Copyright © 2017 Benevity, Inc. All rights reserved.
This Software and Service Information document has been provided to the Client in connection with the execution of a valid Order Form. No part of this document may be reproduced or transmitted by the Client for any purpose, other than for purposes of the Client’s internal use of the System and Services as authorized in a valid Order Form. Capitalized terms used in this Software and Services Information document will have the meanings described in Schedule A herein, unless defined elsewhere in this document or in Benevity’s Terms of Service available online here.
Software and Service Information for Spark
Welcome to Spark, Benevity’s workplace giving and volunteering software solution. Through Spark, Participants will be able to make donations of money or track volunteer time in respect of the charitable causes that are available in the Benevity Causes Portal. The below describes some of the product features and functionality of Spark, the associated services and applicable fees. The Spark product will only be made available to the Client if so indicated in an applicable Order Form.
There are several ways to make donations through Spark. Depending upon the nature and mechanics of the Client Integration, Spark may allow for: (a) donations made by a Participant using its own funds through Spark (such as via a credit card, PayPal or payroll deduction) (a “Direct Gift”); (b) donations made as part of a Matching Program funded by Client or Matching Partners (a “Matching Gift”); and/or (c) an arrangement under which a Spark End User is afforded the right to provide Donor Advice respecting a donation made by Client or other Participant (such as a charitable gift card, “dollars for doers” grant or some Matching Gifts) (a “Donor Advice Gift”).
B. Product Information
Benevity utilizes donor advised funds held by registered charities in certain countries (“Foundations”) so that donation funds can be aggregated and disbursed via the Benevity Platform (arrangements that are substantially equivalent to donor advised funds may be used by Benevity in certain countries outside of the US). As is required under applicable laws and customary for the utilization of donor advised funds, donation disbursements made by the Foundation are subject to receiving advice from Spark End Users or Participants as to the chosen Eligible Charity(ies) (“Donor Advice”) and to the approval of such advice by the Foundation. Donor Advice is provided when a donation has been made via Spark and a Participant has chosen an Eligible Charity from the Eligible Charity Database to receive a distribution from the Foundation. The Client Integration will have one or more localized “instances” of Spark, each corresponding to a Specified Country, set forth in the Order Form. Additional Specified Countries may be added upon the Parties’ mutual agreement. If indicated in the Order Form, the Client Integration will also include Cross-Border Donation functionality for cross-border donations, as described below.
The list of Foundations currently being utilized by Benevity is as follows:
*Benevity may replace any Foundation with a different Foundation, at any time upon notice to the Client.
Special Circumstances. In circumstances where: (i) Donor Advice is not provided by a Participant within the time specified in the relevant Giving Program and in any event within 12 months following December 31 of the year of the Donation Date of such Donation Funds; (ii) an Eligible Charity requested by a Participant as part of Donor Advice is (x) no longer registered or in good standing with applicable tax laws or other relevant regulatory agency, or (y) is otherwise no longer in the Eligible Charity Database; or (iii) the Foundation, exercising its discretion as the sponsoring organization of a donor advised fund or equivalent arrangement, chooses to decline to follow the Donor Advice, then the relevant Foundation will make the determination of the Eligible Charity to which such donation will be made. In making such determination of the Eligible Charity to which such donation will be made, the Foundation is legally entitled to exercise its discretion but Benevity will endeavor to cause each Foundation to use reasonable commercial efforts to collaborate with Client and any relevant Participant to provide alternative Donor Advice or otherwise achieve a satisfactory outcome. It is acknowledged that, consistent with the legal requirements of a donor advised fund or equivalent arrangement, the respective Foundations own the property in the Donation Funds as of the Donation Date, and are not legally obliged to follow the Donor Advice.
Donation Funding Process
Donor Credit Allocation Reports. The Benevity Platform will generate and electronically submit to Client a monthly report (the “Donor Credit Allocation Report” or “DCAR”) which will identify (i) the donation amounts allocated to Participant accounts within the Client Integration for the preceding month; and (ii) the corresponding amount required to be transferred by or on behalf of Client and other Participants to the relevant Foundation(s) (the “Donation Funding Amount”). Separate DCAR(s) will be provided to Client in respect of each Specified Country. The Donation Funding Amount will be transferred by the Client to the respective Foundation(s), in the currency of the Specified Country via direct debit or EFT/ACH, within ten (10) Business Days following the Client’s receipt of the DCAR. Client may also choose, in its sole discretion, to make payment(s) of donations to the Foundation on account of future Donation Funding Amounts, in advance of the DCAR funding date (the “Float Fund”). The intent of the Float Fund is to facilitate disbursement within a timely fashion and to provide the Foundation with a sufficient balance of funds from which it will cover Donation Funding Amounts to be distributed to Eligible Charities for future periods. If the Client chooses to transfer Float Funds to the Foundation, then the Parties will discuss and agree upon the timing, amounts and other details regarding such transfer of Float Funds. From the applicable Donation Date and until the actual transfer of the Donation Funding Amount to the Foundation(s), Client agrees to hold funds representing the applicable Donation Funding Amount as limited agent for, and on behalf of, the respective Foundations (the “Agency Property”). Client may commingle the Donation Funding Amount with any other property or assets until transferred.
Non-Payment of Funds. In circumstances where: (i) Client has not provided any required Donation Funding Amount or other Participant or Merchant Account provider has not provided any required Donation Funds; or (ii) a bankruptcy or other administrative or legal process or administrative action affecting Client or any other Participant compels a Foundation to return any Donation Funds, no donation can be deemed effected and no receipt validly issued unless and until unrestricted funds representing the allocated Donation Funds are transferred to such Foundation. Benevity reserves the right to void or cancel any receipt or donation confirmation that has been improperly issued under the Benevity Platform for any reason, and will provide notice of any such event to Client. Client agrees to make reasonable commercial efforts to provide notice of any such event to the relevant Participant.
