Please review the entire agreement carefully.
Using the Benevity Platform through the Host Environment, United States members of the general public using or transacting within the Host Environment will be offered the opportunity to make a contribution of money to or provide non-binding recommendations about which “eligible charities” should receive distributions from a donor advised fund administered by the American Endowment Foundation, an IRS-recognized, tax exempt, public charity described in Internal Revenue Code §501(c)(3) serving a national constituency, whose primary activity is donor advised fund administration (the “Foundation”). The Foundation will further its charitable purposes by accepting (through the Benevity Platform) contributions from the Host and other US members or users of the Host Environment (sometimes referred to as “Donors”), briefly holding the contributed funds, and distributing the funds through use of a database within the Benevity Platform (the “Eligible Charity Database”) to organizations that are eligible IRS-recognized, tax exempt, charities described in Internal Revenue Code (the “Tax Act”) §501(c)(3) in accordance with Donor Advice (defined below) as part of a donor advised fund established in favor of those corporations that utilize the Benevity Platform (the “Donor Advised Fund”).
You may use the Host Environment and the Benevity Platform from a United States domain or location or from another location if you are a United States taxpayer, and you agree to the terms below. If you disagree with any of these terms, you are not entitled to access or utilize any of the Benevity Platform’s charitable donation functionality presented in the Host Environment.
1.1. The Host has established one or more donation programs within the Host Environment to facilitate the donation of credits used as a placeholder for United States currency (“Donation Credits”) that are generated by your participation in such programs (“Donation Programs”) established by Host or Host-approved third parties (“Program Originators”) to a list of charities within the Eligible Charity Database (“Eligible Charities”) that should receive a distribution from the Donor Advised Fund. Lists of the Program Originators and Eligible Charities can be found at the Site from time to time. The Host may add, remove or otherwise change Program Originators and Eligible Charities at any time without notice. While in limited circumstances (depending upon the nature of the Donation Program) you may request that funds earned by you on account of Donation Credits be paid to you, the purpose of the Donation Programs is to facilitate the making of donations by you and other users of the Site to Eligible Charities via the Donor Advised Fund.
1.2. This agreement (as it may be amended from time to time, the “Donation Platform Agreement” or this “Agreement”) sets out certain terms and conditions applicable to users of the Benevity Platform and all Donation Programs which utilize its functionality, supersedes all previously published terms and conditions or agreements relating to Donation Programs, and is separate and distinct from all agreements (“Donation Program Agreements”) entered into between you and the Host or other Program Originators relating to Donation Programs. This Agreement may be amended at any time by Benevity posting the amended version to this site or the Host Environment.
2. Participation and Acceptance
(a) you must have agreed to be bound by the terms and conditions of this Agreement by accepting the terms and conditions of applicable Site Documents incorporating this Agreement by reference;
(b) you must be at all times be in full compliance with this Agreement;
(c) your membership or user privileges under any of the Site Documents must not have been terminated or suspended, and you must not have otherwise been disqualified from participating in any Donation Program pursuant to the terms and conditions of this Agreement or any other Site Document; and
(d) the agreement between Host, Benevity and the Foundation respecting utilization of the Benevity Platform must be in good standing and full force and effect.
For the purposes of this Agreement, a participant in a Donation Program is referred to as a “Participant”.
2.2. Your acceptance of this Agreement will constitute your acknowledgment that you have received, read and agreed with the terms and conditions of this Agreement, as they may be amended from time to time. The posting of this Agreement, as amended from time to time, on or via the Site (via hyperlink, i-frame or otherwise) is deemed notice to you of this Agreement and any amendment of it, where notice is required or permitted to be given. Furthermore, registration as a Participant on the Site or participation in any Donation Program or any use of the Benevity Platform constitutes acceptance of this Agreement, as amended from time to time.
2.3. You acknowledge that only individuals who are Participants may be entitled to participate in certain Donation Programs. You are advised to review each applicable Donation Program Agreement to determine the terms and conditions of such program, including your eligibility to participate in such program. You acknowledge and agree that Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (the “Benevity Parties”) will not have any liability or responsibility to you in connection with any Donation Program, or any agreement relating to any such program or the earning of or entitlement to funds or the privilege of providing Donor Advice in either case, on account of Donation Credits that may be generated by your participation in any Donation Program or the calculation or entitlement to Donation Credits by the Program Originator, and you release and forever discharge the Benevity Parties from all claims in connection with such matters. You further acknowledge that Benevity is solely a licensor of software and provider of ancillary services to facilitate Host’s or Program Originator's Donation Program(s) using the Foundation. Benevity has no interest in or control over any donations made to the Foundation through the Benevity Platform or the rules and operations of the Donation Program sponsored by the Host or other Program Originator.
