PARTICIPATING CHARITY LICENSE AGREEMENT
RECITALS
WHEREAS, Giving is a limited liability company that created and owns software technology including but not limited to the Giving Key Application (“App”) that can be installed and run on a computer, tablet, smartphone, or other electronic device that allows merchants to donate a percentage of the merchant processing company’s residual to the Participating Charity of the merchant’s choice, and whereas the merchants will also be provided the ability to use the App to give directly to the Participating Charity of choice. Giving also has the ability to license the App to Participating Charities, merchant processing companies, and merchants, but desires the assistance of other merchant processing companies and independent sales organizations (“ISOs”) to license the App as well;
WHEREAS, the Participating Charity or Licensee acknowledges and agrees to the terms of this Participating Charity License Agreement and wishes to be included in Giving’s network of Participating Charities, allowing users of the Giving Key App to make charitable donations to Licensee, and hereby understands and accepts the terms, conditions and covenants set forth in this Participating Charity License Agreement as those that are reasonably necessary to maintain the standards of quality and service designed to protect the goodwill and enhance the public image of the Giving Key App, and recognizes the necessity of utilizing the license granted herein in faithful compliance herewith.
ARTICLE I.
DEFINITIONS
Unless the context of their use in this Agreement requires otherwise, the following words and phrases shall have the following meanings when used in initially-capitalized form in this Agreement.
1.1 “Giving Key” shall mean Giving Key, LLC, its agents, successors, assigns, legal representatives, non-legal representatives, personal representatives, employees, officers, directors, affiliates and subsidiaries, as well as any other persons acting or purporting to act on its behalf, including any attorney or other representative, whether authorized or not.
1.2 “License” shall mean the rights granted the Licensee pursuant to Section 2 of this Agreement.
1.3 “Participating Charity” or “Participating Charities” or “Licensee” or “Licensees” shall mean those charities that have agreed to the Participating Charity License Agreements with Giving Key by acknowledging and agreeing to such terms by checking the box on the application page of the Giving Key App.
1.4 “Person” shall mean any individual or business entity, including (without limitation) corporation, joint venture, general partnership, limited partnership, limited liability company, or trust.
1.5 “Giving Marks” or “Giving Marks” shall mean the proprietary, distinctive and characteristic trade names, trademarks, service marks, and trade dress which Giving designates in writing or through usage from time to time as prescribed for use with the Giving Key name, including (without limitation) the term “Giving Key,” the Giving Key App, emblems, designs, logos, color schemes, business cards, letterhead or domain names.
1.6 “Charity Marks” or “Charity Marks” shall mean the proprietary, distinctive and characteristic trade names, trademarks, service marks, and trade dress which the Participating Charity designates in writing or through usage from time to time as prescribed for use with its operations, including (without limitation) the Participating Charity’s name, emblems, designs, logos, color schemes, business cards, letterhead or domain names.
1.7 “Proprietary Marks” shall mean the Giving Marks and Charity Marks, collectively.
ARTICLE II
MUTUAL LICENSE GRANT
The parties hereto grant each other, for the following stated term, the following rights, license and privileges:
2.1 Initial Term: The initial term of this Agreement is twelve (12) months from the Effective Date, which means the date the Participating Charity or Licensee agrees and acknowledges the terms of this Agreement by checking the box on the Giving Key App application page. Thereafter, this Agreement shall renew automatically for additional terms of 1 year each measured from each anniversary of the Effective Date unless either Party provides the other Party with written notice of its intention not to renew the Agreement at least 30 days prior to the expiration of the applicable current term.
2.2 Participating Charity’s License: (a) To receive donations via the Giving Key App from participating merchants during the term of this Agreement; and (b) to have the non-exclusive rights to adopt and use the Giving Key App and the “Giving Key” name within the current boundaries of this Agreement and for the term of this Agreement.
2.3 Use of Giving Key’s Marks: Participating Charity shall have the license and right to use Giving Key’s Proprietary Marks and service such Marks in a commercially reasonable manner in promoting charitable donations. Participating Charity is not required to use the Giving Key’s Proprietary Marks as part of this Agreement.
2.4 Giving Key’s License: (a) to promote and facilitate donations to the Participating Charity via the Giving Key App from participating merchants during the term of this Agreement; and (b) to have the non-exclusive rights to adopt and use the Giving Key App and the “Giving Key” name within the current boundaries of this Agreement and for the term of this Agreement.
