Terms & Conditions (“T&C”) posted here represent general T&C for clients/users/Customers of CrowdChange. In the event that the T&C attached to a specific client signed Standard License Agreement (SLA) differs from these posted T&C, the version attached to the client SLA shall take precedence solely for said client/users/Customers.
STANDARD TERMS AND CONDITIONS
Preamble
These Standard Terms and Conditions (“Agreement”) govern the provision and use of the CrowdChange white label fundraising platform (“White Label Program”) provided by CrowdChange Inc. (“CrowdChange”) to the customer identified in an applicable License Agreement (“Customer”), as well as to any Authorized User and End User as defined in this Agreement. By accessing or using the White Label Program, Customer, Authorized Users and End Users agree to be bound by the provisions of this Agreement applicable to them.
Section 1 Description of White Label Program
1.1 CrowdChange shall use commercially reasonable efforts to provide the White Label Program to Customer in accordance with this Agreement. Customer acknowledges and agrees that the White Label Program may not be available or functionality of the White Label Program may be materially reduced during and as a result of (a) downtime due to CrowdChange’s performance of upgrades or maintenance of the White Label Program or a Force Majeure Event, (b) Customer’s misuse of White Label Program or (c) any circumstances that are beyond CrowdChange’s reasonable control, including but not limited to, Customer’s use of Non-CrowdChange Products and Services.
1.2 CrowdChange reserves the right, in its sole discretion, to make any changes to the White Label Program that it deems necessary or useful to (a) maintain and enhance the quality, delivery, performance or cost efficiency of the White Label Program, or (b) to comply with any applicable laws and regulations (“Maintenance Changes”). CrowdChange agrees that there shall be no cost associated with these Maintenance Changes unless they are required as a result of Customer negligence. Customer agrees that CrowdChange may utilize information concerning Customer’s use of the White Label Program in accordance with Section 2.5 to improve CrowdChange products and services and to provide Customer with reports on its use of the White Label Program.
Section 2 Proprietary Rights and License
2.1 Conditioned upon Customer’s continued compliance with this Agreement and Customer’s on-time payment of all then-due amounts to CrowdChange, Customer is granted a limited, non-exclusive, revocable and non-transferable right, solely to use and permit its Authorized Users to access and use the White Label Program during the Term of this Agreement for the purposes of allowing End Users to access and use the White Label Program and allowing Authorized Users to create and conduct activities on behalf of or in support of Customer or its chapters.
2.2 The White Label Program shall be branded under Customer’s name and shall be accessible to the public under a URL designated by Customer. Except as a reference to the fact that the Customer web site is “Powered by CrowdChange,” or as otherwise permitted pursuant to Section 2.4, the name and logo(s) of CrowdChange shall not appear on the White Label Program and Customer shall have no right to use CrowdChange’s name, logo or other Proprietary Rights unless mutually agreed in writing by the parties. Additionally, except as expressly provided herein, Customer shall not disclose or imply to any third party in any fashion that CrowdChange sponsors, organizes, operates, endorses, guarantees or is otherwise responsible for any event, fundraiser, campaign, auction, or other activity offered by or on behalf of Customer or its Authorized Users through the White Label Program. Customer acknowledges that CrowdChange provides the technology platform only and is not responsible for any event, fundraiser, campaign, auction, or other activity, and CrowdChange shall have no responsibility or liability for the conduct, cancellation, postponement, fulfillment or outcome thereof.
2.3 CrowdChange and its licensors own all right, title and interest in and to the White Label Program (including the CrowdChange Materials), and any improvements, design contributions or derivative works thereto, and all Proprietary Rights in the same. Except for the limited rights expressly granted herein, this Agreement does not transfer from CrowdChange any Proprietary Rights or interest in the White Label Program (including the CrowdChange Materials) to Customer. All rights not expressly granted to Customer in this Agreement are expressly reserved by CrowdChange and its licensors.
2.4 Neither party will distribute or publish any name, trademark, trade name, logo or other intellectual property rights of the other party without prior express written consent of the other Party; provided, however, that, subject to Section 2.2, the parties may, with such written consent, display the other party’s name and logo on their websites and promotional materials to identify the working relationship and promote their services, provided that such use does not imply any sponsorship, endorsement or relationship beyond the actual relationship between the parties.