Funds Transfer to Charities. Benevity will cause the respective Foundations to make a monthly transfer of the Donation Funds (less applicable deductions of Charity Support Fees and Merchant Fees, as such terms are defined below) to the respective Eligible Charities, either by EFT/ACH or manual check, provided that: (i) none of the Special Circumstances apply; (ii) the Manual Check Threshold (as defined below) has been met, if applicable; and (iii) all amounts owing by Client, Merchant Account providers or other Participants in respect of Donation Funds have been transferred to the applicable Foundations.
Generally. Notwithstanding anything to the contrary set forth in the Agreement, if a valid Order Form indicates that the Client’s applicable Giving Program and Client Integration are set up to allow Participants to provide Donor Advice in favor of certain International Charities (as defined below) and/or certain non-profit organizations which are not registered charities (the “Non-Profit Organizations”), then a separate Foundation (currently, the UK Online Giving Foundation) will be involved in processing the donations which are subject to such Donor Advice (the “Cross-Border Donations”). The applicable Donation Funds for Cross-Border Donations will be provided by the Participants to such Foundation, and then disbursed to International Charities and/or Non-Profit Organizations by such Foundation subject to the applicable Donor Advice and in accordance with all other applicable terms of this Software and Service Information document (including, without limitation, the Special Circumstances), and Participants will receive proof of payment of Donation Funds via a URL (PDF), by email (PDF attachment) or via the user interface of Spark. Cross-Border Donations will not typically represent a tax receiptable donation to a Foundation or to an International Charity or Non-Profit Organization. For further clarity, it is acknowledged that Non-Profit Organizations are not Eligible Charities. Other than as set forth in this section, Cross-Border Donations will be subject to substantively the same provisions that are applicable to the Donation Funds provided to the other Foundations. The timing and mechanics of Cross-Border Donations (including, without limitation, use of a DCAR, funding dates, Donor Advice, and deductions for Charity Support Fees and Merchant Fees) will generally be dealt with as described elsewhere in this Software and Service Information document, subject to the differences outlined above in this section. The list of International Charities and Non-Profit Organizations presented to Participants will be determined by Benevity at its discretion. An “International Charity” is defined as (i) an Eligible Charity that is located and/or registered in a country outside of the Specified Country(ies) listed in the applicable Order Form and/or (ii) an Eligible Charity that is located and/or registered in a given Specified Country, but only if the applicable Participant is using an instance of Spark that corresponds to a different Specified Country.
Additional Documentation. A Participant may choose to independently request additional documentation, such as a tax receipt, directly from the applicable International Charity, as evidence of a qualifying donation for the Participant’s tax purposes, if desired by the Participant, although Benevity does not make any assurance that such documentation will be available, it being understood that Cross-Border Donations will not typically represent a tax receiptable donation.
Manual Checks. To increase efficiencies, Benevity encourages Eligible Charities to provide electronic banking information so that they may receive electronic payment of Donation Funds. In the event that an Eligible Charity has not provided its electronic banking information, then, as an administrative convenience to the Foundations and Eligible Charities, a minimum dollar amount is required to be met before a manual check will be sent by the applicable Foundation to such Eligible Charity. Specifically, donations allocated across the entire Benevity Platform (from all of Benevity’s clients) to an Eligible Charity that has not signed up for electronic payment via the Benevity Causes Portal must equal at least US$100 (the “Manual Check Threshold”) before a check will be sent to such Eligible Charity. However, all amounts allocated to Eligible Charities that are below the Manual Check Threshold will be “swept” annually, resulting in a distribution of such amounts by check on or before the last day of February of each calendar year. In addition, if an Eligible Charity still does not enroll for electronic payments after receiving three distributions by check, then a manual check fee will be applied on future check disbursements to cover processing costs (currently, such fee is the higher of (i) US$25 per check or (ii) 7% of the amount of the check, to a maximum of US$100 per check) and will be deducted from the Donation Funds accordingly. Notwithstanding the above, checks will not typically be distributed to any Eligible Charity outside of the US or Canada, and such Eligible Charities outside of the US or Canada will typically need to sign up for electronic payment via the Benevity Causes Portal in order to receive Donation Funds. For clarity, there is no minimum disbursement threshold for electronic payment of donations.
Administrative Fees. Upon the applicable Foundation obtaining beneficial ownership of any Donation Funds (including any Matching Gifts), it will deduct a charity support fee (the “Charity Support Fee”) unless Benevity and the Client mutually agree that such fee will be paid for by the Client. The Charity Support Fee is equal to 2.9% of the Donation Funds (such percentage amount may be modified upon the Parties’ mutual consent). For donations made via the Merchant Account, the applicable Merchant Account charges (the “Merchant Fees”) will be deducted from the Donation Funds, unless Benevity and the Client mutually agree that such fee will be paid for by the Client. The Merchant Fees currently charged by the payment processor for the Benevity Platform are a blended rate of 2.4% plus $.30 per transaction. Where applicable, PayPal fees are currently 1.9% plus $.30 per transaction. Such amounts may change. Charity Support Fees and Merchant Fees do not reduce the taxable deduction of the donation to the Spark End User, but are netted off from the Donation Funds received by the Foundation, and such amounts are therefore deducted from amounts distributed to Eligible Charities (unless Benevity and the Client mutually agree that such fee(s) will be paid for by the Client).
Reversals: Donation Funds are non-refundable, except with the express written consent of the relevant Foundation and Benevity. In the event of a transaction reversal requested by the Client, a reasonable administrative fee may be charged in an amount not to exceed $250 per reversal. If there is a charge-back in respect of any transaction made via the Merchant Account, then the amount of any such charge-back will be paid for by the Client in the case of a shortfall of the Donation Funds, unless the Client has obtained consent for such reversal from Benevity and the relevant Foundation.
