Givitas: Client Terms and Conditions of Use

Effective Date: October 12, 2018

1. Parties and Services

You (the “Client”) hereby agree to abide by the following Terms and Conditions of Use (the “Terms and Conditions”) with respect to the SaaS Services and all services provided by Give and Take Inc.  Give and Take hereby agrees to provide the Client with access to the SaaS Services and associated services set forth in the applicable Order Form and licensed herein. Each Order Form will detail the Service Term during which the Client will be provided with the SaaS Services, the number of Authorized Users permitted during the Service Term, and any other associated services to be provided to Client.  An “Authorized User”, for purposes of all applicable Order Forms, is an individual who has been provided with an invitation to access the SaaS Services by Client, or by Give and Take on Client’s behalf, and who has accessed the SaaS Services by logging in electronically during the applicable Service Term.

2. Term and Termination

2.1 These Terms and Conditions (the “Terms and Conditions”) take effect on the date of signature of the applicable    Order Form and will remain in full force and effect for so long as any active Order Form remains in effect.

2.2 Either Party may terminate any active Order Form if the other Party breaches any material provision of these Terms and Conditions, unless the breaching Party remedies the breach within thirty (30) calendar days of receiving written notice of such breach from the other Party.

2.3 Either Party may terminate any active Order Form immediately upon providing written notice to the other Party in the event that: (a) the other Party becomes insolvent, is adjudged bankrupt, and/or makes a general assignment for the benefit of creditors; (b) the other Party ceases to do business as a going concern; and/or (c) a receiver is appointed for the business of either Party.

2.4 In the event of termination: each Party’s obligations as set forth in these Terms and Conditions and any applicable Order Form will cease as of the termination date, provided, however, that the rights and obligations set forth in paragraphs 3,4,5, 8 and 9, together with any other terms which are clearly intended by the Parties to survive the termination, will continue in full force and effect beyond the termination date.  In the event of termination by Client for breach by Give and Take, Client will pay all undisputed fees owed for services received through the date of termination, and in the event of termination by Give nadn Take for breach by Client, Client will pay all undisputed fees owed under any applicable Order Form.​​

3. Fees, Payment, and Taxes

3.1 Unless otherwise specified in an Order Form signed by both Parties, fees will be invoiced upon signature of the Order Form, are due thirty (30) days from the invoice date and are in U.S. Dollars.  Give and Take may impose late penalties of up to 1.5% on any amount still owing after the due date.

3.2 Invoices specifically exclude any and all applicable sales tax, use tax, customs, duties, tariffs, VAT and other taxes.  Each Party remains solely responsible for taxes imposed or assessed on, or payable by, such Party, including taxes assessed on such Party’s net income or gross receipts, employer-related taxes with respect to the Party’s personnel, and taxes on the Party’s property.

3.3 If specified in the applicable Order Form, Client will pay to Give and Take any travel related expenses and/or other third-Party expenses which are reasonable and necessary in order to perform the SaaS Services thereunder, and Give and Take shall provide receipts evidencing any such expenses upon request of the Client.

4. Confidentiality and Data Protection

4.1 Confidential information (the “Confidential Information”) refers to any data or information relating to the business of either Party which would reasonably be considered to be proprietary including, but not limited to, accounting records, business processes, pricing, and customer records and all data that is not generally known in the industry of  either Party and/or where the release of that Confidential Information could reasonably be expected to cause harm to the disclosing Party.  Information may be deemed Confidential regardless of whether it was provided before or after the effective date of these Terms and Conditions or how it was provided.

4.2 The Parties agree that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which they have obtained from the other Party, except as authorized by the disclosing Party or as required by law.

4.3 Each Party will protect the Confidential Information and data of the other with protections at least equal to those which the Party uses to protect its own confidential and proprietary data

5. Ownership of  Intellectual Property and Licensing

5.1 Intellectual Property Rights.   Give and Take owns and shall continue to own and retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the SaaS Services, including the platform, any instructions, documentation, upgrades and/or updates associated with the SaaS Services.  Client shall have only those rights in and to the SaaS Services as are expressly granted to it pursuant to these Terms and Conditions.  Except as specifically set forth herein, Client shall own and continue to own and retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to all data entered, uploaded and/or provided by Client into the SaaS Product, supplied by Client to Give and Take pursuant to the applicable Order Form and subject to these Terms and Conditions, and/or generated by Client use of the SaaS Product (“Client Data”).  Give and Take shall have only those rights in and to Client Data as are expressly granted to it pursuant to these Terms and Conditions.

