GIV360 PROGRAM
PARTICIPATION AGREEMENT -- TERMS OF USE
GIV360 TECHNOLOGIES, LLC
IMPORTANT, PLEASE READ THIS PARTICIPATION AGREEMENT – TERMS OF USE (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT AMONG THE ORGANIZATION PARTICIPATING IN THE GIV360 PROGRAM (THE “ORGANIZATION”), CARD HOLDERS (EACH A "USER"), THE PARTICIPATING MERCHANTS (EACH A “MERCHANT”, COLLECTIVELY “MERCHANTS.” ), AND GIV360 TECHNOLOGIES, LLC. WITH OFFICES AT 2299 PERIMETER PARK DRIVE, STE 110, ATLANTA, GA 30341, (“WE”, “OUR” OR “US”), THE ORGANIZATION, EACH USER, AND EACH MERCHANT MAY SOMETIME BE COLLECTIVELY REFERRED TO AS “YOU” OR “YOUR”). THIS AGREEMENT DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS AND USE OF WEB SERVICES DELIVERED VIA THE GIV360.COM WEBSITE (THE “SITE”) AND YOUR PARTICIPATION IN THE GIV360 COMMUNITY PROGRAM (THE "PROGRAM”). CAREFULLY READ ALL OF THE APPLICABLE TERMS AND CONDITIONS AS SET OUT BELOW.
THE AGREEMENT APPLIES WHENEVER YOU ACCESS OR USE THE SITE OR PARTICIPATE IN OR USE THE PROGRAM. IN THIS CASE, YOU UNDERSTAND AND AGREE THAT WE WILL TREAT YOUR USE OF THE SITE OR PARTICIPATION IN OR USE OF THE PROGRAM AS ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, PLEASE CEASE ANY FURTHER ACCESS OR USE OF THE SITE OR PARTICIPATION OR USE OF THE PROGRAM IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY THE AGREEMENT AT ANY TIME AND WILL POST ANY CHANGED AGREEMENT TO THE SITE. YOU ARE ENCOURAGED TO CHECK THIS AGREEMENT EACH TIME YOU VISIT THE SITE OR PARTICIPATE OR USE THE PROGRAM. YOUR CONTINUED USE OF THE SITE OR PARTICIPATION OR USE OF THE PROGRAM INDICATES YOU AGREE TO THE TERMS OF THE MOST CURRENT VERSION OF THIS AGREEMENT POSTED ON THE SITE.
1.
THE PROGRAM; LICENSE TO USE SITE AND SUBSCRIPTION TERMS.
a.
Description of Program. The Program is designed to help Organizations improve their fundraising campaigns. The Program is directed at incentivizing Users wishing to support an Organization to use Merchants in the User’s local area to help the Organization improve its fund raising and help the Merchant improve its revenue generation and help Organizations and Merchants create deeper roots with the local community and economy. The Program allows Organizations to improve the efficiency and effectiveness of fundraising efforts by pairing them with Merchants who will donate up to 5% of their total transactions from patrons participating in the Program to the Organization on a monthly basis.
b.
License to Use Site.The Site provides information about the Program and other services available relating to the Program. We grant You a limited, non-transferable license to use this Site solely for the purpose of participating in the Program, subject to and in accordance with the terms and conditions of this Agreement. You agree not use the Site or the Program in connection with any prohibited uses described in Section 9 below, as not contemplated hereby, or in any other manner that violates the Agreement or applicable laws, rules, orders or regulations.
2.
THE DUTIES AND OBLIGATIONS OF EACH PARTICIPANT OF THE PROGRAM.
a.
User’s Duties and Obligations.
i.
Each User must register at least one valid Visa®, MasterCard®, American Express® or Discover® payment card. The term “payment card” includes credit cards, debit cards and other pre-paid payment cards, such as gift or rewards cards. We refer to the payment card(s) that you register with us as “Registered Cards”.
ii.
Each User acknowledges and agrees that it is in the Merchant’s sole discretion whether to allow such User to combine the use of the Program with any other offers, discounts, specials or programs offered by the Merchant.
iii.
Each User acknowledges and agrees that the maximum Donation (as defined below) is capped at ONE HUNDRED DOLLARS ($100.00) per transaction, which may be increased or decreased from time to time, in our sole discretion.
b.
Merchant’s Duties and Obligations.
i.