2.5 Use of Participating Charity’s Marks: Giving shall have the license and right to use Participating Charity’s Marks and service such Marks in a commercially reasonable manner in promoting charitable donations to the Participating Charity via its website, mobile applications, merchant processing agreements, and donations. Participating Charity also grants a limited license to display Participating Charity’s Marks in connection with promotion of merchant processors or customers as “Proud Sponsor of …” or words to that effect.
ARTICLE III
FEES AND CHARGES
3.1 No License Fee. In consideration of the mutual benefits anticipated under this Participating Charity License Agreement, neither party shall be obligated to pay the other party a licensing fee for the use of its protected Marks.
ARTICLE IV
PROPRIETARY MARKS
4.1 Licensed Use. The Parties represent with respect to the Proprietary Marks that they will use, and permit each other to use, the Proprietary Marks only in a professional, businesslike manner and purpose according to the goodwill associated with and symbolized by the Proprietary Marks. With respect to each Party’s licensed use of the other’s Proprietary Marks pursuant to this Agreement, the Parties agree that:
(a) Participating Charity shall have the right, but not the obligation, to use the Giving Marks only in connection with promotion and use of Giving Key App as it relates to increasing donations to the Participating Charity. Likewise, Giving shall use the Participating Charity Marks only in connection with promotion and use of the Giving Key App or website as it relates to increasing donations to the Participating Charity by member merchant processors and their customers.
(b) Neither Party shall use the other’s Proprietary Marks to incur any obligation or indebtedness.
4.2 Further Understanding. The Parties expressly understand and acknowledge that:
(a) the Parties shall not directly or indirectly contest the validity or the ownership of the Proprietary Marks owned by the other Party, as defined herein;
(b) a Party’s use of the other’s Proprietary Marks pursuant to this Agreement does not confer any ownership interest or other interest in or to the Proprietary Marks, except the nonexclusive license granted herein;
(c) any and all goodwill arising from the use of a Party’s Proprietary Marks shall inure solely and exclusively to the Party owning such Proprietary Marks, and upon expiration or termination of this Agreement and the License herein granted, no monetary amount shall be assigned as attributable to any goodwill associated with the licensed use of another Party’s Proprietary Marks;
(d) the right and license in and to the Proprietary Marks granted hereunder is nonexclusive; and
(e) each Party reserves the right to update or substitute different Proprietary Marks for use by the other in connection with this Agreement, and the licensee shall use commercially reasonable efforts to incorporate such updated or substituted Proprietary Marks as soon as practicable.
ARTICLE V
CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Parties acknowledge they may provide to each other information concerning their respective operations, including the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing Party. As a condition to the receipt of the Confidential Information, the Parties shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the other Party’s Confidential Information; (ii) not use the other Party’s Confidential Information in any fashion except to perform its duties hereunder or with the other Party’s express written consent; (iii) disclose the other Party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto internal business purposes; (iv) take all necessary steps to ensure that their respective employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The Parties shall promptly notify each other of any unauthorized disclosure or use of the Confidential Information, and shall cooperate and assist in preventing or remedying any such unauthorized use or disclosure.
5.2 Use of Confidential Information. The Parties acknowledge and agree that neither Party shall acquire any interest in the other party’s Confidential Information, other than the right to utilize the Giving Key name, App and website during the term of this Agreement, and that the use or duplication of the Confidential Information in any other business would constitute an unfair method of competition. The Parties acknowledge and agree that the Confidential Information is proprietary to the owner thereof, may constitute trade secrets of the other Party, and is disclosed to solely on the condition that each Party agrees that such Party:
(a) shall not use the Confidential Information in any other business or capacity, or for the benefit of any other Person or entity;
(b) shall maintain the absolute confidentiality of the Confidential Information, and shall not disclose or divulge the Confidential Information to any unauthorized Person or entity, during and after the term of the License;
(c) shall not make unauthorized copies of any portion of the Confidential Information disclosed in printed, audio, or video form;
(d) shall adopt and implement reasonable procedures to prevent unauthorized use or disclosure of the Confidential Information, including, without limitation, restrictions on disclosure thereof to employees of the Licensee; and
(e) shall only disclose the Confidential Information in response to a judicial or administrative proceeding and only to the extent that Licensee is legally compelled to disclose such information, and only after Licensee has used its best efforts to provide the other Party with reasonable notice in order to allow that Party to seek an appropriate protective order or other satisfactory assurance regarding the confidential treatment of the information required to be so disclosed.