Tax Effect. Donations made via Spark will often represent a tax receiptable donation to the applicable Foundation and Spark will then typically enable the generation of a corresponding tax receipt from the applicable Foundation. If the applicable Foundation determines that a donation is not properly receiptable by it under applicable tax laws, then a tax receipt may not be provided. For example, where a donation is made by a Participant who does not reside in the relevant Specified Country (for the purposes of applicable tax laws), such transaction will generally be a non-receiptable donation, regardless of whether tax or other acknowledgements are provided through the Benevity Platform. Cross-Border Donations will not typically represent a tax receiptable donation. In no event will Benevity or any Foundation be responsible or liable for direct or indirect damages resulting from any tax, interest, fines, damages, penalties, reassessments or other levies imposed on any Participant by any taxing authority (governmental or otherwise) arising from or in connection with any Giving Program or the use of the Benevity Platform, whether through the Client use of Spark or otherwise. Benevity has not provided and does not provide any tax advice.
No Tax Liability: Benevity makes no representation or warranty as to the legitimacy and legality of any particular Eligible Charity listed in the Eligible Charity Database, it being understood that the Eligible Charity Database is based upon a listing provided and updated by the applicable charity regulatory agencies in the Specified Countries and/or in other countries, as applicable. Further, the issuance of a tax receipt or other acknowledgement through the Benevity Platform or by a Foundation does not represent confirmation, assurance or opinion that the transaction giving rise to such receipt represents a tax credit or deduction respecting any Participant, and all Participants must rely on their own tax and accounting advice respecting all such matters. Without limiting any other term of the Agreement, it is acknowledged that: (a) donation functionality and tracking through Spark and the Benevity Platform are delivered, accessed and updated over the internet; (b) Spark and the Benevity Platform are created and distributed by Benevity consistent with industry standards which may not address all problems associated with the delivery of software and functionality via the internet; (c) the Foundations are receiving and directing Donation Funds to Eligible Charities (subject to acceptance of Donor Advice) in accordance with industry practice in their Specified Country, as applicable; (d) congestion over the internet, data delay and Client’s own network configuration and data security practices may slow or impact the performance of or access to the Client Integration; and (e) the creditworthiness of Spark End Users and the approval and completion of financial transactions by the Merchant Account provider are outside the scope of influence of the Benevity Platform or any Foundation.
Acceptable Use Policy. Benevity’s standard Acceptable Use Policy will be agreed to by Spark End Users prior to utilizing Spark. Benevity will notify Client at least ninety (90) days in advance of any reasonable material amendments that it would like to be made to the Acceptable Use Policy. If any Spark End User or other individual Participant utilizes Spark in violation of the Acceptable User Policy (or in violation of the Agreement), Benevity may immediately suspend such Spark End User’s or Participant’s access to Spark.
Set-Up Fee. Client agrees to pay the set-up fee set forth in the Order Form for implementation of Spark for the Client Integration (the “Set-Up Fee for Spark”), payable in full upon the effective date of the Order Form (the “Effective Date”). The Set-Up Fee for Spark is based on an estimate of hours of Services required to set-up and launch Spark, as determined by Benevity to be adequate for the nature of the Client Integration. If such estimated amount of hours is materially exceeded as a result of (i) the failure of Client (or its legacy vendor) to provide required information in a timely or accurate manner; (ii) extraordinary changes or requests made by Client; or (iii) as a result of Benevity complying with Client’s internal processes, then additional services required for the initial launch will be discussed, and additional fees (if any) will be agreed upon by the Parties.
Hosting Fee. Client agrees to pay a recurring annual hosting fee based on the number of Spark End Users, calculated annually (the “Hosting Fee for Spark”). The first annual Hosting Fee for Spark is set forth in the Order Form, and will be payable in full by Client to Benevity upon the Effective Date. The Hosting Fee for Spark will be payable again upon each anniversary of the Effective Date throughout the Term. Benevity reserves the right to make reasonable annual modifications to its Hosting Fee for Spark on sixty (60) days written notice to Client. For the purposes of determining the Hosting Fee for Spark for the initial year under the Order Form, Client confirms that the number of Spark End Users as of the Effective Date is accurately set forth in the Order Form.
As part of Benevity’s standard implementation for Spark, the following will be completed:
1. Discovery, Planning and Design: Understanding the Client’s workplace Giving Program and the system requirements to enable and configure Spark.
2. Configuring the Spark Site. Configuration of a Spark site for Spark End Users and a Spark site with administrative functions. This may include, but is not necessarily limited to:
- Client branding.
- Client’s Matching Program requirements.
- Specific filter criteria applicable to the Eligible Charity Database.
- Payroll deduction file formats and deduction periods for payroll processing.
- Report requirements.
- Process for tax-receipting eligible donations (e.g. record on employee’s employer prepared tax form, tax-receipts issued in Spark).
- Process for inputting Spark End Users.
- Selecting roles and permissions for Client administrators.
- Other Client preferences for configurable elements of Spark (e.g. SSO).
- Provisioning of an accessible ‘Stage’ version of Spark for the Client’s review and testing.
3. Mapping and Import of Historic Giving Data (if applicable): Standard configuration of Spark includes the mapping and import of historic giving data from the Client that is provided as a single table in a format approved by Benevity. If data clean up or preparation by Benevity is required in order to conduct the mapping and importing of historic data into Spark, then such clean up or preparation may be made available separately as a managed service for an additional fee, subject to the Parties’ mutual consent.
4. Quality Control Testing: Testing of the system to ensure operational readiness, integrity and accessibility.
5. Launch Planning and Product Training. Loading and syncing employee profiles and preparing employee notifications. Volunteer and giving campaign creation and management consulting is available separately as a managed service for an additional fee, if desired. Online and document-based training is provided and will include Spark End User and Client administrator guides, FAQs, and video tutorials.
For clarity, the features and functionality to be provided by Benevity, as listed in this Software and Service Information for Spark, include standard features and functionality generally offered by Benevity to Benevity’s other Spark clients. The provision of any features or functionality that are not currently made available by Benevity to Benevity’s other clients will be subject to additional agreement between the Parties.
E. Effect of Termination
Within thirty (30) days after the termination of the Client’s rights to use Spark or the Benevity Platform for any reason, and without derogating from any other obligations of the Parties under the Agreement: (i) Client will transfer any Agency Property held for the respective Foundations respecting Donation Funds or otherwise pay all sums remaining unpaid to the respective Foundations under the Agreement; and (ii) Client will use reasonable commercial efforts to ensure that all Participants provide Donor Advice respecting any Donation Funds that have been allocated to their account within the Benevity Platform, and failing receipt of such Donor Advice within a further ninety (90) day period, such Donation Funds will be deemed to be within the Special Circumstances.