Subject to the Donation Cap described below, Merchant agrees to donate up to 5% of all amounts processed on a Registered Card from any single transaction with a User (the “Donation”) to the Organization currently designated by a User in his or her Program account profile and jointly supported by the Merchant. If a User designates more than one Organization in its Program account profile, then the Donation will be apportioned among all Organizations designated on the User’s Program account profile. The maximum Donation is capped at ONE HUNDRED DOLLARS ($100.00) per single transaction with a Merchant using a Registered Card, which may be increased or decreased from time to time in our sole discretion (the “Donation Cap”). One point-of-sale payment transaction using a Registered Card that results in one receipt from the Merchant constitutes a single transaction for purposes of the term “single transaction” as that term is used in this Agreement. The following are examples of how the Donations are calculated: Example #1: if a User has designated one Organization in his or her Program account profile and the User spends $1,000 at a Merchant’s location in a single transaction using a Registered Card, then $50 will be donated to the Organization designated in the User’s Program account profile. Example #2: If a User has designated one Organization in his or her Program account profile and the User spends $3,000 at a Merchant’s location in a single transaction using a Registered Card, then the maximum of $100 will be donated to the Organization designated in the User’s Program account profile. Example #3: If a User has designated three Organization’s in his or her Program account profile and the User spends a total of $900 at a Merchant’s location in a single transaction using a Registered Card, then there will be a total $45 Donation apportioned $15 to each of the three Organizations designated in the User’s account profile.
ii.
Each Merchant is responsible for validating the total dollar volume of applicable transactions for each month by accessing a Donation report through our Merchant online portal located at the Site that is available any time to each Merchant (the “Donation Report”). If a Merchant chooses to dispute any of the Donation transactions contained therein, they should do so by promptly sending a written notice of such dispute to the Organization corresponding to the dispute and copying us on such written notice.
iii.
Merchant agrees that the Program will automatically enroll Merchant to support all Organizations that join the Program, but if the Merchant wishes to stop supporting a particular Organization at any time, they may do so by modifying their Merchant Program account profile through our Merchant online portal located at the Site.
iv.
On or before the last day of each calendar month immediately following the month of accumulated Donations, the Monthly Donation payments will be automatically debited by ACH transfer from the Merchant’s account designated in the Merchant’s Program account profile. The Donation payment amounts will then be deposited by us to the corresponding Organization by ACH transfer into the bank account designated in each Organization’s Program account profile.
v.
Any Merchant desiring to cease participation in the Program must give us at least THIRTY- DAY (30) days prior written notice of such termination (“Notice of Termination”). Notwithstanding the immediately preceding sentence, if we increase the Donation Cap and Merchant desires to cease participation in the Program as a result of such Donation Cap increase, then Merchant may provide Notice of Termination to us which notice shall state that the Donation Cap Increase is the reason for such Notice of Termination in which event Merchant will be removed from the Program upon our receipt of such Notice of Termination. In the event of termination one final ACH transfer of any outstanding accumulated Donations up until the point of termination will still be debited at the regularly scheduled time.
vi.
Merchant has the right to refuse any User transaction that it believes in good faith is unauthorized, suspicious, or illegal.
c.
Organization’s Duties and Obligations.
i.
We will use commercially reasonable efforts to collect the Donations that are owed to the Organization using ACH transfer from the Merchant’s bank account designated in its Program account profile and transfer such Donations to the Organization’s bank account designated in the Organization’s Program account profile. However, if a Donation cannot be successfully collected through ACH transfer as described herein, then as between us and the Organization it shall be the Organization’s responsibility to collect from the applicable Merchant the Donations indicated in a Final Monthly Report. In addition, Organization shall agree to hold harmless, indemnify and defend us from any and all claims and liabilities arising from such cases in accordance with section 7b.
ii.
Each Organization is responsible for contacting the applicable Merchant regarding any Donations that are due and not received.
iii.
Each Organization agrees to use their best efforts to resolve any objections or disputes relating to a Donation with each respective Merchant.
iv.
We shall be due a flat 20% transaction fee of all Donation amounts due to them (the “Transaction Fee”). This Transaction Fee will be deducted before any deposits are made to the Organization’s bank account designated in its Program account profile.
v.
Each Organization is responsible for how it uses the proceeds from the Donations and for any related tax issues or reporting requirements.
vi.
Each Organization agrees to exclusively use our technology and services, including the Site, to maintain and implement the Program.
vii.
Each Organization is responsible for how it uses the proceeds from the Donations and any related tax issues or reporting requirements.
viii.
