Merchant 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.

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17.2 ShoppingGives will acknowledge any material security incidents relating to the Platform reported to it within 72 hours of receipt.

18. Consumer Terms.  

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

19. Assignment. 

Merchant may not assign this Agreement or any rights under it, or delegate any obligations to a third party without the express prior written consent of ShoppingGives.  Any attempted assignment by Merchant in violation of this paragraph will be null and void.  ShoppingGives may assign this Agreement without consent or notice, including in the context of a sale, merger, operation of law, or otherwise.  Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of parties and their successors and permitted assigns.