2.5 Except as expressly set forth in this Agreement, Customer owns all right, title and interest in and to its Customer Data and CrowdChange does not acquire any right, title or interest in or to the Customer Data. Customer hereby grants CrowdChange the worldwide, royalty-free license to (i) host, copy, transmit and display the Customer Data as necessary for CrowdChange to provide the White Label Program and Support in accordance with this Agreement, and (ii) create and use data derived from Customer Data that has been aggregated and/or anonymized so that it does not identify Customer, any Authorized User, End User, donor or participant or other individual, for analytics, benchmarking, reporting, improving and developing CrowdChange’s products and services. Customer represents and warrants that it will take all reasonable steps to obtain and maintain all necessary consents, rights, approvals, and waivers to permit it to provide CrowdChange with the rights to the Customer Data described herein.
2.6. To the fullest extent permitted by applicable law, each Authorized User and End User hereby irrevocably assigns to Customer all right, title and interest that such Authorized User or End User owns or controls in any content or materials that it submits, uploads, posts or otherwise makes available through the White Label Program (“User Content”). To the extent that any such rights cannot be assigned, such Authorized User or End User grants Customer a perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable license to use, host, store, reproduce, modify, adapt, translate, publish, post, distribute and otherwise use the User Content for any lawful purpose, including as reasonably necessary to provide, operate and support the White Label Program and applicable events or activities, and to authorize service providers acting on Customer’s behalf to do the same. User Content shall constitute Customer Data and shall be subject to the license granted by Customer to CrowdChange under Section 2.5. Each Authorized User and End User represents and warrants that it owns or has obtained all rights, permissions and consents necessary to submit User Content and grant the foregoing rights, and that User Content does not violate applicable law or infringe or misappropriate any third-party right.
Section 3 Third Party Websites, Products and Services
3.1 Unless otherwise agreed between the parties, CrowdChange shall have no liability or obligations (including any warranty or support obligations) with respect to any Non-CrowdChange Products and Services. “Non-CrowdChange Products and Services” means any third-party websites, applications, software, tools, plugins, payment processors, or services that are not provided or controlled by CrowdChange, even if they interoperate or are used in connection with the White Label Program.
Section 4 Restrictions on Customer
4.1 Customer shall ensure it and its Authorized Users comply with the terms of this Agreement, and Customer shall be responsible for contractually flowing down this Agreement to all of its Authorized Users. Customer is responsible for the actions and omissions of its Authorized Users and any other person or entity to which Customer allows access to the White Label Program, knowingly or unknowingly.
4.2 Customer shall not sublicense, license, sell, lease, rent or otherwise make the White Label Program available to third parties (other than Authorized Users and End Users, and solely as permitted by this Agreement). Customer shall promptly remove the access rights, and revoke the Access Credentials, of any Authorized User that no longer requires or is no longer permitted access to the White Label Program. If the security or confidentiality of any Access Credentials is in any way compromised, Customer shall report such compromise to CrowdChange immediately.
4.3 Customer shall not, and shall ensure that its Authorized Users do not, and each Authorized User and End User shall not: (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the White Label Program; (b) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt the CrowdChange software or CrowdChange systems used to host the White Label Program, or other equipment or networks connected to the White Label Program; (e) use the White Label Program in the operation of a service bureau, outsourcing or time-sharing service; (f) circumvent or disclose the user authentication or security of the White Label Program or any host, network, or account related thereto; (g) use the White Label Program for the purpose of building a competitive product or service or copying its features or user interface; (h) permit access to the White Label Program by a competitor of CrowdChange; (i) use the White Label Program to transmit any code, files, scripts, agents or programs intended to do harm, for example, viruses, worms, time bombs and Trojan horses, or (j) make any use of the White Label Program that violates any applicable local, state, national, international or foreign law or regulation.