5.2 License Grant to Give and Take.  Client hereby grants to Give and Take a worldwide, non-exclusive right and license to store, host, reproduce, and maintain Client Data during the Service Term set forth in the applicable Work Order, for purposes of making the SaaS Services available to Client and Client’s users in accordance with these Terms and Conditions. Client hereby grants to Give and Take a worldwide, non-exclusive, perpetual right and license to use anonymized Client Data in the preparation of Give and Take Analytics, Metrics and Benchmarks. Client agrees to the use of Client name in the Give and Take Analytics, Metrics and Benchmarks. Give and Take agrees that such anonymized Client Data will only include Client Data gathered during an active Service Term, will not include any data which would identify Client or any individual Authorized User, and will not be sold to any third parties. Client hereby grants to Give and Take a worldwide, transferable, sub-licenseable, perpetual, royalty-free right and license to use and incorporate into the SaaS Software any feedback, suggestion, and/or enhancement or upgrade requests that is made or provided by Client and/or its Authorized Users.

5. 3 License Grant to Client.  Give and Take grants to Client a worldwide, non-exclusive, non-transferable right and license to access and use, and to permit Authorized Users to access and use, the SaaS Services during the Service Term set forth in the applicable Order Form.  Give and Take shall provide the SaaS Services in accordance with the terms herein and as set forth more specifically in the applicable Order Form.  Client may make a reasonable number of backup or archive copies of any instructions and/or documentation associated with the SaaS Services at no additional charge.  Client agrees not to: (a) distribute, sub-license, transfer and/or otherwise make the SaaS services available to any third Party; (b) reverse engineer or otherwise attempt to discover the source code and/or any trade secrets associated with the SaaS Services; and/or (c) use the SaaS product to develop and/or distribute any product or service competitive with the SaaS Services.

6. Notice

All notices, requests, demands or other communications required or permitted by these Terms and Conditions or the applicable Order Form will be given in writing and delivered to the Client at the address set forth in the applicable Order Form and to Give and Take at : Give and Take Inc. 4330 Windridge Court, West Bloomfield, MI 48323, Attn: CEO, and will be deemed to be properly delivered (a) immediately upon being served personally, (b) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with an overnight courier.

7. Representations and Warranties

Give and Take represents and warrants that:

7.1 The SaaS Services will be performed in accordance with and conform to these Terms and Conditions, the applicable Order Form and any applicable industry standards and practices;

7.2 The SaaS Services will be provided by qualified personnel, suitably skilled and trained in the performance of the Services and performed in a diligent and professional manner;

7.3 The SaaS Services shall be performed in compliance with all applicable law, statutes, ordinances and regulations;

7.4 There is no pending lawsuit or other adversary proceeding or action involving a third party in which such third party claims that the SaaS Services or any portion thereof, infringes, misappropriates or violates any third Party Intellectual Property Right or any other right of such third Party;

7.5 It has the right to grant the license and other rights relating to any Services provided under these Terms and Conditions, it shall, during the applicable Service Term, maintain all rights in and to the SaaS Services necessary to permit the licenses and other rights granted herein and any Order Form.

7.6 It has the full right, power and authority to enter into the obligations set forth herein and in any applicable Order Form without the consent of a third party, and (b) is under no obligation to any third party, nor will it enter into any obligation with a third Party, that could interfere with the ability to carry out the obligations set forth herein.

GIVE AND TAKE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SAAS SERVICES OR ANY SERVICES TO BE PROVIDED PURSUANT TO ANY APPLICABLE ORDER FORM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GIVE AND TAKE DOES NOT WARRANT THAT THE SAAS SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.

8. Indemnification

8.1 Give and Take will indemnify and defend Client, at Give and Take’s expense, against any third party claim or any action brought, and will pay any and all associated third party costs, liabilities and expenses and all settlements or judgments awarded in favor of a third Party against Client, based upon any claim that the SaaS Services infringe any valid U.S. patent, copyright or trade secret.  This indemnification obligation is conditioned upon Client: (i) promptly notifying Give and Take in writing of any such claim; (ii) giving Give and Take full authority and control of the settlement and defense of the claim; and (iii) fully cooperating with Give and Take in the defense of such claims, including providing adequate assistance and information to Give and Take at Give and Take’s request and expense.  The indemnity provided herein shall not apply to amounts paid in settlement of any claim if such settlement is made without Give and Take’s prior written consent. Give and Take will not enter into any settlement which would obligate Client without first obtaining Client’s written permission.