Any Organization desiring to cease participation in the Program must give us at least THIRTY (30) days prior written notice of such termination (“Notice of Termination”). In the event of termination one final ACH transfer of any outstanding accumulated Donations up until the point of termination (minus the associated Transaction Fee) will still be credited at the regularly scheduled time.
d.
Our Duties and Obligations.
i.
We have the right to select Merchants, at our discretion, to participate in the Program.
ii.
You acknowledge and agree that we have the sole authority to administer and manage the Program in our sole discretion. We will use our good faith efforts to provide promotional, marketing and technical support for the Program.
iii.
The portions of our Site where the Organization account profile, the Merchant account profile and the User account profile are maintained shall require login credentials (username and password). We will make commercially reasonable efforts to protect such login credentials from disclosure to third parties.
iv.
We shall adhere to our obligations in our privacy policy posted on the Site.
3.
INTELLECTUAL PROPERTY; COPYRIGHT AND TRADEMARKS.
a.
Use of Intellectual Property. You hereby grant us permission to use your name and logo (on the Site and in our promotional materials) for the purpose of publicly acknowledging your participation in the Program. We acknowledge and agree that you own all right, title and interest in your name and logo.
b.
Ownership of Intellectual Property.You acknowledge that we own all right, title and interest, including all patent rights, copyright rights, trademark rights, trade secret rights, and other intellectual property rights, in and to the Program, including, without limitation, all data, including but not limited to, transactional data, sales data, and usage data, generated and gathered from the Program which may be used and publicly published by us without written consent from you. You acknowledge that you have no rights in or to the Program other than as expressly granted by this Agreement.
c.
Copyright and Trademarks.The information available on or through this Site, along with all graphics, images, text, information, sounds and other content (collectively “Content”) is the sole property of us or our licensors, and is protected by copyright, trademark, service mark and other intellectual property rights. In some circumstances, third parties may post Content which is solely owned or licensed by them. You may not modify, copy, distribute, transmit, display, publish, sell, license, create derivative works or otherwise use any Content available on or through this Site for commercial or public purposes. Your internal reproduction of the Site is permitted only to the extent necessary to accomplish the purposes of this Agreement. Permission is granted to you by us to electronically copy and print hard copies of pages from the Site solely for your internal, personal use to accomplish the purposes of this Agreement, and any such copies must bear the copyright notice included on each page. We may, in our sole discretion, block access to the Site, and disable and terminate your access if we reasonably believe that you are in breach of this Agreement.
4.
LINKS TO THIRD PARTY SITES.The Site may contain links that will let you access other websites, including, but not limited to, sites of third party services providers or vendors (“Service Providers”). The links are only provided as a convenience and we do not endorse any of these sites or the content, advertising, products and services available on or through such sites. We assume no responsibility or liability for any material that may be accessed on other websites, even if reached through this Site, nor do we make any representation regarding the quality of any product or service available on or through any such site or from such Service Providers.
5.
LINKS FROM THIRD PARTY SITES.We prohibit the unauthorized deep linking to the Site and the framing of any information contained on the Site or any portion of the Site. We reserve the right to disable any unauthorized links or frames. We have no responsibility or liability for any material on other websites that may contain links to this Site.
6.
DISCLAIMERS OF WARRANTIES. WE DO NOT INDEPENDENTLY REVIEW, INVESTIGATE OR VERIFY INFORMATION PROVIDED BY ORGANIZATIONS, USERS, MERCHANTS, DONORS, BENEFICIARIES, SERVICE PROVIDERS OR OTHERS. WE DO NOT ACT AS YOUR AGENT OR PROVIDE ADVICE OR GUARANTEE RESULTS INCLUDING, BUT NOT LIMITED, TO THE TOTAL AMOUNT OF DONATIONS FOR ORGANIZATIONS OR THE TOTAL AMOUNT OF MERCHANT TRANSACTIONS FROM USERS. YOUR USE OF THE SITE IS AT YOUR OWN RISK. INFORMATION PROVIDED BY US, WHETHER ORIGINAL TO US OR FROM THIRD PARTIES, IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION ON THIS SITE OR THE QUALITY OR TIMELINESS OF INFORMATION AND SERVICES PROVIDED. WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR FREE, SECURE (EXCEPT AS OTHERWISE PROVIDED IN SECTION 2(d)(iii) ABOVE), FREE OF VIRUSES OR OTHER HARMFUL MATERIALS.