3. Types of Donation Transactions
3.1. There are several ways to effect donations or provide Donor Advice through the Benevity Platform, depending upon the nature and mechanics of the relevant Donation Program in the Host Environment. For the purposes of Host Donation Programs, Host will utilize Donation Credits to determine amounts to be contributed by the Host or other Participants as a result of your participation in the Donation Program. Donation Credits are used as the placeholder currency within the Benevity Platform to provide flexibility to participating businesses and to enable proper tracking of when and by whom Gifts are made to the Foundation. Until a Donation Credit is designated as a donation of its value to the Foundation (in one of the ways contemplated in this Agreement or a relevant Donation Program Agreement) the Donation Credit is considered to be a “pre-Donation Credit” that can be converted into a Donation Credit. Generally, the creation and allocation of Donation Credits to a Participant within the Benevity Platform represents either: (a) the purchase by a Participant of Donation Credits using its own funds but facilitated through the Host Environment (a “Direct Gift”); (b) a gift by a Participant of the beneficial ownership of the redemption amount of a “pre-Donation Credit” to another Participant (a “Recipient Receiptable Gift”); or (c) the privilege afforded to a Participant to provide advice as to the chosen Eligible Charit(ies) to receive a donation (“Donor Advice”) equal in value to the relevant Donation Credits, subject to the Foundation’s acceptance or approval of such Donor Advice in its discretion (a “Donor Advice Gift”). Donation Credits may also be allocated to Eligible Charities through the Donor Advised Fund as part of Matching Programs (defined below) funded by Host or other Program Originators (a “Matching Gift”). Host will determine and set forth in the terms of the Site or other Donation Program Agreement whether and how it wishes the allocation of Donation Credits to result in Direct Gifts, Recipient Receiptable Gifts, Donor Advice Gifts and Matching Gifts, as the case may be (collectively, “Gifts”). The following provisions apply respecting different types of Gifts made through the Benevity Platform, and all Gifts are subject to the Default Rules in Article 9 as applicable:
(a) Direct Gifts. In the case of a Direct Gift (such as a donation from a Participant’s own funds as a workplace giving deduction or the direction of payment from a transactional interface), it is intended that the donation and any tax receipt be for the credit of the original Participant making or directing the Gift. Host on its own behalf or as agent for the Participant has or will have provided funds to or for the benefit of the Foundation respecting the Donation Credits representing the Direct Gift. Upon Donation Credits being allocated to the relevant Participant within the Benevity Platform and the corresponding funds being transferred to or held for the benefit of the Foundation, the pre-Donation Credits are converted into Donation Credits and will normally represent a receiptable gift of their redemption value by the Participant to the Foundation through the Benevity Platform, subject to the Foundation’s receipt and approval of the Donor Advice and to the Default Rules.
(b) Recipient Receiptable Gifts. In the case of a Recipient Receiptable Gift (such as the conversion of loyalty currency, a purchaser rebate or similar incentive reward issued by Host or another Program Originator to a Participant), Host or such Program Originator intends to convey both its beneficial entitlement to the redemption of pre-Donation Credits, as well as the right to provide Donor Advice, to a Participant within the Host Environment. In the case of such a Gift, Host will permit a period of time within which the Participant may claim the cash redemption value of such pre-Donation Credits that have been gifted to it in accordance with the provisions of section 5.5 below. Upon the earlier of: (a) the Participant recipient recommending a gift equal in value to the pre-Donation Credits to an Eligible Charity through the Benevity Platform (ie. choosing to give Donor Advice); (b) the Participant recipient requesting a tax receipt through the Benevity Platform when eligible for same; and (c) the expiry of the applicable cash redemption period for such Gift as contemplated in section 5.5 below, the pre-Donation Credits are converted into Donation Credits and upon the corresponding funds being held by the Foundation, will normally represent a receiptable gift of their redemption value by the Participant recipient to the Foundation, subject to the Foundation’s receipt and approval of the Donor Advice and to the Default Rules.
