These terms of service (the “Terms of Service”) govern the provision of the System and Services as described below by Benevity, Inc. (“Benevity”) to the client listed in the relevant Order Form, as described below (the “Client”). These Terms of Service are effective as of the date specified in the relevant Order Form.
The following capitalized terms shall have the following meanings whenever used in these Terms of Service.
1.1 “Acceptable Use Policy” means Benevity’s standard acceptable use policy for End Users of applicable Benevity products.
1.2 “Agreement” means these Terms of Service, together with the Supplementary Documents.
1.3 “Client Data” means data in electronic form inputted by or collected from Client and End Users via the System, including, without limitation, Personal Information.
1.4 “End User” means any employee or consultant of Client, or any other individual approved by Client, who is authorized to use the System through Client’s System-access account or through a publicly available instance of Client’s System-access account.
1.5 “Intellectual Property” or “Intellectual Property Rights” means, collectively, patents, trade secrets, copyrights, trademarks, moral rights, databases, inventions, or improvements in any of the foregoing, and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) know-how and Confidential Information; (iv) applications, extensions and renewals in relation to any of these rights, in each case now existing or hereafter developed during the Term.
1.6 “Order Form” means an executed order form (which may be amended from time to time upon the Parties’ mutual written consent), to which these Terms of Service are incorporated by reference, allowing Client to access certain aspects of the System and listing the Services which will be provided by Benevity to Client.
1.7 “Party” means either Benevity or Client, as applicable, and “Parties” means, collectively, Benevity and Client.
1.8 “Personal Information” means information about an identifiable individual as more particularly described in any applicable privacy laws, but will in any case include names, addresses, telephone numbers, e-mail addresses, demographic information, and any form of personally identifiable information.
1.10 “Software and Service Information” means Benevity’s standard documentation governing Client’s access to and use of the System available online here.
1.11 “Services” means those services provided by Benevity to Client from time to time under the applicable Order Form, all in accordance with these Terms of Service and as described in the Software and Service Information.
1.12 “Supplementary Documents” means, collectively, the Order Form and the Software and Service Information.
1.13 “System” means Benevity’s proprietary cloud-based software-as-a-service software for enabling workplace pro-social programs, including without limitation workplace giving, volunteering and grants management, all as more particularly described in the Software and Service Information.
1.14 “Term” is defined in Section 13.1 below. 2.
2. The System.
2.1 Access and Use of the System. During the Term, Client may access and use those aspects, features and functions of the System listed in any applicable Order Form pursuant to the terms of the Agreement.
2.2 Additional Services. Benevity will provide the Services set forth in the applicable Order Form. If agreed to by Benevity and documented in the Order Form (including any written amendment to the Order Form), Benevity may provide additional managed services on such terms and conditions set out in such Order Form.
2.3 Support and Maintenance. Benevity shall provide Client with industry standard support and maintenance for Client’s use of the System, as described in the Software and Service Information.
2.4 System Upgrades and Updates. Benevity may upgrade or update System features and functionality at any time, including without limitation, by removing System features and functions. Benevity will provide Client with thirty (30) days advance notice of any update to the System that materially and negatively reduces functionality provided to Client pursuant to an Order Form. Benevity will provide Client with advance notice of any update to the System that materially (but not necessarily negatively) changes functionality provided to Client pursuant to an Order Form. Subject to the support and maintenance obligations of Benevity as set forth in the Software and Service Information, Benevity reserves the right to suspend the operation of the System or Services at any time for maintenance and testing purposes on reasonable notice to Client and for reasonable durations and at reasonable times.
Client will pay all fees set forth in the Order Form. All such fees shall be due and payable in full as of the date(s) set forth in the Order Form, and are non-refundable.
4. Client Data & Privacy.
4.1 Use of Client Data. Unless it receives Client’s (or, as applicable with respect to End User’s Personal Information, the End User’s) consent, Benevity shall not access, process, or otherwise use Client Data other than in connection with the provision of the Services and to facilitate Client’s use and access to the System. Notwithstanding the foregoing, Benevity may disclose Client Data as required by applicable law or by proper legal or governmental authority. Unless prohibited by law, Benevity shall give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense.