4.4 Customer shall be fully responsible for the content of its Customer Data and its use of the White Label Program and in no event shall CrowdChange be liable to Customer or any other person for the content of the Customer Data or Customer’s use of the White Label Program. Customer agrees that it has collected and shall maintain and handle all Customer Data and offer the White Label Program in compliance with all applicable laws, rules and regulations. Customer represents and warrants to CrowdChange that it has obtained any necessary permission, release and/or consent from any person whose personal information is entered into, transmitted by, stored on or uploaded to the White Label Program as Customer Data, or otherwise provided to CrowdChange or Customer in any form or fashion.
4.5 Customer warrants that all activity on the White Label Program will be conducted in compliance with all applicable laws, including all unfair competition, gaming, charitable solicitation and privacy laws. Customer acknowledges and agrees that CrowdChange is not responsible and shall have no liability for any promotional offer made via the White Label Program, including any sweepstakes, raffle, promotion or charitable campaign.
Section 5 Support
5.1 For no additional cost, CrowdChange shall offer support for the White Label Program in the form of phone and email support (“Support”). As part of the Support, Customer shall receive any updates, patches, bug fixes or new versions provided by CrowdChange to its customers generally; provided that if CrowdChange offers any significant new functionality of the White Label Program or any additional products or services, CrowdChange reserves the right to license such new functionality, products or services separately and charge an additional fee in connection therewith. CrowdChange shall provide Support only if Customer promptly reports White Label Program problems along with a detailed description of the problem with supporting evidence.
5.2 CrowdChange may amend the Support from time to time in its sole discretion. CrowdChange is not obligated to provide Support if (a) the applicable issue is caused by software, hardware, or applications, other than those supplied by CrowdChange, (b) Customer cannot reproduce the error and demonstrate it to CrowdChange, (c) the applicable issue is caused by Customer’s conduct or misuse of the White Label Program or (d) the applicable issue is caused by a hardware malfunction or defect.
5.3 If it is determined by CrowdChange that the issue for which Customer received Support was caused by Customer’s negligence or willful misconduct or Customer’s combination of the White Label Program with any software, hardware or applications not provided by CrowdChange, Customer shall promptly reimburse CrowdChange for any Support provided by CrowdChange relating to such issue on a time-and-materials basis at CrowdChange’s then-current Professional Services rates.
Section 6 Prices and Terms of Payment
6.1 Customer shall pay to CrowdChange the Price specified on the first page of the License Agreement within 7 days of the Effective Date.
6.2 Customer agrees that CrowdChange shall receive the CrowdChange Service Fee as noted on the first page of the License Agreement, which shall be paid in the manner described in Exhibit A. Customer shall be responsible for the payment of all present or future sales, use, excise, value‑added or other similar tax applicable to the price, sale, license, or furnishing of any White Label Program or Support in connection with this Agreement (except for taxes on CrowdChange’s income). Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed. Any dispute of fees due hereunder must (a) be made in good faith within fifteen (15) days of the Invoice date, and (b) must involve an invoicing error of the amount due, the types of charges or the due date.
6.3 Prices and fees charged by third parties in connection with Non-CrowdChange Products and Services may increase from time to time. Any such increases in prices or fees, to the extent not otherwise paid for by an increase in transaction fees, shall be invoiced by CrowdChange to Customer and paid by Customer within 7 days of receipt of the invoice.
6.4 Customer is solely responsible for any and all costs and expenses relating to integrating the White Label Program with Customer’s existing software and network.
6.5 Unless otherwise agreed between the parties in writing, the financial terms applicable during any Renewal Term shall remain the same as those in effect immediately prior to such Renewal Term.
Section 7 Term and Termination
7.1 The initial term of this Agreement begins on the Effective Date, as specified on the License Agreement, and shall remain in force and effect to and including the License End Date, as specified on the License Agreement (“Initial Term”). Unless earlier terminated in accordance with this Agreement, upon expiration of the Initial Term or any then-current Renewal Term, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”) on the same terms, including the financial terms then in effect, unless Customer provides CrowdChange with written notice of its intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable, or unless the parties mutually agree in writing to enter into a new or amended agreement containing different terms, including the financial terms. The Initial Term and the Renewal Term(s) are collectively called the “Term.”