(c) Donor Advice Gifts. In the case of a Donor Advice Gift (such as a charitable gift card or some Matching Gifts), it is intended that the recipient of the Gift receive only the privilege to provide Donor Advice. The Host or other Participant agrees that upon allocation to Participants within the Benevity Platform, the pre-Donation Credits are converted into Donation Credits and upon the corresponding funds being held by the Foundation, will normally represent a receiptable donation of their redemption value by such Host or other Participant to the Foundation, subject to the Foundation’s receipt and approval of the Donor Advice to be provided by the Participant recipient and to the Default Rules.
(d) Matching Gifts. The Benevity Platform includes functionality that enables Host and other Program Originators to “match” donations made by users of the Host Environment on terms determined by them but using the Benevity Platform (a “Matching Program"). A matching component from a Host or other Program Originator does not normally result in Participants acquiring Donation Credits as described above. Matching campaigns result in Matching Program Originators making a donation to the Foundation for which, upon the corresponding funds being held by or for the benefit of the Foundation, a tax receipt will normally be available in the name of the Host or other Program Originator, as the case may be, in the manner of a Direct Gift. Under a Matching Gift Program, the Host or Program Originator may provide the Participant the privilege of giving Donor Advice with respect to its contribution to the Foundation attributable to the Donation Credits, subject to the Foundation’s approval of the Donor Advice and to the Default Rules. Where the Host wishes a Matching Program to result in Recipient Receiptable Gifts rather than Matching Gifts for such matching component, additional specific terms will be included in the relevant Donation Program Agreement.
4. Value; Transferability
4.1. Once allocated to a Participant or other account within the Benevity Platform, each Donation Credit has an equivalent cash value of US$0.01.
4.2. Except as specifically provided herein, neither Donation Credits nor any funds on account thereof are transferable without the express consent of Host.
5. Earned or Gifted Donation Credits
5.1. Donation Credits generated by, purchased by, or gifted to you through your participation in Donation Programs pursuant to the terms and conditions of each such program will be posted by Host via the Benevity Platform to a notional account on the Benevity Platform (a “Benevity Account”) within a commercially reasonable period of time following confirmation from the applicable Host or Program Originator that you have earned, purchased, or are otherwise entitled to the relevant number of Donation Credits. The Benevity Account will record the number of Donation Credits generated through your participation in Donation Programs, any adjustments to the number of such Donation Credits, and, upon receipt by the Foundation of the corresponding funds, the number of Donation Credits with respect to which you may provide Donor Advice pursuant to the terms and conditions of this Donation Platform Agreement. The manner of presentation of the Benevity Account on the Site is determined and maintained by the Host.
5.2. You acknowledge that Benevity is a software licensor, and it relies on information provided by the Host or other relevant Program Originator with respect to the nature and terms of the Donation Program, the number of Donation Credits that may be generated through your participation in Donation Programs, and all matters relating to the presentation and execution of the Donation Program within the Host Environment, and you release and forever discharge the Benevity Parties with respect to all claims relating to such matters.
5.3. Any funds received by or on behalf of Host or the Foundation on account of pre-Donation Credits or for Donation Credits generated by your participation in any Donation Program will be held in trust by or on behalf of Host for your benefit in accordance with this Agreement and any relevant Donation Program Agreement until they are deemed contributed to the Foundation. The Foundation must be in receipt of funds from or via the Host representing the redemption amount of all Donation Credits allocated to a Benevity Account before any donation is effected or any valid tax receipt can be issued. Once such Donation Credits have been donated or deemed donated pursuant to the relevant Donation Program Agreement and this Agreement, the funds representing such Donation Credits are beneficially owned by the Foundation and a donation is effectively made on behalf of the Host or other relevant Participant to the Donor Advised Fund, subject to receipt of Donor Advice, and to the acceptance or approval of such advice by the Foundation in its discretion. For greater certainty, “Donor Advice” is deemed to have been given when Donation Credits have been allocated or deemed allocated to the Foundation or to an Eligible Charity recommended from the Eligible Charity Database via one of the following means (i) a Participant has utilized the “auto-allocate” or “auto-advise” functionality of the Benevity Platform (or equivalent), in which case their Donation Credits are automatically allocated in accordance with the choices specified in the “Personal Foundation” functionality of their user profile (or equivalent); (ii) a Participant specifically allocates acquired Donation Credits or a specified portion of their Donation Credit account balance to one or more Eligible Charities using the “advise now” or “donate now” functionality of the Benevity Platform (or equivalent); (iii) the Host or another Program Originator makes a Matching Gift, in which case the allocation of Donation Credits is determined in accordance with the relevant Matching Program; or (iv) one or more of the Default Rules (defined in Article 10 below) are applicable, which therefore determines the allocation of the Donation Credits. In accordance with the legal requirements for a donor advised fund, all Donor Advice is subject to the acceptance or approval of the Foundation in its discretion. Moreover, all amounts held in Donor Advised Funds are under the Foundation’s exclusive legal control and may be used only for charitable purposes and not for the benefit of any Host, Program Originator, Participant, donor, donor advisor, or other impermissible private benefit.