F. Support and Maintenance
The following relates to the support and maintenance of Spark and the Benevity Platform only. For support and maintenance matters relating to the Grants Solution, please see the Software and Service Information for Grants.
Benevity will provide technical support in response to specific inquiries, as well as software maintenance by way of updates, upgrades and full version releases as applicable. In addition, Benevity will provide reasonable training support for Client administrators and users to assist with a successful implementation of Spark.
Hosting / Maintenance Services
Defined terms: The following terms have the meanings described below:
“Excused Downtime” means down time to perform Scheduled Maintenance, down time to perform maintenance or support services with respect to any separate written agreement between the Parties, and downtime caused by circumstances beyond Benevity’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those labor problems only involving Benevity employees, agents or contractors), computer, internet or telecommunications failures or delays involving hardware or software not within Benevity's possession or control, and network intrusions or denial of service attacks.
“Service Interruptions” means an inability to access Spark for more than 5 minutes, or any other problem relating to Spark End Users’ inability to access Spark to the extent caused by the performance of Spark provided such inaccessibility is not a result of any actions or inactions of Client, Spark End Users or any third parties other than Benevity’s data center provider (if any). “Service Interruptions” do not include Scheduled Maintenance.
“Scheduled Maintenance” means any scheduled outages or down time for maintenance, upgrades, enhancements or changes to Spark or the Benevity Platform.
Benevity agrees to provide the hosting-related services described below. This will include providing equipment, software and services necessary for operation and maintenance of the host computer systems, and providing services surrounding the environment itself, including power, building environment and monitoring and security services, as further described herein. Benevity’s responsibilities include:
(i) Providing bandwidth for web communication to Client and Spark End Users;
(ii) Providing a prevailing industry standard level of disaster recovery and back up services;
(iii) Providing a prevailing industry standard level of security (including logical and/or physical safeguards);
(iv) Providing information as reasonably requested regarding server capacity and network bandwidth, including reports Client may request showing saturation levels, number of hits, etc., and providing reasonable and appropriate performance benchmarks; and
(v) Otherwise providing reasonable information and prevailing industry standard hosting support services in connection with Spark, including, without limitation, providing (i) allocation and reallocation of existing storage, (ii) availability monitoring, (iii) performance monitoring, (iv) minor operating system bug fixes, (v) security patches and (vi) backups.
Benevity will use commercially reasonable efforts to make Spark available twenty-four (24) hours a day, seven (7) days a week, at least ninety-nine point five percent (99.5%) of the time as measured on a monthly basis, excluding Excused Downtime. Benevity will use reasonable commercial efforts to provide at least 2 days notice of any Scheduled Maintenance.
Benevity will provide a generic notification on the Spark login page to Spark End Users when the services are unavailable because of maintenance. All emergency outages will be promptly communicated to the Client.
Benevity is responsible for managing Service Interruptions that are within Benevity’s control, that are discovered either by the Client, other Participants or Benevity. The Client will notify Benevity of a Service Interruption via its HelpDesk phone number during normal business hours (8:00 AM to 5:00 PM MT) or at any time via email@example.com. Benevity will use commercially reasonable efforts to resolve any Service Interruption within the target turnaround time indicated for its priority level (as outlined in the table below) and to provide reasonable periodic status reports regarding Service Interruption resolution. Benevity will use priority categories to provide a consistent classification of Service Interruptions, which allows for better communication with the Client regarding the nature of the Service Interruption. The Client and Benevity will cooperate reasonably to assign an appropriate priority level for each Service Interruption.
Resolution or Workaround
Highest priority. Used for Service Interruptions, within Benevity’s control, where Spark End Users are unable to access or use Spark or when significant and substantial adverse operational impact occurs preventing any useful work from being done.
1 hour or less
four (4) hours
Used for Service Interruptions, within Benevity’s control, where Spark End Users’ production use of Spark is severely impaired or degraded preventing major functions from being performed.
2 hours or less
one (1) business day
Used for Service Interruptions, within Benevity’s control, where Spark End Users’ production use of an important (but not critical or essential) function of Spark is disabled or impaired.
4 hours or less
three (3) business days
Used for all other Service Interruptions, within Benevity’s control. Indicates that the Service Interruption causes minor adverse impact to Spark End Users’ use of Spark.
24 hours or less
As mutually agreed to by the Parties.
‘’Response Time” means the time from which the Client places the call or email until Benevity calls back or otherwise responds. “Resolution/Workaround Time” means the time from which the Client reports the problem until Benevity diagnoses the issue and provides a workaround.
Business Continuity. Benevity will, throughout the Term of the Agreement, provide and maintain a business continuity and disaster recovery plan (“Recovery Plan”) that is not materially less protective than the Recovery Plan in effect on the Effective Date, as set forth below. Benevity will promptly notify Client in writing of any material changes to the Recovery Plan, and will furnish to Client an updated version of such Recovery Plan reflecting such material changes.
Current Recovery Plan. Benevity has implemented a Recovery-as-a-Service solution (“RaaS Solution”) (offered currently by Bluelock, Inc., but which may be provided via a different service provider at Benevity’s discretion) which supports multiple, geographically separated data center locations for protection of the production infrastructure. The RaaS Solution provides a remote data center located in Las Vegas, Nevada as a recovery target for the production data center in Indianapolis, Indiana (such locations may be changed at Benevity’s discretion), and offers a 4-hour recovery time objective (“RTO”). The RaaS Solution provides the replication bandwidth and storage required to maintain the capacity to recover and power the protected workloads within the specified RTO. Benevity will monitor the production infrastructure, responding to infrastructure alerts. Replication data traffic will be routed through a secure private link between data centers. Change requests to modify replication parameters such as adding resources and virtual machines to the protected infrastructure will be issued as required. Scheduled maintenance of the replication components will be performed during a specific RaaS Solution maintenance window. The recovery functionality will be tested at least annually. Test results will be documented and available to Client for review. Client will be notified of a disaster declaration and ongoing communication will be provided until the Services are restored to normal operations.