7.
LIMITATION OF LIABILITY; INDEMNITY.
a.
Limitation of Liability.UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SUBCONTRACTORS, ADVISORS, AGENTS, OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES") (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY AND PROPERTY DAMAGE) ARISING OUT OF OR RELATED TO THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE RELEASED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE OR PARTICIPATION IN THE PROGRAM (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE DONATIONS PROVIDED BY OR TO YOU, IF ANY, FOR PARTICIPATING IN THE PROGRAM DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM. SOME JURISDICTIONS RESTRICT OR PROHIBIT LIMITATIONS OF LIABILITY, IN WHICH CASE THE FOREGOING PROVISIONS MAY NOT APPLY TO YOU.
b.
Indemnity.YOU AGREE TO HOLD HARMLESS, INDEMNIFY AND DEFEND THE RELEASED PARTIES FROM ANY AND ALL THIRD PARTY CLAIMS, LOSSES, DAMAGES AND LIABILITIES ARISING OUT OF YOUR USE OR MISUSE OF THE SITE AND/OR THE PROGRAM, OR YOUR VIOLATION OF THIS AGREEMENT OR ANY LAWS OR REGULATIONS. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Released Parties, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
c.
Warranty Disclaimer; Sole Remedy..WE DO NOT WARRANT THAT OPERATION OF THE SITE OR PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE. IN THE EVENT OF A BREACH OF THIS AGREEMENT BY US, OUR SOLE OBLIGATION, AND, UNLESS AS OTHERWISE PROVIDED HEREIN, YOUR SOLE AND EXCLUSIVE REMEDY, FOR SUCH BREACH SHALL BE THAT WE SHALL MAKE ALL COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY CORRECT THE NON-CONFORMING SITE WITHOUT CHARGE AND WE WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED ON THE SITE.
8.
TRANSMISSION OF DATA; DATA SECURITY.
a.
Transmission of Data.You acknowledge and agree that any information and data submitted to the Site becomes our property, subject to any applicable laws regarding the protection of your personally identifiable and financial information. You expressly authorize the transfer of your data (other than personal financial data) to Organizations, Users, Merchants, donors, beneficiaries and other parties whom you request to receive your personal data through the functionality provided on the Site.
b.
Data Security.We will use commercially reasonable efforts to protect the security of your data submitted on or through the Site. However, the security of information transmitted through the Internet can never be guaranteed. We are not responsible for any interception of any communications through the Internet or Site or for changes to or losses of data.
9.
PROHIBITED USES.You agree You will not directly or indirectly: interfere with or compromise the operation of the Site or intercept, redirect or interfere with messages or data intended for transfer to other parties; access without authorization any computers, accounts or networks or penetrate any security features; interfere with the operation of this Site; transmit or distribute destructive information, such as a virus, or engage in mail bombings or distributed denial of service attacks; or tamper with any Content contained on or through the Site. You will not use any robot, spider or other automatic device or program to monitor or copy any of the data or content on this Site, or otherwise transfer any Site data or content for mass distribution or use in any commercial manner. You are not allowed to utilize a work around of any technical limitations in the Site, use any tool to enable features or functionalities that are otherwise disabled in the Site, or decompile, disassemble, or otherwise reverse engineer the Site except as otherwise permitted by applicable law. You are also not allowed to perform or attempt to perform any actions that would interfere with the proper working of the Site, prevent access to or the use of the Site by Our other licensees or customers, or impose an unreasonable or disproportionately large load on Our infrastructure. You may not copy the Site, or any information contained therein, except for reasonable and customary archival or backup purposes. You may not sublicense, assign, or transfer the license granted under this Agreement, the Site, or any output produced by the Site to any third party. You may not translate, decompile, disassemble, or otherwise reverse engineer, or otherwise determine or attempt to determine source code or protocols from, the executable code of the Site, or create any derivative works based upon the Site, and agrees not to permit or authorize anyone else to do so. You also agree that any such works are derivative works and as such are Our sole and exclusive property or Our licensor, if applicable. IF YOU BELIEVE ANYONE HAS VIOLATED THIS AGREEMENT, PLEASE CONTACT US AT THE ADDRESS AT THE TOP OF THE AGREEMENT. WE RESERVE THE RIGHT TO REVIEW AND TERMINATE ANY USER’S ACCESS TO THE SITE.
10.