8.2 This indemnity does not apply to, and Give and Take will have no obligation to Client for, any infringement claim that arises from: (i) any modification to the SaaS Services by anyone other than Give and Take unless approved in writing by Give and Take; (ii) modifications to the SaaS Services made by Give and Take at Client’s request or in compliance with Client’s design, specifications or instructions; (iii) use of the SaaS Services other than as specified herein or the applicable Order Form; (iv) use of the SaaS Services in conjunction with third-Party software, hardware or data other than as specified herein or in the applicable Order Form; (v) Client’s breach of the terms herein; or (vi) use of a prior version of the SaaS Services, if the infringement claim could have been avoided by the use of the current version of the SaaS Services after notice from Give and Take, advising Client of a possible infringement.  In the event of any claim arising out of the foregoing, Client will indemnify and hold Give and Take harmless from any loss or expense (including reasonable attorney fees) suffered or incurred by Give and Take in connection therewith.

8.3  If an infringement claim arises, or in Give and Take’s reasonable opinion is likely to arise, Give and Take may in its sole discretion and at its own expense: (1) obtain for Client the right to continue using the SaaS Services; (2) modify the SaaS Services to make it non-infringing, or substitute other software of substantially similar capability and functionality; or (3) terminate the active Order Form(s) and refund any prorated prepaid fees for the then-remaining portion of the applicable Service Term.

THIS INDEMNIFICATION SECTION STATES THE ENTIRE OBLIGATION OF GIVE AND TAKE AND THE SOLE AND EXCLUSIVE REMEDIES OF CLIENT WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR INTELLECTUAL PROPERTY RIGHTS VIOLATIONS.

9. Limitation of Liability

EXCEPT FOR CLAIMS FOR INDEMNITY BROUGHT PURSUANT TO SECTION 8 (INDEMNITY), NEITHER PARTY SHALL BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNT ACTUALLY PAID TO GIVE AND TAKE BY CLIENT IN THE ONE YEAR PERIOD PRECEDING THE CLAIM. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY LOSS OF DATA OR USE OF DATA, LOST PROFITS OR LOST SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Modification

Any amendment or modification of these Terms and Conditions or additional obligation assumed by either Party will only be binding if evidenced in writing signed by an authorized representative of each Party.  Give and Take will accept Purchase Orders as required by Client, provided, however, that such Purchase Orders are issued in conjuntions with a mutually signed Order Form and that any standard terms and conditions pre-printed on or referenced in any such purchase order or other document not signed by both Parties, whether such terms seek to amend, modify or supplement the terms herein, will be voided, superseded and replaced by these Terms and Conditions.

11. Miscellaneous

11.1 Nothing herein shall be interpreted to prohibit Give and Take from utilizing necessary subcontractors in connection with the SaaS Services, provided that Give and Take remains liable for the actions of its subcontractors.

11.2 These Terms and Conditions, together with the applicable Order Form, represents the entirety of the agreement between the Parties, and it is agreed that there is no representation, warranty, collateral agreement or condition between the Parties except as expressly provided herein. To the extent that there is any conflict between these Terms and Conditions nd any Order Form, the terms of herein will control unless the Order Form specifically provides that it controls as to the particular term in question.

11.3 Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting these Terms and Conditions.

11.4 These Terms and Conditions and all Order Forms will be governed by and construed in accordance with the laws of the State of Michigan.  Any actions to enforce will be brought in the state or federal courts located in the County of Washtenaw, State of Michigan, and the Parties hereby waive any objection to the exercise of jurisdiction over it by these courts.

11.5 In the event that any of the provisions of these Terms and Conditions are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of these Terms and Conditions.

​11.6 The waiver by either Party of a breach, default, delay or omission of any of these Terms and Conditions by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.

11.7 In providing the Services it is expressly agreed that Give and Take together with its employees and contractors acting on its behalf is acting as an independent contractor and not as an employee. The Parties acknowledge that there is no partnership or joint venture between them, and their relationship is exclusively a contract for the provision of services.  Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers’ compensation, insurance premium, profit-sharing, pension or any other employee benefit for the benefit of Give and Take during the Term.

11.8 Publicity.   Give and Take will be permitted to use the written name and/or logo of Client in the Give and Take Analytics, Metrics and Benchmarks, as set forth in Section 5.2, and in advertising, press releases, publicity, promotion and marketing activities.

11.9 Give and Take may periodically install updates and/or upgrades to the SaaS Services without prior notice. Client acknowledges that the SaaS Services may change as a result of such updates and/or upgrades, and agrees to such changes provided that performance is not materially decremented.

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