Online Support (for Client Administrators and Spark End Users)
Benevity will provide online support services to respond to Spark End Users’ inquiries regarding Spark. Support requests can be submitted through Spark via the “Help” section. These requests are monitored and queued in Benevity’s support tracking system. Online support services are monitored 24 per day, 7 days a week with varying response time targets outside the hours of 7:00 a.m. and 6:00 p.m., MT, Monday through Friday (excluding holidays).
Telephone Support (Client Administrators only)
Benevity will make available telephone support services to respond to Client administrator inquiries regarding Spark. Telephone support service will be available to Client administrators from Benevity’s help desk, at a minimum, between the hours of 7:00 a.m. and 6:00 p.m., MT, Monday through Friday (excluding holidays). Other than during any specific campaign period specified and agreed to by the Parties (the “Campaign Period”), it is intended that the telephone support services will be focused upon Client administrators and ancillary to the online support services. During the Campaign Period (if any), Benevity may expand the hours of coverage of the telephone support services and the online support services to cover 7:00 am to 7:00 pm MT, and may enable other Spark End Users to access the telephone support services, it being understood that a bias will still be created toward channeling support requests to the online support services.
Benevity may make certain changes or modifications to the terms of this Section F upon written notice to Client, provided that such changes or modifications will not materially and negatively deviate from the support and maintenance previously provided, without the Client’s consent.
Software and Service Information for Grants
Welcome to Grants by Benevity (“Grants”), Benevity’s web-based grants management solution. Through Grants, Eligible Charities and Non-Profit Organizations will be able to apply online for financial or in-kind support from the Client, and the Client will be able to process and manage those applications effectively using the Grants product. The below describes some of the product features and functionality for Grants, the associated services and applicable fees. The Grants product will only be made available to the Client if so indicated in an applicable Order Form.
As part of Benevity’s standard implementation for Grants, the following will be completed:
1. Discovery, Planning and Design: Understanding the Client’s grantmaking programs and the system requirements to enable Grants.
2. Configuring the Grants Application Form: Configuration of a single dynamic online application form in English for Eligible Charities and Non-Profit Organizations to use when applying for support, including:
- Two main “branches” of questions for different grantmaking programs (e.g. project support, event sponsorship).
- Search functionality for Eligible Charities and Non-Profit Organizations to locate their organization with the option of manually entering organization information if needed.
- Configuring the number of grant application questions and content for questions that are displayed for each application branch, based on client program requirements.
- Relevant messaging (“hard stop” and/or “soft warning” messages) to applicants based on answers selected (e.g. program eligibility, timeframe, etc.).
- Help “pop up” modals linked to application form questions (e.g. definitions, more information, etc.).
- Option to “add attachments” as appropriate.
- Inclusion of on-line support documentation for applicants (e.g. tips, FAQs, list of questions, technical support page).
- Routing grant applications submitted through the forms to client reviewers and decision-makers.
3. Configuring the Administrator Portal: Configuration of the Online Management Interface (“MI”) in English that enables authorized users of Grants (“Administrative Users”) to review, classify and manage grant requests. The MI includes administrative permissions for the number of Administrative Users listed in the relevant Order Form and application management functions relating to workflows and messaging for processing grants applications, Eligible Charity and Non-Profit Organization verification and filtering, disbursement set up, audit logs, budget management, reporting, and survey management.
In addition, the following product features can be added or removed at the Client’s request:
- User Accounts
- Changes to read / edit / access permissions for existing users.
- Adding or deleting users with system access, without exceeding the limited number of Administrative Users specified in the Order Form.
- Modification of user profile details such as contact information.
- Changes (modifications of data or style) to custom reports.
- Text / copy changes to templated letters, cheque requisitions.
- Creation of up to three (3) new custom reports.
- Application Forms
- Deleting Non-Pivotal questions from the online application form. “Non-Pivotal” means a question that is not core to the broad functionality of the online application form and does not affect other questions. One question includes both English and French versions of the question.
- Basic static style changes to the online application form including a change of logo, color, font style on pages.
- Text changes (additions, modifications, and deletions) in the existing questions of the online application form.
- Text changes (additions, modifications, and deletions) in the existing select lists of the online application form.
- Up to three (3) changes to (additions or moving of) Independent questions on the online application form. “Independent” means a question that is not logic-based and includes a simple text entry field or select box and does not link to nor cause dynamic changes in the application form. One question includes both English and French versions of the question.
- One (1) change to (additions or moving of) Complex questions on the online application form. “Complex” means a question that is logic-based and links to other questions or causes dynamic changes in the application form. One question includes both English and French versions of the question.
- Review Interface
- Two (2) edits to existing List options in the review interface. A “List” means a series of choices associated with categorizing or classifying elements in the review interface such as cost centers, accounting codes, and program names and categories.
- Changes to approval workflow contact information.
- Changes to existing automated email logic.
- Text / copy changes to existing automated emails.
- Hosting and maintenance of all applicable databases, application forms and review interfaces.
- Other minor changes that, at the discretion of Benevity, are deemed to be non-material.
- Email and telephone support for applicants and Administrative Users, during business hours.
- Updates to Grants Solution technology. “Updates” mean bug fixes and / or new globally-available features or functionality that are rolled out to all Grants users.
4. Mapping and Import of Historic Grants Data (if applicable): Standard configuration of Grants includes the mapping and import of historic grants data from the Client that is provided as a single table in a format approved by Benevity. If data clean up or preparation is required by Benevity in order to conduct the mapping and importing of historic data into Grants, then such clean up or preparation may be made available separately as a managed service for an additional fee, subject to the Parties’ mutual consent.
5. Quality Control Testing: Testing of system to ensure operational readiness, integrity and accessibility.
6. Training and Client Support: A two-hour online training session (at launch) and a 90-minute online training session (after launch, as required).