5.4. If Host or another Program Originator adjusts the number of Donation Credits generated by you pursuant to the applicable Donation Program, Benevity may adjust the number of Donation Credits in the relevant Benevity Account and the funds held in trust by or on behalf of Host for its, your or the Foundation’s benefit accordingly.
6.1. In delivering certain aspects of the Donation Programs, Host licenses the Benevity Platform and uses the services of the Foundation. Depending upon the nature of the Host Environment, it may also utilize the services of other foundations to effect similar results for users in other jurisdictions. You authorized and direct Host to make a gift on your behalf of all funds held by Host on account of Donation Credits generated by your participation, subject to adjustments permitted under this Donation Platform Agreement, to the Foundation on the date (the “Donation Date”) that is the later of (a) and (b) below, where:
(a) is the earlier of: (i) in the case of a Direct Gift or a Donor Advice Gift made by you, the date upon which you have instructed Host to make the donation (which may be immediately donated upon Foundation's receipt of funds in the amount of the donation from Program Originators if you have so instructed Host in your Personal Foundation at the Site); (ii) if the Donation Credits represent a Recipient Receiptable Gift to you from Host or another Program Originator, the business day immediately following the date that is 15 days following the date the Donation Credits are posted to your credit in a Benevity Account; and (iii) in any case where any of the Default Rules apply, the date on which the donation is deemed effected by such Default Rule; and
(b) is the date of which the Foundation is in receipt of unrestricted funds in an amount equaling the redemption amount of the relevant Donation Credits.
Such Gifts will be received by the Foundation or by Host as agent to be transferred to the Foundation, and thereafter will normally be a tax receiptable donation made by the relevant Participant to the Foundation. All such donations are to the Donor Advised Fund maintained by the Foundation, and will be subject to a management fee of seven percent (7%) payable to the Foundation, which is deducted from the amounts disbursed by the Foundation to the Eligible Charities (the “Platform Fee”). In the event your right to Donation Credits is acquired through donations made by credit or other payment card using Host’s or other Program Originator’s merchant account (or equivalent), the amount of the donation may be reduced by such merchant account charges (unless paid for by Host or such other Program Originator).
6.2. Pursuant to the Donor Advised Fund but subject to the nature of the Licensee Integration and presentation of the Benevity Platform in the Host Environment, you may indicate to which Eligible Charities you would like donations attributable to the Donation Credits you generated to be made (ie. provide ongoing Donor Advice) by selecting one or more Eligible Charities from the interface provided on the Site or in your “Personal Foundation” (or equivalent) at the Site, and the percentage allocation of donations to each. You can cancel, change or adjust your Donor Advice by modifying your selection of and allocation to Eligible Charities at any time in your Personal Foundation at the Site. Any such cancellation, change or adjustment will only affect donations attributable to the Donation Credits you generated after the date of such cancellation, change or adjustment. Your Personal Foundation (if applicable) will also show the donations to the Foundation attributable to the Donation Credits you generated under the Donation Program. Pursuant to the legalities of a Donor Advised Fund: (i) you agree that the Foundation, as the recipient of the donation, will consider your advice in respect of which Eligible Charities the donation will be distributed by the Foundation; (ii) you acknowledge that the Foundation in its sole discretion will determine whether to accept or approve your advice; and (iii) you acknowledge that you have no legal power to compel the Foundation, as recipient of the donation, or Host, to donate in accordance with such advice.
6.3. Once pre-Donation Credits have been allocated to a Participant in accordance with the terms of this Agreement and any Donation Program Agreement, they become Donation Credits and the Foundation is entitled to transfer to the corresponding Donor Advised Fund account from any funds provided to it by or on behalf of Host or Program Originator for Participant’s account or from such other available source of funds accessible to the Foundation on behalf of such Participant, an amount equal to the redemption value of all such Donation Credits, upon which such funds are thereupon beneficially owned by the Foundation.