SITE AND SERVICES AVAILABILITY.Our objective is to make the Site accessible twenty-four (24) hours per day, seven (7) days per week. However, we may interrupt, limit or suspend the Site operations at any time for purposes such as performing maintenance, addressing technical problems, conducting audits, and complying with applicable laws. We will make reasonable efforts to post notices on the Site in advance of material changes to the Site or the Program.
11.
TERMINATION OF ACCESS; REMEDIES.In order to enforce this Agreement, such as in the event of any breach or threatened breach, We may suspend and/or terminate Your access to and use of the Site and/or the Program without notice. You understand and agree that We shall be entitled to receive preliminary injunctive relief without the necessity of posting bond, along with other equitable and legal remedies against You, with respect to its enforcement of this Agreement. If We or Our affiliates take any legal action against You to enforce this Agreement, You will promptly reimburse Our reasonable attorneys’ fees and costs incurred.
12.
REPRESENTATIONS AND WARRANTIES.
a.
Cooperation with Marketing Program. You agree to use Your best efforts to cooperate with Us to implement, promote, and market the Program. You further agree to not act in any manner which would reasonably be construed to be harmful, or potentially harmful, to the business interests or reputation of Us or the Program.
b.
Authority.You represent and warrant that You have (i) full power and authority to enter into this Agreement and (ii) obtained the necessary consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing of any federal, state or local governmental authority in connection with Your participation in the Program and execution of this Agreement. We are not required to accept any transactions from Users who are less than eighteen (18) years of age.
c.
No Guarantee of Compliance with Laws. We cannot guarantee that Your use of the Site or the Program complies with laws of Your jurisdiction. You are solely responsible for complying with all local, state, and federal laws pertaining to the use of the Site or the Program, and You agree to hold Us harmless from Your violation of any such laws. You also agree that at all times You shall comply with all applicable laws, statutes, ordinances, rules and regulations of all governmental authorities, and shall obtain, and shall ensure that all of Your employees and agents obtain, all licenses and permits necessary for participation in the Program.
d.
Changes to Site and Program.We are constantly improving the Site and the Program in order to provide the best possible experience for the Organization, Users and Merchants. You acknowledge and agree that the form and nature of the Site and Program may change from time to time without prior notice to You.
e.
Assumption of Risk for Use of Site and Program.The Content is provided "AS IS", without any liability to You, including, without limitation, no liability for consequential or special damages or lost profits for sequence, accuracy or completeness of the Content or any data derived there from.
f.
Expenses Related to Program.You shall be responsible for payment of all of Your own expenses relating to the Program, including, but not limited to, marketing, administrative, and other promotional costs.
g.
Taxes.You shall be responsible for and shall pay when due all wages and taxes, including, without limitation, federal, state and local taxes, social security, withholding, unemployment compensation taxes, sales, income, ad valorem taxes on Your equipment and other personal property, and any other taxes and license fees imposed upon You and Your business.
13.
CONFIDENTIALITY; NON-SOLICITATION; NON-EXCLUSIVITY.
a.
Confidentiality.You shall protect and keep confidential all non-public information disclosed by Us (“Confidential Information”), and shall not, except as may be authorized by Us in writing, use or disclose any such Confidential Information during the term of this Agreement and for a period of two (2) years following the termination of this Agreement. You further agree that at no time will it divulge, furnish or make accessible to anyone or appropriate for Your own use any of Our “Trade Secrets”, as that term is generally understood or defined under the laws of the State of Georgia. For purposes of this Agreement, all information related to Our computer systems, marketing, sales, customers, promotion, format, strategic plans, and other information relating to the operation of the Program prior to the date hereof or the operation of the Program after the date hereof, which is not generally known to or readily ascertainable by the public, whether in oral, written, graphic or machine readable form shall be considered Confidential Information. Upon termination or expiration of this Agreement, You shall return to Us all written materials which contain any Confidential Information. The provisions contained in this section shall survive the termination of this Agreement.
b.
No Solicitation of Business Alliances.You agree that, both during the term of the Agreement and for a period of two (2) years following the termination of this Agreement at any time and for any reason, You will not directly or indirectly, solicit, for the purpose of engaging in services or programs similar to the Program, the business of any entity with whom We have established a business alliance or relationship, provided that the restrictions of this paragraph shall only apply to the solicitation of business from entities that are also participants of the Program.
c.
Non-Exclusivity.You agree not to object, and We shall have the right, to offer the Program to other parties. You further acknowledge and agree not to object, and Merchant shall have the right, to participate in the Program with other organizations.
d.