7.2 Either party may terminate this Agreement for a material breach by the other party upon thirty (30) days’ written notice describing the alleged breach in reasonable detail, provided that the breaching party shall have such thirty (30) day period, or such longer period as the parties may agree, to cure the breach before termination becomes effective.
7.3 Notwithstanding anything to the contrary in this Agreement but without limiting CrowdChange’s rights in Section 7.2 above, CrowdChange may, in its sole discretion, immediately terminate this Agreement and/or suspend Customer’s, its Authorized Users’ or any End User’s access to the White Label Program or a portion thereof (without notice to Customer), if (a) CrowdChange believes that the continued use of the White Label Program may result in harm to CrowdChange, the White Label Program (including the security of the systems), other CrowdChange customers or the rights of any third parties or (b) CrowdChange believes Customer has breached this Agreement in a willful or grossly negligent manner.
7.4 Without limiting Customer’s obligations under Section 10, upon the expiration or termination of this Agreement, Customer shall not be permitted to retain and shall promptly erase or destroy any CrowdChange Materials or Documentation (a) in any file, hard drive, server or any other form of memory in Customer’s possession or control or (b) in any printed form. Customer shall confirm in writing such erasure or destruction upon written request from CrowdChange.
Section 8 Indemnification
8.1 Customer will indemnify, defend and hold harmless CrowdChange (and its successors and assigns) and each of their respective employees, directors, officers, personnel, licensors, contractors and representatives (collectively, “CrowdChange Indemnitees”) from and against any and all Damages incurred by CrowdChange in connection with any and all claims, demands, suits or proceedings made or brought against CrowdChange Indemnitees by a third party arising out of or in connection with any claim relating to (a) CrowdChange’s use of the Customer Data in accordance with this Agreement, (b) any claim that Customer's use of the White Label Program infringes or misappropriates a third party’s intellectual property rights, (c) Customer’s failure to comply with applicable law in any activity that occurs on the White Label Program, including any use of Customer Data, or any sweepstakes, raffle, auction or promotion offered via the White Label Program, (d) Customer’s or its Authorized Users’ breach of any representations, warranties, covenants or obligations applicable to them under this Agreement; (e) Customer’s installation and/or use of any Non-CrowdChange Products and Services; (f) Customer’s use of and offering of access to the White Label Program.
8.2 Unless CrowdChange elects to defend itself (which it may do in its sole discretion), Customer shall defend the applicable claim with counsel agreed to by CrowdChange, which consent shall not be unreasonably withheld. CrowdChange shall at all times have the right to participate in such defense at its own expense and with its own counsel and any delay or failure of CrowdChange to provide notice of a claim for indemnification will not be deemed a breach by CrowdChange of this Agreement and will not relieve Customer of its obligations under this Section except to the extent that Customer’s defense of the claim is materially prejudiced thereby. Customer shall not settle the applicable claim without CrowdChange’s prior written approval.
Section 9 Limitation of Liability and Disclaimers
9.1 IN NO EVENT SHALL CROWDCHANGE, ITS SUCCESSORS, ASSIGNS, AFFILIATES, OR EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, PERSONNEL, LICENSORS, CONTRACTORS AND REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF DATA, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, THE WHITE LABEL PROGRAM OR THE SUPPORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CROWDCHANGE’S AGGREGATE AND TOTAL LIABILITY (A) TO CUSTOMER AND ALL OF ITS AUTHORIZED USERS, COLLECTIVELY, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, THE WHITE LABEL PROGRAM OR SUPPORT, REGARDLESS OF THE FORM OF ACTION AND WHETHER THE CAUSES OF ACTION OR CLAIMS ARE BROUGHT DURING OR AFTER THE TERM, WILL BE LIMITED TO $10,000; AND (B) TO EACH END USER WHO IS NOT AN AUTHORIZED USER, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT OR THE WHITE LABEL PROGRAM, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO $100. The provisions of this Section 9.1 allocate the risks among CrowdChange, Customer, Authorized Users and End Users and reflect the basis upon which the White Label Program is provided and used.