4.2 Aggregate & Anonymized Data. Notwithstanding the above Section 4.1, nothing in the Agreement shall restrict Benevity’s use, disclosure, reproduction, sale or publicity of any data that is aggregated with other anonymized data of a similar nature from other clients of Benevity in a manner that makes it unidentifiable as Personal Information or data relating to Client.
4.3 Personal Information Security Standards. Benevity will follow industry standard protocols and standards with respect to maintaining the security and privacy of Personal Information, as described in the Software and Service Information.
4.5 Data Accuracy. Benevity shall have no responsibility or liability for the accuracy of data uploaded to the System by Client or End Users, including without limitation Client Data and Personal Information.
5. Client's Responsibilities & Restrictions.
5.1 Acceptable Usage. Client shall not: (a) provide System passwords or other log-in information to any third party; (b) share non-public System features or content with any third party; or (c) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that Benevity suspects that any breach of this Section 5.1 has occurred, including without limitation by End Users, Benevity may suspend Client’s or the particular End User’s access to the System immediately upon notice, in addition to such other remedies as Benevity may have. Client acknowledges that End Users are required to comply with the Acceptable Use Policy when using applicable Benevity products.
5.2 Client Content. Client will submit to Benevity all information and content in Client’s control (the “Client Content”) necessary for Benevity to perform the Services. Client is responsible for the accuracy of any and all Client Content that it submits to Benevity. Client acknowledges that Client’s timely cooperation, and suitably configured computer products, are essential to Benevity’s performance of the Services.
5.3 Unauthorized Access. Client shall notify Benevity immediately of any known or suspected unauthorized use of the System or breach of its security and shall cooperate with Benevity in an attempt to stop any such breach.
5.4 End Users & System Access. Client is responsible and liable for: (a) End Users’ access and use of the System; and (b) any access or use of the System through Client’s account, whether authorized or unauthorized, unless unauthorized access occurred due to Benevity’s own fault or negligence.
6. Intellectual Property.
6.1 Access and Use of the System. Client recognizes that the System is comprised of web-based hosted software-as-a-service and that it is protected by copyright and other Intellectual Property laws. Subject to the terms of the Agreement, Benevity grants Client a non-assignable (except as provided in the Agreement), non-exclusive, non-sublicensable, royalty-free, worldwide license to access and use the System, in accordance with the Agreement, for the Term and any transition assistance period described in Section 13.4 of these Terms of Service, as applicable.
6.2 Restrictions. Except as explicitly permitted in the Agreement, Client will not, and will not authorize any other party to: (a) modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the System or of any of Benevity’s other Intellectual Property; (b) assign, sublicense, pledge, lease, rent, sell, transfer, copy, distribute commercially or otherwise grant rights in any of Benevity’s Intellectual Property; (c) modify, make, sell or create unlicensed derivative works based upon Benevity’s Intellectual Property or otherwise commercially exploit any of Benevity’s Intellectual Property; or (d) remove any product identification, copyright, trademark or other notice which may appear on or in connection with Benevity’s products or Services. Furthermore, Client agrees to use the Services solely for its internal business purposes as contemplated by the Agreement. Except for, and subject to the limited rights expressly granted in the Agreement for Client to utilize the System and the Services, Benevity reserves all rights, title and interest in and to the System and the Services, including all related Intellectual Property Rights. No other rights are granted to Client under the Agreement other than as may be expressly set forth in the Agreement.
6.3 Ownership. The Agreement does not transfer from Benevity to Client the ownership of any Benevity Intellectual Property Rights or any Benevity Confidential Information. All ownership of the Benevity Intellectual Property Rights (including without limitation, the System) and Benevity Confidential Information will remain solely with Benevity. Similarly, the Agreement does not transfer from Client to Benevity any ownership of Client Intellectual Property Rights or Client Confidential Information, and all ownership of Client Intellectual Property Rights and Client Confidential Information will remain solely with Client.