ARTICLE VI
DISCLAIMER OF WARRANTIES
6.1 THE PARTIES OFFER LICENSE TO USE THEIR RESPECTIVE PROPRIETARY MARKS “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO LICENSEE AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY OR THEIR RESPECTIVE EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SUCH PARTY’S OBLIGATIONS.
ARTICLE VII
LIMITATION OF LIABILITY
7.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GIVING KEY APP, WHETHER FORESEEABLE OR UNFORESEEALBE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES, INTERRUPTION IN USE OR AVAILABLITY OF DATA; STOPPAGE OR OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S TOTAL LIABLIITY TO LICENSSE OR ANY THIRD PARY ARISING OUT OR RELATED TO THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
ARTICLE VIII
TERMINATION
8.1 Termination. Either Party may terminate this Agreement with or without cause upon 60 day prior written notice.
8.2 Automatic Termination. This Agreement and all rights granted herein shall automatically terminate with notice if any of the following events occur with regard to either Party:
(a) the Party becomes insolvent;
(b) the Party gives oral or written notice of the Party’s intent to file a voluntary petition under any bankruptcy law;
(c) the Party’s assets are sold after being levied thereupon by sheriff, marshal or a constable; or
(d) the transfer of this Agreement, in whole or in part, is effected in any manner without the other Party’s prior written consent;
8.2 Optional Termination. This Agreement may be terminated, along with all rights granted herein, without affording the breaching party any opportunity to cure the breach, effective immediately upon delivery of a notice of termination citing any of the following events:
(a) the Party ceases to operate or forfeits the legal right to do or transact business;
(b) the Party (or any officer thereof) is convicted of a felony, a crime involving moral turpitude, or any other crime or offense that is reasonably likely to adversely affect either Party’s Proprietary Marks, or the goodwill associated therewith;
(c) the Party misuses or makes any unauthorized use of any of the Proprietary Marks or any other identifying characteristic of the other Party’s name or otherwise materially impairs the goodwill associated therewith, and cannot cure the default within 30 days; or
(d) the Party improperly discloses trade secrets or confidential information and cannot cure the default within 30 days.
ARTICLE IX
OBLIGATIONS UPON TERMINATION
9.1 Effect of Termination, Cancellation or Expiration of this Agreement. Except as otherwise authorized in writing, the Parties shall comply with the following provisions within 30 days after the expiration or termination of this Agreement:
(a) prompt payment of any and all sums owed to the Participating Charity. In the event of termination for any breach by the Charity, such sums shall include and offset for all damages, costs and expenses, including reasonable attorneys’ fees, incurred by Giving as a result of the breach, if any.
(b) upon termination, cancellation or expiration hereof for any reason, the Parties’ mutual licensee rights hereunder shall terminate. The Parties shall not thereafter use or adopt any trade secrets disclosed to the Parties hereunder or any emblems, signs, displays, or other property on which their respective Proprietary Marks are imprinted or otherwise form a part thereof or any confusing simulations thereof. The Participating Charity shall not otherwise use or duplicate the Giving Key App or the Giving name or any portion thereof, nor assist others to do so.
(c) upon termination, cancellation or expiration of this Agreement, Licensee shall cease to hold Licensee out in any way as a licensee of the Giving Key App or Giving name or to do anything which would indicate any relationship between Licensee and Giving.
(d) the covenants set forth in this Subsection shall survive the termination, cancellation or expiration of this Agreement; and
(e) all rights, claims and indebtedness which may accrue to the Participating Charity prior to termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration.
ARTICLE X
NO AGENCY
10.1 Not Agents. It is understood and agreed that this Agreement does not create a fiduciary relationship between the Parties, and that nothing herein contained shall constitute the Participating Charity as the agent, legal representative, partner, joint venturer or employee of Giving, or vice versa. The Parties are, and shall remain, independent parties responsible for all obligations and liabilities of, and for all loss or damage to, the other Party as a result of its own operations.
10.2 No Joint Marketing. It is understood and agreed that this Agreement should not be construed as any type of joint marketing between Giving and Participating Charity. In fact, Participating Charity is not and will not be participating or involved with any type of marketing by Giving or Giving’s agents.