9.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER CROWDCHANGE NOR ITS AFFILIATES NOR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, TITLE, ORIGINALITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR RECEIPT OF THE WHITE LABEL PROGRAM, SUPPORT, OR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF THE WHITE LABEL PROGRAM WILL BE SECURE, UNINTERRUPTED OR ERROR FREE.
Section 10 Confidentiality
10.1 The receiving party (“Receiving Party”) shall not use the Confidential Information of the disclosing party (the “Disclosing Party”) for any purposes except to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall not, without the prior written approval of the Disclosing Party, disclose the Disclosing Party’s Confidential Information to any third party; except that Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, contractors, agents, representatives and consultants that have a need-to-know and are bound by confidentiality and non-disclosure obligations at least as stringent as those set forth herein. Except as expressly set forth in this Agreement, nothing in this Agreement shall transfer any rights, title or interest of a party in its Confidential Information to the other party.
10.2 Both parties acknowledge that any unauthorized disclosure or misappropriation of any of the other party’s Confidential Information in violation of this Agreement may cause the other irreparable harm, the amount of which may be difficult to ascertain. The parties agree that an injured party shall be entitled to relief at law or in equity, including but not limited to injunctive relief and specific performance, in the event of any breach or anticipated breach of the confidentiality provisions and intellectual property provisions of this Agreement, without the necessity of proving actual damages.
10.3 All Confidential Information shall remain the property of the Disclosing Party and if disclosed in tangible or electronic form, shall, at no cost to the Disclosing Party, be returned or destroyed upon (a) the Disclosing Party’s written request or (b) within thirty (30) days after termination of this Agreement for any reason without the necessity of any request for the Confidential Information. However, Receiving Party shall not be obligated to destroy or return any Confidential Information to the extent any such Confidential Information or copies are required to be retained by law or are retained in routine backup, archival or disaster recovery systems.
10.4 The Receiving Party shall not be considered to have breached its obligations under this Section if it discloses Confidential Information of the Disclosing Party pursuant to a legal requirement of a competent government body (a “Legal Request”), provided that, to the extent legally permitted, promptly upon receiving any such Legal Request, and prior to making such disclosure, the Receiving Party makes available to the Disclosing Party sufficient information to permit it to interpose an objection, or to take such action to promote confidential handling of the Confidential Information as it deems appropriate. The Receiving Party will not respond to a Legal Request until and unless required to do so, and will respond only to the extent required.
Section 11 Miscellaneous
11.1 If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
11.2 CrowdChange reserves the right to engage third parties, including but not limited to, contractors and agents, to provide the White Label Program and perform Support.
11.3 Except with respect to Customer’s payment obligations hereunder, neither party shall be liable under this Agreement for failure or delay in performance caused by a Force Majeure Event. If a Force Majeure Event occurs, the party affected shall give prompt written notice to the other party and use commercially reasonable efforts to resume the performance excused by the Force Majeure Event.
11.4 The White Label Program is subject to the export control laws of various countries, including without limitation the laws of the United States. Customer agrees that it will not export the White Label Program to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is located or operates, and any foreign countries with respect to the use of the White Label Program by Customer. Customer represents that it is not named on any U.S. government denied-party list and will not use the White Label Program in a U.S.-embargoed country.
11.5 This Agreement has been made in and shall be construed in accordance with the laws of the State of California, without giving effect to any conflict of law principles. If any disputes arise out of or relating to this Agreement or the use of the White Label Program by Customer, any Authorized User or any End User (“Dispute(s)”): (1) The parties will first attempt in good faith to resolve the Dispute by informal negotiation. The informal negotiation period will begin when the party asserting the Dispute sends a written notice to the other party describing the facts and circumstances of the Dispute. If, after sixty (60) days from the date the notice of Dispute is sent, the parties have been unable to resolve the Dispute, either party may commence binding arbitration. (2) Thereafter, such dispute will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules; provided that, to the extent the JAMS Consumer Arbitration Minimum Standards apply to a Dispute involving an Authorized User or End User, such standards shall apply. The Tribunal will consist of one arbitrator. The place of arbitration will be in San Francisco, CA, except where otherwise required by applicable JAMS Consumer Arbitration Minimum Standards. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. SUBJECT TO APPLICABLE LAW, BY USING THE WHITE LABEL PROGRAM, CUSTOMER, AUTHORIZED USERS AND END USERS AGREE THAT DISPUTES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION.