6.4 Reservation of Intellectual Property Rights. Other than as expressly set forth in the Agreement, no license or other rights in the Benevity Intellectual Property Rights are granted to Client and all such rights are hereby expressly reserved by Benevity.
6.5 Additional Rights. Benevity will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the System and Services any suggestions, enhancement requests, recommendations or other feedback provided by anyone, including but not limited to Client and End Users relating to the operation of the System and Services. Furthermore, Benevity will also retain or be assigned all right, title and interest to any improvement, customization or integration work based on Benevity’s Intellectual Property Rights.
7. Confidential Information.
7.1 “Confidential Information” refers to the following items one Party (the “Disclosing Party”) discloses to the other (the “Receiving Party”): (a) any document marked “Confidential”; (b) any information the Disclosing Party orally designates as “Confidential” at the time of disclosure, provided that the Disclosing Party confirms such designation in writing within 30 business days; (c) the Software and Service Information; and (d) information that reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (i) was rightfully in the Receiving Party’s possession at the time of disclosure as shown by the Receiving Party’s written records, unless such information was subject to a confidentiality restriction at the time it was originally disclosed; (ii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s action or inaction.
7.2 Non-disclosure. The Receiving Party shall not use Confidential Information for any purpose other than in connection with its performance of its rights and obligations under the Agreement (the “Purpose”). The Receiving Party: (a) shall not disclose the Disclosing Party’s Confidential Information to any of its employees, contractors and/or advisors unless such person or party needs access in order to facilitate the Purpose and is bound by confidentiality obligations with terms no less restrictive than those of this Section 7; and (b) shall not disclose the Disclosing Party’s Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party shall protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to its attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
7.3 Injunction. Both Parties agree that breach of this Section 7 would cause the other Party irreparable harm, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, either Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4 Termination & Return. Upon termination of the Agreement, the Receiving Party shall return or certify the destruction of all copies of Confidential Information to the Disclosing Party.
8. Representations & Warranties.
8.1 Validity and Infringement. Benevity represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in the Agreement without the further consent of any third party, and that the System does not violate, infringe or misappropriate any third party Intellectual Property Rights. Benevity’s representations and warranties in the preceding sentence do not apply to use of the System by Client or End Users in combination with hardware or software not provided by Benevity. In the event of a breach of the warranty in this Section 8.1, Benevity, at its own expense, will promptly take at least one of the following actions: (a) secure for Client the right to continue using the System; (b) replace or modify the System to make it noninfringing while still providing substantially the equivalent functionality; or (c) if Benevity determinates that it is unable to take the actions outlined in sub-clauses (a) and/or (b) above through commercially reasonable efforts, terminate the Agreement, together with Client’s right to access and use the System and provide a pro-rated refund to Client (i.e. a refund of those fees that were prepaid by Client in respect of the period following such termination). Other than for Benevity’s obligations to provide indemnity where applicable, the preceding sentence states Benevity’s sole obligation and liability, and Client’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual Intellectual Property infringement by the System.
8.2 Services by Benevity. Benevity represents and warrants that: (i) the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards; (ii) that the Services and the System will substantially conform to the specifications set forth in the description of the Services and the System contained in the Agreement; provided, however, that as a condition of such conformance, the Services and the System must be used in the infrastructure and manner for which they were designed as designated by Benevity, and in compliance with the Agreement. In the event of material nonconformities to the description of the Services and the System contained in the Agreement, Benevity, at its own expense, will use commercially reasonable efforts to correct any such non-conformities in the Services or the System, as applicable. If Benevity determines that it is unable to correct the non-conformities through commercially reasonable efforts, Benevity will, as its sole obligation with respect to such non-conformities, upon Client’s written request, terminate Client’s rights to access or use the non-conforming Services or System and equitably adjust the fees for the Services or System impacted by such termination. This Section 8.2 states Benevity’s sole obligation and liability, and Client’s sole remedy, for breach of the warranty in this Section 8.2. For clarity, Client is solely responsible for providing, at its own expense, all network access to the System and the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the System and the Services.