7. Tax and Tax Receipts
7.1. If you are a United States taxpayer and in compliance with this Agreement and all other Site Documents, you may be eligible to receive a tax receipt (PDF file accessible at the Site or by email) with respect to certain applicable Gifts made by or on your behalf to the Foundation. If you are entitled to a receipt, the relevant date of the tax receipt will be the Donation Date in the taxation year in which cash equal in value to the Donation Credits was donated to the Foundation in accordance with this Agreement. Notwithstanding the foregoing, you will not be entitled to obtain a valid tax receipt unless and until the Foundation is in receipt of funds representing the redemption amount of Donation Credits that have been generated by you. Please note that if you do not request a tax receipt or provide the information necessary for the Benevity Platform on behalf of the Foundation to generate a receipt on or before December 31 in any calendar year, you may not be entitled to a receipt for donations made in that year (see the Default Rules in Article 10 below).
7.2. Notwithstanding anything contained in this Agreement, any Donation Program Agreement or other Site Document, or the issuance of any tax receipts in your name by or on behalf of the Foundation, in no event shall Benevity, Host, Program Originator or the Foundation be liable to you for any direct or indirect damages, including without limitation any tax, interest, fines, damages, penalties or other levies imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Donation Program or the use of the Benevity Platform, whether through the Site or otherwise. You must consult your own tax and legal advisors respecting the actual tax or other impact of donations made through the Host Environment.
7.3. You irrevocably appoint Host as your trustee, where applicable under a Donation Program, to receive funds from you or other Program Originators or third party payment processors on account of Donation Credits you generate through participation in Donation Programs. You acknowledge and agree that:
(a) until the Donation Date, these funds will be held by Host or by the Foundation on behalf of Host for your benefit;
(b) these funds may be comingled with funds received in trust on account of Donation Credits earned by other Participants, and with other funds or property of Host;
(c) Host or its designee, as trustee, has all the powers necessary to deal with and transfer or gift these funds pursuant to the terms of this Agreement and any Donation Program Agreement;
(d) Host or the Foundation can deduct the Platform Fee and any merchant fees set forth in Section 6.1;
(e) Host or the Foundation has no responsibility or duty to invest these funds provided however that if interest is earned on these funds then the Foundation can keep any interest earned, and pay such interest to itself; and
(f) Host can amend this Agreement and the terms of this trust as it may determine in its sole discretion, provided that no amendment may change the beneficial ownership of such funds without your consent.
7.4. Host accepts its appointment as agent and trustee pursuant to the terms of this Donation Platform Agreement.
8. Suspension, Disqualification and Termination
8.1. Either Benevity or Host, in its sole discretion, may suspend your participation in any Donation Program for any reason with or without notice, including without limitation pursuant to Section 5.5(d) or if there is a negative balance in your Benevity Account. Host will contact you by email at the address provided in your user profile or other contact information on the Site to attempt to resolve the matter underlying the suspension. During the period of suspension, you will not be entitled to provide Donor Advice on account of Donation Credits generated by your participation in the Donation Program. If the matter underlying the suspension is resolved to the satisfaction of Host and Benevity, then the suspension will be terminated. If the matter is not resolved to the satisfaction of Host and Benevity, then Host may disqualify you from further participation in the relevant Donation Program pursuant to Section 9.2, and you will have no further rights to provide Donor Advice under the Donation Programs.
8.2. Host, in its sole discretion, may disqualify you from participating in any Donation Program for any reason with or without notice, including without limitation, due to death, bankruptcy, pursuant to Section 5.5(e), if you do not meet the participation requirements set forth in Section 2, if there is no activity in the Benevity Account for a period of twelve months following the calendar year in which Donation Credits were first allocated to you, if you or any other person using donation functionality on your behalf commits fraud or fails to comply with the terms of this Agreement or any other Site Document, if you are suspended and the matter underlying the suspension is not resolved to the satisfaction of Host or Benevity, or if the agreement between Host and Benevity for the use of the Benevity Platform is terminated in accordance with its terms. Upon disqualification, your Benevity Account or access may be closed, you will no longer have any rights under this Agreement, including without limitation, your rights to be issued Donation Credits following the date of disqualification, to receive funds held in trust for you on account of Donation Credits or to provide Donor Advice, and Host as trustee will be entitled to transfer any funds held in trust for your benefit on account of Donation Credits generated by your participation in the Donation Program to the Foundation and the Foundation will be entitled to utilize any such funds as it may determine in its sole discretion.