No Joint Venture; Independent Contractor.This Agreement is not intended to create, and does not create, any partnership, joint venture, agency, fiduciary, employment, or other relationship between any parties hereto, beyond the relationship of independent parties to a commercial contract. No party is, nor will it hold itself out to be, vested with any authority to bind any other party contractually, or to act on behalf of any other party as a broker, agent, or otherwise. Each party acknowledges and agrees that its respective employees and any permitted independent contractors are not eligible for any other party’s employee benefits, including, but not limited to: holiday, vacation or sick pay, social security, Medicare, unemployment or disability insurance, workman’s compensation, health and welfare benefits, profit sharing, pension, 401(k), or any employee stock option or stock purchase plans (collectively, “Employee Benefits”). Each party hereto shall be responsible for and pay and discharge any and all obligations to federal, state or local governments for income or earnings taxes, social security contributions, unemployment compensation contributions or any other similar obligations (including withholding taxes) arising out of their activities under this Agreement. Each party hereto will indemnify, hold harmless and defend any other party, its parents, subsidiaries, affiliates, and its or their officers, directors, employees, agents, successors and assigns (collectively, “Indemnified Parties”) from any and all liabilities, actions, charges, claims, demands, obligations, or expenses, including, but not limited to, attorneys’ fees, arising out of or related to any work performed pursuant to this Agreement or for the relationship established pursuant to this Agreement between any party hereto, including, but not limited to, any claim of joint employment; benefits under any employee benefit plan of any party hereto or its affiliates; discrimination of any kind under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, The Americans With Disabilities Act, the Older Workers Benefit Protection Act, and the Age Discrimination in Employment Act; retaliation; violation of the Fair Labor Standards Act; workers’ compensation claims; violation of any Internal Revenue Service rule or regulation pertaining to withholding or payroll taxes; or violation of the Family and Medical Leave Act. Each party hereto, on behalf of its respective employees and any permitted independent contractors, hereby waives any and all rights to look to any other party hereto for any Employee Benefits, even if an employee or permitted independent contractor is later held by a court of competent jurisdiction to be a common-law employee of such party.
14.
RIGHT TO EQUITABLE REMEDY.You acknowledge and agree that the restrictions contained in this Agreement are necessary to prevent the use and disclosure of Confidential Information and to protect our other legitimate business interests. You acknowledge that all of the restrictions in this Agreement are reasonable in all respects, including duration, territory and scope of activity. You further agree that irreparable damage for which money damages would not be an adequate remedy would occur in the event that any of the provision of this Agreement were not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that, in addition to any other remedies a party may have at law or equity, the parties shall be entitled to seek an injunction of injunctions to prevent such breached of this Agreement and to enforce specifically the terms hereof.
15.
GOVERNING LAW.This Agreement shall be governed in all respects by the laws of the State of Georgia, without regard to any provisions thereof relating to conflicts of laws among different jurisdictions. The representations and warranties made herein shall survive the termination of this Agreement. Accordingly, You understand and agree that all proceedings relating to this Site and the subject matter contained herein, and the Program shall be maintained exclusively in the state or federal courts sitting in Atlanta, Georgia.YOU AGREE THAT NO CLASS ACTION SHALL BE INITIATED OR MAINTAINED AGAINST ANY RELEASED PARTIES. THE PREVAILING PARTY SHALL BE ENTITLED TO REIMBURSEMENT OF REASONABLE ATTORNEYS FEES AND EXPENSES.
16.
ASSIGNMENT.You are not allowed to assign this Agreement (or any rights contained herein) without our prior written consent, which may be granted or withheld at our sole discretion. We may freely assign this Agreement and delegate the rights and duties contained herein. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. This Agreement shall not be construed so as to confer any right or benefit on any party not a party hereto, other than their respective successors, assigns, heirs, executors and administrators.
17.
ENTIRE AGREEMENT.This Agreement and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof and supersede all prior agreements and understandings relating thereto. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought.
18.
NO WAIVER.No delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of the other party under this Agreement shall impair any such right, power or remedy of such first party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any holder of any breach or default under this Agreement, or any waiver on the part of any holder of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing or as provided in this Agreement.
19.
FORCE MAJEURE.No party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.
20.
HEADINGS.The headings of any paragraphs in this Agreement are for reference only and shall not be used in construing the terms of this Agreement.
21.
SEVERABILITY.In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party.