11.6 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. To the fullest extent permitted by applicable law, Customer, any Authorized User or End User must initiate any claim or proceeding arising out of or relating to this Agreement and its subject matter within one (1) year from the date when such party knew, or should have known after reasonable investigation, of the facts giving rise to the claim, otherwise such claim is waived and released.
11.7 All notices pursuant to this Agreement shall be in writing. Notices to CrowdChange shall be deemed duly given when delivered by certified or registered mail or by overnight courier services with delivery receipt to the address of CrowdChange set forth in the applicable License Agreement or via email to support@crowdchange.co with the subject line “Legal Notice.” Notices to Customer shall be deemed duly given when delivered by certified or registered mail or by overnight courier services with delivery receipt to the addresses of Customer set forth in the applicable License Agreement, or to such other address as either party may provide to the other in writing. In the case of notices by CrowdChange relating to the operation of the White Label Program, such notices may, at CrowdChange’s option, be in the form of an electronic notice delivered by CrowdChange to Customer or as otherwise agreed by the parties.
11.8 This Agreement and any other related agreements between CrowdChange and Customer may not be amended or modified except by a written agreement between CrowdChange and Customer. This Agreement constitutes the complete and exclusive statement of the agreement between CrowdChange and Customer in connection with the subject matter hereof, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the parties disclaim any reliance on any such representations, discussions and writings.
11.9 Except for Customer’s right to permit Authorized Users and End Users to access and use the White Label Program as expressly permitted under this Agreement, Customer may not, without CrowdChange’s prior written consent, assign, delegate, pledge or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. CrowdChange may assign this Agreement without consent from Customer to any of its Affiliates or in the event of a merger, corporate reorganization, or acquisition of all or substantially all the assets of CrowdChange.
11.10 CrowdChange and Customer are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.11 Sections 2, 3, 4.4, 4.5, 6, 7.4, 8, 9, 10, 11 and 12 shall survive the expiration or termination of this Agreement.
Section 12 Definitions
12.1 “Access Credentials” means any username, password or other credential used to access the White Label Program or any restricted functionality thereof.
12.2 “Affiliate” of a party means any present or future parent or subsidiary of such party, and any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights.
12.3 “Authorized User” means Customer’s employees, agents, contractors, consultants, suppliers, chapters, members and any individual or entity authorized by Customer or one of its chapters or related entities to use the White Label Program, including supporters or participants authorized to create a personal fundraising page or otherwise create or conduct activities on behalf of or in support of Customer or one of its related entities.
12.4 “CrowdChange” has the meaning set forth in the Preamble.
12.5 “CrowdChange Indemnitees” has the meaning set forth in Section 8.
12.6 “CrowdChange Materials” means any materials developed, created or acquired by CrowdChange, solely or in conjunction with others (including Customer), pursuant to this Agreement, including any derivative works thereof, in any form and in any media, now known or later developed, and all Proprietary Rights in the same. CrowdChange Materials include materials, documents, data, know-how, works, processes, code, software, technologies, and inventions developed, created or acquired by CrowdChange, solely or in conjunction with others (including Customer), pursuant to this Agreement in the course of providing the White Label Program or Support to Customer, but do not include any Customer Data or Confidential Information of Customer. The CrowdChange Materials are deemed part of the “White Label Program”.
12.7 “Confidential Information” means any confidential or proprietary information, whether marked as confidential or proprietary or which should reasonably be considered confidential or proprietary, concerning a party, its Affiliates and/or third parties and/or their respective businesses, products or services. “Confidential Information” shall not include information which (i) is independently developed by a party without use of or reference to any Confidential Information of the other party; (ii) is acquired by a party from a third party having the legal right to furnish the same to the other party; or (iii) is at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the other party).
12.8 “Customer” has the meaning set forth in the Preamble.