8.3. Host, in its sole discretion, may terminate the Donation Program or any part of it for any reason on 90 days notice to you. You will have 90 days from the date of notice to provide Donor Advice for the contributions to the Foundation attributable to Donation Credits in a Benevity account to your credit or request the payment to you of any funds held in trust by or on behalf of Host for your benefit on account of Donation Credits that relate to Recipient Receiptable Gifts generated or purchased by you, following which such remaining funds will be donated to or used by the Foundation in accordance with the Default Rules below.
8.4. You may cancel your participation in the Host Donation Program at any time at the Site in accordance with the relevant Site Documents and upon doing so you will be eligible to provide Donor Advice for the contributions to the Foundation attributable to Donation Credits generated or purchased by you up to the cancellation or close date, which Donation Credits may be donated only as permitted by Host pursuant to the terms and conditions of this Agreement and any Donation Program Agreement.
9. Default Rules
9.1. It is intended that there be no “breakage” within the Benevity Platform, such that all Donation Credits end up generating a donation to a charity. In certain circumstances identified below (collectively called the “Default Rules”), the results of intended actions within the Benevity Platform or the relevant Donation Program may be modified in the manner specified where a Default Rule is applicable. These provisions are in addition to any consequences of disqualification, suspension or termination contained elsewhere in this Agreement.
9.2. In circumstances where: (i) Donor Advice is not provided within the time specified in the Site Documents and in any event within 12 months following December 31 of the year in which the Donation Credits were allocated to a user; (ii) an Eligible Charity requested as part of Donor Advice is (a) no longer registered and in good standing as an Eligible Charity with Internal Revenue Service or other relevant regulatory agency, or (b) is otherwise no longer in the Eligible Charity Database; (iii) the Donation Credits allocated across the Benevity Platform to a particular Eligible Charity do not exceed the check threshold of the Foundation (currently $250) within 3 years of the relevant Donation Date; or (iv) the Foundation, exercising its discretion as a Donor Advised Fund, chooses to disagree with or decline to follow the Donor Advice, then the Foundation will make the determination of the Eligible Charity to which such donation will be made.
9.3. In circumstances where: (i) a tax receipt is not requested via the Benevity Platform by a Participant on or prior to December 31 in any calendar year in which Donation Credits have been allocated to such Participant or the name, address and any other information required by the Foundation to enable the Benevity Platform to generate a valid tax receipt in favor of such Participant is not provided by Host or such Participant prior to December 31 in any such calendar year; (ii) the Foundation determines that the donation is not properly receiptable by it under applicable law; or (iii) in the case of a Recipient Receiptable Gift, the recipient declines to obtain the tax receipt, the Foundation may issue the tax receipt to the Host or other Program Originator in the case of Recipient Receiptable Gifts and in all other cases the subject donation will be deemed “anonymous” and no receipt will be issued or accessible to the Participant.
9.4. In circumstances where: (i) the Host or other Program Originator or Participant has not provided sufficient funds equal to the redemption value of allocated Donation Credits; or (ii) bankruptcy or other legal process affecting Host or any other Program Originator or Participant compels the Foundation to return any funds held by it on deposit for the redemption of Donation Credits, no donation can be deemed effected and no receipt issued unless and until funds representing the allocated Donation Credits are unequivocally transferred to the Foundation.
10. Representations and Warranties
10.1. You represent and warrant to each of Host, Benevity, the Foundation and any other Program Originator that you are over the age of majority in the jurisdiction in which you reside and that this Agreement constitutes a binding and enforceable agreement against you, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity relating to enforceability.
12.1. Any claim, dispute or controversy (whether in contract or tort, pursuant to any statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this Agreement; (b) the Benevity Platform; (c) oral or written statements, advertisements or promotions relating to this Agreement or the Benevity Platform or any Donation Program; or (d) the relationships that result from this Agreement (including relationships with third parties) (collectively, a "Claim"), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). You agree to waive any right you may have to commence or participate in any class action against Benevity or the Foundation related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Benevity or the Foundation. If you have a Claim you must give written notice to arbitrate to Benevity at the address obtained by following the instructions in Section 14. If Benevity or the Foundation has a Claim it will give you notice to arbitrate at the address you have provided to Host in association with the use of the Site or other Host Environment with which the Benevity Platform is used. Arbitration of Claims will be conducted in such forum and pursuant to such rules as you and Benevity agree upon, and failing agreement will be conducted by one arbitrator selected by Benevity pursuant to the laws and rules relating to commercial arbitration in the State in which you reside that are in effect on the date of the notice to arbitrate.