Note: The Client’s use of Grants may allow for the disbursements of funds to grantee organizations via the Benevity Platform, if so indicated in the Order Form. In such case, Section B (PRODUCT INFORMATION) of the Software and Service Information for Spark set out above will apply to such disbursements to the extent relevant to distributions made via the Benevity Platform. Such ability to make disbursements to grantee organizations via the Benevity Platform does not mean that the Client necessarily has access to Spark – and access to Spark will only be provided if explicitly set forth in the Order Form.
For clarity, the features and functionality to be provided by Benevity, as listed in this Software and Service Information for Grants, include standard features and functionality generally offered by Benevity to Benevity’s other Grants clients. The provision of any features or functionality that are not currently made available by Benevity to Benevity’s other clients will be subject to additional agreement between the Parties.
Benevity makes no representation or warranty as to the legitimacy and legality of any particular Eligible Charity or Non-Profit Organization that applies for support from the Client via the Grants product. In no event will Benevity be responsible or liable for direct or indirect damages resulting from any tax, interest, fines, damages, penalties, reassessments or other levies imposed on the Client by any taxing authority (governmental or otherwise) arising from or in connection with the Client’s use of Grants. Benevity has not provided and does not provide any tax advice. The Client must rely on its own tax and accounting advice respecting all such matters. Without limiting any other term of the Agreement, it is acknowledged that: (a) the functionality of Grants is delivered, accessed and updated over the internet; and (b) Grants is provided by Benevity consistent with industry standards which may not address all problems associated with the delivery of software and functionality via the internet.
The fees applicable to the Client for use of Grants are set out in the relevant Order Form and are inclusive of the processing of up to 3,000 grant applications annually and up to 5GB of attachment storage annually, during the term of the Order Form. An additional fee of $1.50 CAD per grant application will be charged for any grant applications processed by Grants over and above 3,000 annually. Data storage over and above 5GB will be subject to a fee of $120/GB, annually. Fees in the Order Form will include the following:
Set-Up Fee. Client agrees to pay the set-up fee set forth in the Order Form for implementation of Grants (the “Set-Up Fee for Grants”), payable in full upon the effective date of the Order Form (the “Effective Date”). The Set-Up Fee for Grants is based on an estimate of hours of Services required to set-up and launch Grants, as determined by Benevity to be adequate. If such estimated amount of hours is materially exceeded as a result of (i) extraordinary changes or requests made by Client; or (ii) as a result of Benevity complying with Client’s internal processes, then additional services required for the initial launch will be discussed, and additional fees (if any) will be agreed upon by the Parties.
Hosting Fee. Client agrees to pay a recurring annual hosting fee in respect of Grants (the “Hosting Fee for Grants”). The first annual Hosting Fee for Grants is set forth in the Order Form, and will be payable in full by Client to Benevity upon the Effective Date. The Hosting Fee for Grants will be payable again upon each anniversary of the Effective Date throughout the Term. Benevity reserves the right to make reasonable annual modifications to its Hosting Fee for Grants on sixty (60) days written notice to Client.
Products and Services Available for Additional Fees. The following summarizes additional functionality that can be added for an additional fee. If desired, such additional work and any related fees will be documented in the Order Form or an addendum to the Order Form.
- User Accounts
- Adding users over and above the limited number of Administrative Users specified in the Order Form.
- Creating new read / edit / access permissions for users incremental to existing permissions (e.g. permissions or permission type based on new criteria).
- Addition of or customization to the standard offering of six (6) standard reports and three (3) custom reports.
- Structural changes to templated letters and cheque requisitions that exceed edits to text / copy.
- Application Forms
- Adding new language(s) to online application forms and / or the review interface.
- Changes to (additions or moving of) more than three (3) Independent questions on the online application form.
- Changes to (additions or moving of) more than one (1) Complex question on the online application form.
- Deleting Pivotal questions from the online application form. “Pivotal” means a question that is core to the broad functionality of the online application form and affects other questions. One question includes both English and French versions of the question.
- Internationalization of the online application form to include changes in currency, language, functionality over and above that specified in the Order Form.
- Revamping of the online application form including changes to most or all questions, copy, choices, styles, etc.
- Review Interface
- More than two (2) edits to existing List options in the review interface.
- Adding new Lists to the review interface.
- Creating new dependencies between or among existing Lists.
- Changes to the applicant request summary frame (top right frame in review interface).
- Mapping request data relating to Lists (e.g. mapping a newly deactivated List option to an active one).
- Adding new modules or new features / functionality that is not considered an Update.
- Changes associated with full rebranding of a client company application form or review interface including change of company name, logo, colors, text, etc.
- Adding to or modifying logic of automated emails. This means additions or changes to the content or copy of automated emails based on logical conditions (e.g. use copy version “A” if condition “X” is present; use copy version “B” when condition “Y” is present).
- Translation services.
D. Support and Maintenance
The following relates to the support and maintenance of Grants only. For support and maintenance matters relating to Spark and the Benevity Platform, please see the Software and Service Information for Spark.
Benevity will provide email and telephone support to Administrative Users between 8:00 am and 6:00 pm EST, on Monday to Friday (excluding holidays).
Benevity will provide routine maintenance on all Benevity-owned hardware, software and network components that are required for Grants to function as intended, which includes applying software patches and other in-release bug fixes and enhancements to Benevity operating software (that are made generally available to Benevity’s other clients) and replacement of defective, failed or degraded hardware and/or network components owned by Benevity. Benevity maintains equipment inventory, certified personnel and up-to-date maintenance agreements with all necessary vendors to ensure optimal maintenance of the operating system. In the event that emergency maintenance is required due to a sudden outage, Benevity will provide the Client with prompt notice of the downtime resulting from such emergency maintenance, as well as an estimate of when Client can expect the Grants product operating system to become operational.
As part of such maintenance and support services, Benevity will provide Client with modifications, updates or enhancements to Grants and documentation and related materials (including without limitation bug fixes for, and new releases of, Grants) including updates that are necessary to correct any problem or nonconformity either discovered by Benevity or reported to Benevity by the Client, that are made generally available to Benevity’s other clients.