12.9 “Customer Data” means any data, information, content or materials that Customer or its Authorized Users enter into, submit, upload, transfer, store or otherwise process through the White Label Program, and any data or information submitted by End Users or otherwise collected through an event, fundraiser, campaign, Donation Form or other activity offered by or on behalf of Customer through the White Label Program, including User Content and donor, participant, supporter, registrant and transaction information. Customer Data does not include (a) CrowdChange Materials; or (b) payment card information or other payment credentials processed and controlled by a third-party payment processor. For clarity, Customer’s rights in any personal information included in Customer Data are subject to the rights of the individuals to whom that information relates and applicable law.
12.10 “Damages” means, collectively, any claims, demands, actions, losses, liabilities, injury, damages, suits and all related costs and expenses, including without limitation attorneys’ fees and investigation and discovery costs.
12.11 “Disclosing Party” has the meaning set forth in Section 10.1.
12.12 “Disputes” has the meaning set forth in Section 11.5.
12.13 “End User” means any individual who accesses or uses the White Label Program, including any donor, participant, supporter, ticket purchaser, event attendee, or other individual who interacts with an event, fundraiser, campaign, auction, Donation Form, or any other activity offered through the White Label Program. An Authorized User who is an individual is also an End User to the extent that such Authorized User accesses or uses the White Label Program.
12.14 “Documentation” means the then-current official materials produced by CrowdChange for the White Label Program. Customer shall only have the right to use the Documentation for internal use in accordance with this Agreement and must retain all copyright markings on such Documentation. The Documentation shall be part of the White Label Program.
12.15 “Force Majeure Event” refers to any circumstances beyond the affected party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or other industrial disturbances, passage of law or any action taken by a governmental or public authority.
12.16 “Initial Term” has the meaning set forth in Section 7.1.
12.17 “Legal Request” has the meaning set forth in Section 10.4.
12.18 “Non-CrowdChange Products and Services” has the meaning set forth in Section 3.1.
12.19 “Proprietary Rights” means all patents, copyrights, trademarks, trade secrets, methodologies, ideas, concepts, inventions, know-how, techniques and all other intellectual property rights and proprietary rights.
12.20 “Professional Services” means customization, training, and other similar professional services related to the White Label Program. If Customer wishes to order any Professional Services, the parties shall either amend this Agreement or enter into a separate agreement with respect to such Professional Services as such Professional Services are not governed by this Agreement.
12.21 “Receiving Party” has the meaning set forth in Section 10.1.
12.22 “Renewal Term” has the meaning set forth in Section 7.1.
12.23 “Support” has the meaning set forth in Section 5.1.
12.24 “Term” has the meaning set forth in Section 7.1.
12.25 “Transaction” means any and all funds processed by a third-party payment processor as a result of activity through or in connection with the White Label Program.
12.26 “White Label Program” means the CrowdChange proprietary software platform made available as a software-as-a-service solution that enables Customer and its Authorized Users to create, manage, and operate branded fundraising campaigns, events, auctions and other donation or online transaction experiences, together with the related user interface, hosting, Support, and standard features and functionalities provided by CrowdChange as part of the White Label Program, as such features and functionalities may be modified from time to time. The White Label Program includes the configuration and branding of the platform for Customer’s use, and the provision of standard Support, maintenance, updates and Documentation. The White Label Program may interoperate with, or enable access to, certain independent third-party infrastructure and service providers, including, without limitation, cloud hosting providers such as Amazon Web Services and payment processors such as Stripe. Such third-party services constitute Non-CrowdChange Products and Services and are not part of the White Label Program.
12.27 "Donation Form" means a fundraiser on the White Label Program that is accessed through a direct link from the Customer’s website or embedded on the Customer’s website and is limited solely to accepting one-time, monthly and/or annual donations and, if applicable, tribute cards. A Donation Form may not use any other White Label Program functionality.
12.28 "Recurring Donation Event" means a fundraiser on the White Label Program that is accessed through a direct link from the Customer’s website or embedded on the Customer’s website and is limited solely to accepting recurring monthly and/or annual donations and, if applicable, tribute cards. A Recurring Donation Event may not accept one-time donations or use any other White Label Program functionality.