13.1. You are solely responsible for any personal tax liability arising from participation in any Donation Program. You are advised to consult with a personal tax advisor in order to determine any personal tax consequences. You agree to release Host, Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns from any and all claims for direct or indirect damages, including without limitation any tax, interest, penalties or other amounts imposed by any taxing, governmental or other regulatory authority arising from or in connection with any Donation Program or the use of the Benevity Platform, whether through the Host Environment or otherwise.
13.2. This Agreement and its benefits are offered at the sole discretion of Host and Benevity. You understand and agree that either Host or Benevity may at any time, with or without notice, change this Agreement in whole or in part including, but not limited to, the conditions of participation, the earning and accumulation of Donation Credits, the rate at which Donation Credits are earned and any terms and conditions relating to the Foundation or Eligible Charities.
13.3. Host, Benevity and the Foundation may rely on your acceptance of and agreement with this Agreement. No person or entity is intended to be a beneficiary of or may rely on this Agreement unless expressly stated herein.
13.4. No delay or omission by Host or Benevity in exercising any right or remedy contained in this Agreement will operate as a waiver of any of such rights and remedies nor shall it be interpreted as such. Either or both of Host and Benevity may, in its sole discretion, deviate from the strict observance, performance or compliance by you of any terms and conditions of this Agreement. Such deviations will not alter, affect or prejudice any of Host’s or Benevity’s other rights or remedies and will only be effective in the specific instance and for the specific purpose for which it was given and will be deemed not to be a waiver of any other of Host’s or Benevity’s rights or remedies as a result of any other breach of this Agreement.
13.5. You agree to hold Host, Benevity, the Foundation and their respective directors, officers, agents, employees, affiliates, successors and assigns (collectively, the “Indemnitees”) harmless from and against all liability, causes of action, tax liability, penalties, costs and claims, and will reimburse the Indemnitees’ reasonable and actual expenses incurred in connection therewith (including legal fees and costs), arising from or related to your participation in any Donation Program including, but not limited to, any breach by you of this Donation Platform Agreement or any fraud, misrepresentation or abuse committed by you in connection with your participation in any Donation Program or any other person using your Donation Credits or Personal Foundation.
13.6. It is your responsibility to promptly advise Host of any changes to your mailing and email addresses or other contact information by making the necessary changes to the information provided by you at the Site.
13.7. Benevity is not affiliated in any manner with any Program Originators or Eligible Charities and is not agent, representative or employee of any of them, and no such party has the power to obligate or bind the other. Donation Program Agreements, this Agreement and any other Site Documents are each independent of the others. Neither Benevity nor Host makes any representation as to any agreement other than this Agreement or as to any Program Originator or Eligible Charity and neither offers, endorses, nor guarantees any of the goods, services, information or recommendations provided by third parties to you in respect of any Program Originator or Eligible Charity.
13.8. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER HOST NOR BENEVITY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO YOU IN CONNECTION WITH THE BENEVITY PLATFORM, ANY DONATION PROGRAM, ANY PROGRAM ORIGINATOR, OR ANY ELIGIBLE CHARITY. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE OR OTHER HOST ENVIRONMENT AND YOUR RELIANCE THEREON.
13.9. Notwithstanding the governing law of any agreement between you and Host or other Program Originator, this Agreement shall be governed by the laws applicable in the State of Ohio, and you hereby agree irrevocably to consent to the jurisdiction of the State of Ohio. Any interpretation, question or dispute regarding a Donation Program or this Donation Platform Agreement will be resolved at the sole discretion of Host or Benevity, as the case may be. In no event will Host’s liability with respect to the Host Donation Program be greater than the value of Donation Credits in your favor at the time the dispute arose. If any provision of this Agreement is invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of this Agreement.
13.10. This Agreement constitutes the entire agreement between you and Benevity regarding your utilization of the Benevity Platform in the Host Environment.
13.11. You consent to the formation of contractual relations through electronic communications.