Benevity may make certain changes or modifications to the terms of this Section D upon written notice to Client, provided that such changes or modifications will not materially and negatively deviate from the support and maintenance previously provided, without the Client’s consent.
Software and Service Information for Application Programming Interface (“API”) Integrations
Welcome to Benevity’s API. Depending on the nature and scope of the Client’s Integration, Benevity’s API will enable Participants to make donations of money or track volunteer time in respect of the charitable causes that are available in the Benevity Causes Portal. The API allows Clients to utilize Benevity’s Platform via API calls between the Client’s own end-user-facing application(s) and the Benevity Platform in order to administer its giving programs. The API will only be made available to the Client if so indicated in an applicable Benevity Order Form. The fundraising applications or giving programs for which the Client wishes to utilize the Benevity Platform are described in the relevant Benevity Order Form.
Note: The Client’s use of Benevity’s API may allow for the disbursements of funds to recipient organizations via the Benevity Platform, if so indicated in the Order Form. In such case, Section B (PRODUCT INFORMATION), Section E (EFFECT OF TERMINATION) and Section F (SUPPORT AND MAINTENANCE) of the Software and Service Information for Spark set out above will apply to such disbursements to the extent relevant to distributions made via the Benevity Platform (without the use of Spark).
B. Client Programs
The applications or giving programs for which the Client wishes to utilize the Benevity API and Benevity Platform are described in the relevant Benevity Order Form. The Client must obtain prior written approval of Benevity, acting reasonably, to confirm proper mechanics and receiptability for tax and other purposes, if Client wishes to create or implement fundraising applications or giving programs that are not listed on the Benevity Order Form. The Client agrees that it is responsible for any legal or regulatory requirements that apply with respect to its use of Benevity’s API.
C. Documentation and Technical Assistance
Upon the valid execution of a Benevity Order Form for Benevity’s API, Benevity will provide Client with such documentation and reasonable technical assistance required for the Client to complete the Client Integration. This is in addition to the support and maintenance provided as part of Benevity’s standard offering as referenced in Section F of the Software and Service Information for Spark.
Schedule A – Definitions
As used in this Software and Services Information document, the following terms have the following meanings when capitalized:
“Benevity Platform” means the platform developed by or for Benevity, accessible to Spark End Users through Spark, by which Spark End Users may make contributions of funds by various means to charities and/or provide advice about which charities should receive contributions, including any proprietary software product or other service provided by Benevity or its subcontractors for the benefit and use by Client or other Participants in connection with such platform, and including without limitation, Spark and the Benevity application programming interfaces.
“Causes Portal” means the online portal maintained by Benevity for purposes of allowing charities and non-profit organizations to register with Benevity and create a profile of their organization.
“Client Integration” means the specific configuration and integration of Spark for use by the Client, Spark End Users and other Participants (if any).
“Donation Date” is the date upon which the applicable Foundation becomes the beneficial owner of the funds representing the allocated donation transactions. In the case of a Direct Gift from a Participant, this is typically the date upon which the Participant provided instructions through the Spark Solution to make the donation; and (ii) in the case of a Matching Gift, this is typically the date corresponding to the applicable date of the Direct Gift for which the Matching Gift applies.
“Donation Funds” means the cash value of all donations tracked and recorded as part of the Client’s utilization of Spark, whether by way of a Direct Gift, Matching Gift, Donor Advice Gift, or otherwise.
“Effective Date” means the effective date of the applicable Order Form.
“Eligible Charities” mean charities that are registered and/or in good standing with its relevant local governing authority.
“Eligible Charity Database” means the database of Eligible Charities that are eligible to receive Donation Funds from Participants.
“Giving Programs” mean matching campaigns or other giving programs established by the Client from time to time.
“Matching Partners” mean those Client-approved third parties who participate in or initiate Giving Programs.
“Matching Program” means a Giving Program whereby the Client, a Matching Partner, or other Participant matches a Spark End User’s Donation Funds.
“Merchant Account” means the merchant account maintained by the applicable Foundation, which, in most cases, currently supports transactions made using PayPal, MasterCard, Visa, Discovery or American Express accounts.
“Participant” means, as the case may be, Spark End Users, Client or Matching Partners.
“Spark” means Benevity’s software-as-a-service hosted workplace giving and volunteering solution, which utilizes the Benevity Platform.
“Spark End User(s)” means all employees of Client who are eligible to access Spark via the Client Integration, and, with the consent of Benevity not to be unreasonably withheld, conditioned or delayed, any other person authorized by Client to be provided with access to Spark via the Client Integration.
“Special Circumstances” means those circumstances described in the first sentence of the paragraph entitled “Special Circumstances”, in Section B of the Software and Service Information for Spark.
“Specified Country(ies)” means (i) in connection with Spark, those country(ies) for which a localized instance of Spark is deployed for the Client Integration; and/or (ii) in connection with Grants, those country(ies) (if any) corresponding to the disbursement of funds via the Benevity Platform. A listing of the applicable Specified Country(ies) is included in the Order Form.
Capitalized terms used, but not defined, in this Software and Services Information document have the meanings ascribed to them in Benevity’s Terms of Service, available online here.
Schedule B – Personal Information Security Standards
This Schedule sets forth the protocols that Benevity and Client will follow with respect to maintaining the security and privacy of any Personal Information of a Participant of Spark and/or an Administrative User of Grants, as applicable (each a “User” and collectively the “Users”), in connection with the delivery or receipt of the Services under the Agreement, to the extent that Benevity has access to Client Personal Information. Nothing in this Schedule B prevents Benevity from arranging to have its rights and obligations under this Schedule B performed by third party subcontractors (such as Benevity’s hosting provider) provided however that Benevity will remain fully liable under the Agreement for the acts and omissions of its subcontractors.
Benevity will act solely as a “data processor” (or equivalent term under applicable privacy laws), such that it will only carry out the instructions of Client (the “data controller”) with respect to its use, disclosure, and other handling of such Personal Information. The Parties acknowledge and agree that Benevity will be permitted to utilize such of the Personal Information of Users as necessary to facilitate the delivery of tax receipts and as may be authorized by the notification and privacy settings of such User in their respective personal profiles (if applicable), notwithstanding anything contained in the Agreement respecting restrictions imposed by Client.