8.3 Generally. Each Party represents and warrants that: (i) it will at all times comply with all applicable laws and regulations in the performance of the Agreement; (ii) the execution, delivery and performance of the Agreement have been duly authorized by all appropriate corporate action of such Party and the Agreement constitutes a valid, binding and enforceable obligation; and (iii) neither the execution, delivery, nor performance of the Agreement will conflict with or violate any other agreement, license, contract, instrument or other commitment or arrangement to which such Party is bound.
8.4. Warranty Disclaimers. EXCEPT TO THE EXTENT SET FORTH IN THIS SECTION 8, CLIENT ACCEPTS THE SYSTEM AND SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
9.1 Benevity Indemnity. Benevity will indemnify, defend, and hold harmless Client, its applicable affiliates, and their respective officers, directors, shareholders, employees and agents (each, a “Client Indemnitee”) from and against all claims, suits, actions or proceedings (each, a “Claim”), asserted by any third party against Client or a Client Indemnitee for any actual or alleged: (a) infringement by Benevity and/or its employees, agents or subcontractors of any Intellectual Property Right of that third party, or misappropriation or unauthorized use or disclosure by Benevity and/or its employees, agents or subcontractors of any trade secret of that third party; (b) fraud or gross negligence by Benevity and/or its employees, agents or subcontractors; (c) intentional misconduct by Benevity and/or its employees, agents or subcontractors; and (d) violation of any applicable laws by Benevity or its employees, agents or subcontractors; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding, judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise.
9.2 Client Indemnity. Client will indemnify, defend, and hold harmless Benevity, its applicable affiliates, and their respective officers, directors, shareholders, employees and agents (each, a “Benevity Indemnitee”) from and against all Claims asserted by any third party against Benevity or a Benevity Indemnitee for any actual or alleged: (a) fraud or gross negligent by Client and/or End Users; (b) intentional misconduct by Client and/or End Users; and (c) violation of any applicable laws by Client or End Users; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding, judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise.
9.3 Indemnification Process. The obligations of indemnification under these Terms of Service are subject to the condition that the indemnified party give the indemnifying party: (1) prompt written notice of any actual or threatened Claim for which indemnity may be sought; (2) at the indemnifying party’s option, sole control of the defense and settlement thereof; provided however, that the indemnifying party’s rights under this Section 9.3 are contingent on its agreement that it will not settle any Claim without the indemnified party’s prior written consent unless that settlement includes a full and final release of all Claims against the indemnified party and does not impose any material obligations on the indemnified party, other than the obligation to cease using the affected software, goods, services or other applicable items provided by the indemnifying party; and (3) reasonable information and cooperation in the defense and settlement of the indemnified matter. The indemnified party may, at its own expense, participate in the defense and settlement of a Claim with counsel of its own choosing.
9.4 Exceptions. The indemnification obligations described in these Terms of Service will not apply to a Claim to the extent that the Claim was caused by: (a) the indemnified party’s negligent acts or omissions; (b) the indemnified party’s breach of any representation, warranty, covenant or provision in the Agreement; (c) the indemnified party’s willful misconduct; and/or (d) the indemnified party’s violation of any applicable law. Furthermore, Benevity’s indemnification obligations described in these Terms of Service will not apply to a Claim to the extent that the Claim was caused by: (a) Benevity’s compliance with specifications or detailed written instructions submitted by Client or by a Client Indemnitee, but only if the Claim would not have arisen but for that compliance; (b) modification of the System or Services by Client or by a Client Indemnitee without Benevity’s written consent or direction; (c) the combination of the System or Services by Client or by a Client Indemnitee with any goods or services not provided by Benevity; and/or (d) the continued use by Client or by a Client Indemnitee of the System or Services after Client being notified by Benevity that such System or Services may be infringing.
9.5 Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any type of Claim or threatened Claim described in this Section 9.