ARTICLE XI
INTELLECTUAL PROPERTY
11.1 “Intellectual Property” means all of the following owned by either Party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” The Participating Charity expressly agrees that Giving owns all rights, title and interest to the Giving Key App and has the Intellectual Property Rights to the Giving Key App and the marketing and business plan of the App. Other than the express licenses granted by this Agreement, the Parties grants no right or license to each other by implication, estoppel or otherwise. Each Party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
12.1 Participating Charity represents and warrants to Giving as follows:
(a) Participating Charity has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Participating Charity in accordance with its terms and no provision requiring Participating Charity’s performance is in conflict with obligations under any charter or any other agreement (of whatever form or subject) to which Participating Charity is a party or by which it is bound.
(b) Participating Charity is duly organized, authorized and in good standing under the law of the state of its organization, and is duly authorized to do business in all other states in which Participating Charity’s operations make such authorization necessary or required.
(c) Except as otherwise disclosed in writing by Participating Charity on or before the effective date of this Agreement, neither Participating Charity nor any of its principal officers and directors have been subject to any (i) criminal conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal Revenue Service liens: (iv) federal or state regulatory administrative or enforcement proceedings; or (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices.
ARTICLE XIII
MISCELLANEOUS
13.1 Notices. All notices required under the terms and provisions hereof shall be in writing, and any such notice shall become effective on the business day when delivered by overnight courier or messenger, or on the business day when received in U.S. Mail service. Any such notice shall be addressed as follows:
if to Licensor: Giving Key, LLC
c/o Russell Brewer
12001 North Central Expressway, Suite 1050
Dallas, Texas 75243
With a courtesy copy by email to: russell@givingkey.io
if to Licensee: Licensee’s registered agent.
13.4 Licensee’s registered agent. Variances to Other Licensees. The Participating Charity understands that other licensees may operate under different forms of agreements with Giving and, consequently, that Giving’s rights and obligations with regard to such other charities may differ materially in certain circumstances.
13.5 Binding Effect. This Agreement shall be binding upon the parties, their heirs, executors, personal representatives, successors or assigns.
13.6 Complete Agreement. This Agreement supersedes any and all other agreements or representations respecting the terms, conditions and obligations of the Parties with respect to the grant of mutual licenses as set forth in this Agreement.
13.7 Invalidity. If any part of this Agreement for any reason shall be declared invalid, such decision shall not affect the validity of any remaining portion, which shall remain in full force and effect. In the event any material provision of this Agreement shall be stricken or declared invalid, Giving reserves the right to terminate this Agreement.
14.8 Governing Law/Waiver of Jury. The terms and provisions of this Agreement shall be interpreted in accordance with and governed by the laws of the State of Texas. The Participating Charity agrees that it will submit to jurisdiction of the same federal judicial district where the corporate headquarters of Giving are located and within any and all other courts, whether federal, state, or local, located within that district [Dallas County, Texas]. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS AND THE PARTIES AGREE THAT THE STATE AND FEDERAL COURTS SITUATED IN DALLAS COUNTY, TEXAS SHALL HAVE FINAL JURISDICTION AND VENUE OVER ANY DISPUTES ARISING HEREUNDER. THE PARTIES FURHER WAIVE ANY RIGHT TO A JURY TRIAL CONCERNING THIS AGREEMENT OR THE DUTIES AND OBLIGATIONS GOVERNED BY THIS AGREEMENT AND THE PARTIES LICENSE OF THE GIVING KEY APP.
14.9 Consultation with Counsel. The Participating Charity hereby represents that it has received a copy of this Agreement and has had an opportunity to consult with its attorney prior to executing same.
14.10 Injunctive Relief. The Participating Charity acknowledges that Giving’s legal remedy for any breach of any of the Participating Charity’s covenants under this Agreement would not constitute an adequate remedy at law and, therefore, Giving shall have the right to obtain temporary and permanent injunctive relief in any proceeding brought to enforce any of those provisions, without the necessity of proof of actual damages.
13.11 Headings. The headings used in this Agreement appear strictly for the Parties’ convenience in identifying the provisions of this Agreement and shall not affect the construction or interpretation of the provisions of this Agreement.
14.12 Waiver. No waiver by Giving of any breach or series of breaches of this Agreement shall constitute a waiver of any subsequent breach or waiver of the terms of this Agreement.
This Agreement is valid and effective as of the date the Participating Charity agreed to and acknowledged the terms of this Participating Charity License Agreement by checking the box on the Giving Key app application page.