Benevity will not claim ownership of the User’s Personal Information.
2. Use by Benevity.
Benevity will not use Personal Information other than to perform the Services in accordance with the Agreement, and will not share, store, sell, remarket, transfer or otherwise disclose Personal Information for any purpose other than in accordance with the privacy instructions provided by Users via the System (if applicable). In the event of conflict among the terms of this Schedule B, and the User’s privacy instructions, the Parties acknowledge that, subject to applicable privacy law, the User’s privacy instructions take precedence.
3. Data Security.
Benevity acknowledges that in the course of its engagement by Client, Benevity may receive, and have access to Personal Information, and therefore will have obligations under certain laws and regulations relating to the privacy, and protection of such Personal Information. In recognition of the foregoing, Benevity covenants and agrees that:
(a) Security. Benevity will use such reasonable degree of care as is appropriate to avoid unauthorized use or disclosure of the Personal Information, including following Benevity’s own security and privacy policies and procedures, which Benevity represents as complying with applicable privacy laws and being no less rigorous than accepted practices in the industry. Benevity is required to maintain, at a minimum: (i) the physical security of the facility where paper files, servers, computing equipment and backup systems are maintained; (ii) Benevity’s network, application (including databases) and platform security; (iii) business systems designed to optimize security; (iv) transmission and storage encryption protection; and (v) authentication and access control mechanisms.
(b) Minimum Security Program Requirements. In connection with the Personal Information, Benevity will implement and maintain commercially reasonable information safeguards that are no less rigorous than accepted industry practices. At a minimum, Benevity will:
(i) Implement and maintain a comprehensive written information security program that contains reasonable administrative, technical, and physical safeguards to protect Personal Information, as appropriate to the nature and scope of Benevity’s activities and the Services.
(ii) Ensure that one or more employee(s) of Benevity coordinate the information security program, and that employees who will have access to Personal Information are trained on how to comply with Benevity’s information security program and the applicable terms of the Agreement. Benevity also will confirm that only their employees, officers, directors, agents, or subcontractors with a business need to access and use Personal Information in connection with the Services provided during the course of the Agreement will have access to the Personal Information.
(iii) Ensure that Benevity uses commercially reasonable efforts to identify reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Personal Information that could result in the unauthorized access, disclosure, misuse, alteration, destruction or other compromise of such Personal Information, and assess the sufficiency of any safeguards in place to control these risks.
(iv) Ensure that Benevity’s information security programs are (A) designed, maintained, updated and adjusted, as necessary in accordance with prevailing industry standards, to control the risks identified in subsection (c) below, and (B) regularly tested and monitored to ensure the effectiveness of the information security program’s key controls, systems and procedures. Further, all sensitive Client Personal Information stored on databases, servers, or other forms of non-mobile devices will be protected in a prevailing industry accepted manner against all reasonably-anticipated forms of compromise, whether by use of encryption, logical and/or physical access controls, or other generally accepted industry standard safeguards.
(v) Upon request, provide Client with a network diagram that outlines Benevity’s IT network and all equipment in relation to fulfilling the terms of this Schedule B, including, without limitation: (a) connectivity to Client and all third parties who may access Client’s network to the extent the network contains Personal Information; (b) all network connections including remote access services and wireless connectivity; (c) all access control devices (e.g., firewall, packet filters, intrusion detection, access-list routers); (d) any backup or redundant servers; and (e) permitted access through each network connection.
(vi) Maintain commercially reasonable physical security measures and systems to prevent unauthorized access to the data center and equipment at or on which Personal Information is stored, including the required use of card keys (or equivalent) to gain access to the area housing the equipment comprising the hosting infrastructure, guards, closed-circuit security cameras, and locks on the equipment racks.
(c) Security Breaches. Upon request, Benevity will provide Client with the name and contact information for a primary security contact with Benevity who will be available to assist Client as a contact in resolving obligations associated with a security breach. A “security breach” for purposes of this Schedule means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of Personal Information or interference with system operations in an information system maintained by Benevity that contains Client Personal Information. The inadvertent unauthorized access of Personal Information by a Benevity employee or subcontractor performing Services under the Agreement is not a security breach so long as the employee or subcontractor ends access as soon as the access is discovered, and the inadvertent access is reported to Client immediately. Benevity will notify Client as soon as possible, and in no case later than twenty-four (24) hours after Benevity becomes aware of evidence that would lead Benevity to reasonably conclude that a loss of, or unauthorized and unlawful access to or acquisition of, Client Personal Information may have occurred. Upon confirming a security breach affecting Client Personal Information, Benevity will report such breach to Client, and cooperate with Client in investigating all confirmed security breaches affecting Client Personal Information. Benevity will take appropriate steps to remedy any such breach, at Benevity’s reasonable expense, in accordance with applicable privacy rights and laws. Benevity will cooperate with Client in connection with issuing any notices as may be required by law in connection with any such breach affecting Client Personal Information.
(d) Secure Disposal of Personal Information. Upon the termination or expiration of the Agreement and subject to any retention obligations set forth in the Agreement and required by applicable law, Benevity will securely dispose (or ensure that such secure disposal occurs) of all Client Personal Information in Benevity’s possession, custody or control, including without limitation any and all copies and derivatives of such materials, in a manner consistent with applicable law. “Securely dispose” means burn, pulverize, or shred papers or destroy or erase electronic files or media so that the information on such papers, files, and media cannot be read or reconstructed. Further, to the extent a subcontractor is conducting the disposal, Benevity will conduct due diligence on the subcontracting entity, which includes one of the following: (i) reviewing an independent audit of a disposal company’s operations and/or its compliance with these disposal terms; (ii) obtaining information about the disposal company from several references; (iii) requiring that the disposal company be certified by a recognized trade association; or (iv) reviewing and evaluating the disposal company’s information security policies or procedures.