10. Limitation of Liability.
10.1 Limitation of Liability. Except for: (i) the indemnification obligations set out in section 9; (ii) a breach of the personal information security standards set out in section 4.3; (iii) a breach of the confidentiality obligations set out in section 7; (iv) client’s obligations to pay the fees properly incurred under the agreement; or (v) fraud or willful misconduct, in no event will a party’s liability to the other exceed the fees paid by client for the services during the twelve (12) month period preceding the occurrence of the event or dispute which gave rise to the applicable claim for damages.
10.2 Exclusion of Consequential Damages. In no event will either party be liable to the other party for any consequential, indirect, special, incidental, or punitive damages arising out of or related to the agreement.
10.3 Clarifications & Disclaimers. The liabilities limited by this section 10 apply to liability regardless of the form of action, whether in contract, tort, strict product liability, negligence, or otherwise, even if a party is advised in advance of the possibility of the damages in question and even if such damages were foreseeable and even if a party’s remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Section 10, the applicable Party’s liability will be limited to the maximum extent permissible. The liability limits and other rights set forth in this Section 10 apply likewise to a Party’s affiliates, licensors, suppliers, advertisers, agents, sponsors, third party charitable foundations, directors, officers, employees, consultants, and other representatives.
11.1 Records; Audit. Client will have the right, once per year, at any reasonable time during regular business hours during the Term of the Agreement and upon thirty (30) days’ prior written notice to Benevity, to audit (or cause its designated representatives to audit) Benevity’s records to: (i) verify the accuracy of the fees charged under the Agreement and to detect billing errors, duplicate billing, unpaid donations, or errors in processing or documentation; and (ii) otherwise verify compliance with the Agreement. Benevity agrees to cooperate with Client and its designated representatives in connection with any such audit and will provide to Client and its designated representatives such assistance as they may reasonably require in that regard subject to reimbursement on a time and materials basis for such assistance. Any such audit will be conducted at Client's own cost and expense and in a manner designed to minimize intrusion and business interruption and maintain confidentiality.
11.2 Records Retention. Benevity will maintain complete and accurate records of all applicable transactions, during the Term and for a period of six (6) years following termination of the Agreement, regardless of the reason for termination.
Benevity will, at its own expense, obtain and maintain appropriate industry-standard levels of insurance, as determined by Benevity, to protect Client’s interests and obligations connected with performance under these Terms of Service. Benevity will within thirty (30) days of Client’s written request, provide Client with a certificate of insurance evidencing such coverage, provided that the existence of such coverage shall in no way expand or limit Benevity’s liability hereunder.
13. Term & Termination.
13.1 Term. The term of the Agreement shall commence on the Effective Date (as set forth in the Order Form) and continue for the period set forth in the Order Form or, if none, for two (2) years. Thereafter, the term will automatically renew for successive one (1) year periods, unless either Party refuses such renewal by providing written notice to the other Party at least 60 days prior to the upcoming renewal date (collectively, the “Term”). As well, Client may terminate the Agreement at any time for any reason by providing Benevity with ninety (90) days advance written notice.
13.2 Default. In the event that any Party: (i) defaults in the performance of any of its material duties or obligations under the Agreement and does not substantially cure such default, if the default is capable of being cured, within thirty (30) business days after being given written notice specifying the default, or (ii) materially breaches the Agreement in a manner that cannot be remedied, such as a material breach of the Parties’ data privacy or confidentiality restriction obligations, or (iii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business, the non-defaulting Party may, by giving written notice to the defaulting Party, terminate the Agreement for cause.
13.3 Effects of Termination. For clarity, upon termination of the Agreement, any Order Form then in effect between the Parties shall also automatically terminate, and Client shall cease all use of the System, subject to Section 13.4. The following provisions will survive termination or expiration of the Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) the following Sections of these Terms of Service: 7 (Confidential Information), 8.4 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability) and 13.4 (Transition Assistance); and (c) any other provisions of the Agreement that, by their nature, are intended to survive the termination or expiration of the Agreement.
13.4 Transition Assistance. Upon Client’s request during the Termination Assistance Period (as defined below), Benevity will provide Termination Assistance Services (as defined below) at Benevity’s reasonable rates then in effect for such services in order to minimize the disruption to Client’s business operations as a result of the expiration or termination of the Agreement. The Parties will reasonably cooperate with one another in good faith and in a timely manner so as to ensure an orderly transition of services to Client or another service provider. “Termination Assistance Period” means a period of time during which Benevity will provide the Termination Assistance Services, commencing on the date a determination is made pursuant to the Agreement that there will be an expiration or termination of the Agreement and continuing for (i) up to six (6) months (as designated by Client) after the expiration or termination of the Agreement, and (ii) at the end of such six (6) month period, any additional period agreed to in writing by Benevity. “Termination Assistance Services” means (i) a continuation of the Services and access to and use of the System, to the extent Client requests such Services during the Termination Assistance Period, and (ii) Benevity’s reasonable cooperation with Client or another service provider designated by Client in facilitating the transfer of services to Client or such other service provider.
14.1 Independent Contractors. Benevity and Client are independent principals in all relationships and actions under and contemplated by the Agreement. The Agreement will not be construed to create any employment relationship, partnership, joint venture, or agency relationship between or among the Parties or to authorize any Party to enter into any commitment or agreement binding on the other Party, except as specifically provided in the Agreement.
14.2 Subcontractors. Benevity may engage subcontractors to perform any of its obligations under the Agreement, provided however that any such subcontracting will not release Benevity from its responsibility for its obligations under the Agreement, and Benevity will be responsible for the work and activities of such subcontractors, including their compliance with the terms and conditions of the Agreement.
14.3 No Exclusivity. The Parties have no exclusivity obligation of any kind or nature to the other in connection with the subject matter of the Agreement, and neither Party is prevented from entering into agreements with third parties that are similar to the Agreement.
14.4 Notices. Each Party may send notices pursuant to the Agreement to the other Party’s physical address and/or email address as set forth in an Order Form (or to such other addresses which any Party will designate in writing to the other Party in accordance with this Section), and such notice will be delivered personally or sent by certified mail (postage prepaid, return receipt requested), by a recognized overnight courier, or via email. A notice sent to a physical address in accordance with this Section will be deemed received on the date of delivery or, if sent by certified mail, on the earlier of the other Party’s receipt of it or the third business day after mailing it. A notice sent via email in accordance with this Section will be deemed received on the following business day after it is sent.
14.5 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
14.6 Assignment & Successors. No Party to the Agreement may assign its rights or obligations under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. This provision will not apply in the case of: (a) the sale of all of the stock or substantially all of the assets of a Party, (b) a merger or corporate reorganization of a Party, in either case, where the obligations under the Agreement are assumed by the successor entity, or (c) an assignment to an affiliate of a Party, provided that in the case of such assignment to Client’s affiliate, the entity is not a direct or indirect competitor of Benevity. Subject to this Section 14.6, the Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
14.7 Severability. If any provision of the Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of the Agreement will continue in full force and effect.
14.8 No Waiver. Neither Party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
14.9 Choice of Law & Jurisdiction: The Agreement will be governed solely by the internal laws of the State of New York, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; or (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York.
14.10 Construction. Each Party acknowledges that it has read and reviewed the Agreement in its entirety, and has agreed to all of its terms. The Parties agree that the Agreement will not be construed in favor of or against either Party by reason of such Party having been the drafter of the Agreement.
14.11 Entire Agreement. The Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among the Parties relating to the subject matter of the Agreement and all past dealing or industry custom. Each of the Supplementary Documents are hereby incorporated by reference into these Terms of Service as if fully stated in these Terms of Service. In the event of any inconsistency or conflict between the terms and conditions of these Terms of Service and any term or condition of any Supplementary Document, the terms and conditions of these Terms of Service will govern and control, other than to the extent that the applicable Supplementary Document explicitly states that it supersedes regarding a given matter.