This SmallGyfts Participation Agreement ("Participation Agreement") contains the terms and conditions that govern your participation in the SmallGyfts program described in this Participation Agreement (the "Program"). "We," "us," or "our" refers to SmallGyfts, and "you" or "your" refers to the charitable organization or businesses seeking to participate in the Program. "SmallGyfts" means www.smallgyfts.com or my.smallgyfts.com websites accessed through a web browser.
By creating a charity administration account ("Registered Cause") or a business administration account ("Registered Business") on the smallgyfts.com website ("Organization Site") or otherwise participating in or seeking to participate in the Program, you agree to these conditions. Please read them carefully.
1. Description of the Program
The purpose of the Program is to permit Registered Organizations (as defined in Section 2) to give or receive donations through SmallGyfts Business when customers make Qualifying Purchases (defined in Section 5) through SmallGyfts.
Business customers can select any Eligible Organization, but only Registered Causes can receive disbursements from the Program. To register, you must accept this Participation Agreement without modification, complete registration through the Organization Site and properly provide all requested information, including submitting a complete and accurate Program application that correctly identifies your organization and providing valid account information as described in Section 6. We reserve the right to reject or suspend your registration if the requested information (including representative and account information) is inaccurate or incomplete or if you are otherwise not in compliance with this Participation Agreement. If your registration is accepted, your organization will be a "Registered Organization" for as long as all of your registration information, including the account information described in Section 6, is current and complete, this Participation Agreement remains in force, and you continue to be an Eligible Organization. You will ensure that all information you provide to us, including your Program application information, account information, email address, and other contact information, is at all times complete, accurate, and up-to-date, and agree that failure to keep such information up to date may result in you no longer being a Registered Organization or in you no longer receiving any donations under the Program.
"Eligible Organizations" are those qualified Registered Causes (501c3 nonprofits or grassroot charitable organizations) or Registered Businesses that we determine are:
You consent to us sending you notifications (if any), approvals (if any), and other communications relating to the Program and this Participation Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
3. Program Policies
By participating in the Program, you agree that you will comply with the Program Policies and all pages, schedules, policies, guidelines, and other documents and materials referenced in this Participation Agreement, including policies and guidelines posted on the Organization Site and including the Program Content Guidelines and the SmallGyfts Program Description page (collectively, "Operational Documentation").
You can only promote or link to SmallGyfts on your own website, user-generated content published through a social media account or page, offline mailings, or email correspondence (your "Site") and can only use such of our trademarks or logos or our affiliates' trademarks or logos ("Smallgyfts Marks"), links to SmallGyfts("Links"), or other content we may make available to you (collectively, "Content"), in all cases in accordance with Program Policies and the Program Content Guidelines.
4. Responsibility for Your Site and Actions
You will be solely responsible for your Site, your organization, and actions taken by you or on your behalf, including:
We will have no liability for these matters, and you agree to defend, indemnify, and hold us, Try2See, Inc. ("TRY2SEE") and its affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys' fees) relating to these matters. With respect to any emails, social media posts, mailings and other communications you send (or cause to be sent) in connection with the Program, you acknowledge that you are the originator and sender for all purposes (including under the CAN-SPAM Act of 2003 and all similar laws).
5. Qualifying Purchases
We will make donations to you resulting from Qualifying Purchases in accordance with Section 6 and as set forth in the SmallGyfts Program Description page. Subject to the exclusions set forth below, a "Qualifying Purchase" occurs when (a) a customer (i) complete purchasing a product or service, based on terms set by the Registered Business, and provides a SmallGyfts QR donation code with the value of the donation; (b) at such time, that customer has selected your Registered Cause to benefit and (c) the customer has redeemed the SmallGyfts QR donation code by scanning the QR code or has given the SmallGyfts donation QR code to your organization to redeem by scanning the SmallGyfts QR donation code.
Donations are determine and offered at the sole descretion of Registered Businesses, not by the SmallGyfts Program. Donations for each calendar quarter will be made available approximately 45 days following the end of that quarter. If we determine that we have made an overpayment in donations to you, or if we determine that you received donations to which you were not entitled as a result of your actions or omissions (for example, if you provided incomplete or false registration information or otherwise violated this Participation Agreement), we reserve the right, in our sole discretion, to (a) deduct the amount of the overpayment from any donation amount that is due to you in subsequent donation cycles, and/or (b) notify you and request reimbursement for any amounts incorrectly paid to you, in which case you hereby agree to reimburse us for such overpayments promptly and in any event within 30 days of such request. You acknowledge and agree that we are under no obligation to provide you with a report of Qualifying Purchases or donations attributed or earned.
If we determine that you are no longer an Eligible Organization or that you or anyone acting on your behalf has violated any term or condition set forth in this Participation Agreement (including failure to qualify as a Registered Organization), we reserve the right to disburse any donations that would have been made to you instead to one or more other Registered Causes as set forth in the Operational Documentation.
When making donations to Registered Causes, we will directly send a bank check to your designate representative in your account profile. We reserve the right to accrue and withhold donations for any Registered Cause until the total donation for that organization is at least $25.00, at which point the accrued and withheld total donations will be paid in full during the next quarterly donation cycle. However, we will not withhold donations that remain under the $25.00 level for a Registered Organization for longer than four consecutive quarters.
You must promptly provide us with accurate and complete account information. If you do not provide this information, the information is not valid, or a donation is otherwise rejected by your organization, then we reserve the right to suspend or revoke your registration for the program, so that you will cease to be a Registered Organization, you will not receive donations, and donations that you would have received will be treated as donations directed to an Eligible Organization that is not a Registered Organization, as described in the following paragraph. You will only be eligible to receive donations again after you provide valid account information and you qualify as a Registered Organization.
If an Eligible Organization that is not a Registered Cause accrues donations in a given calendar quarter, we will accrue and withhold such donations until the donation cycle following the end of the calendar quarter in which it becomes a Registered Cause. However, if such an Eligible Organization does not promptly become a Registered Cause, then we reserve the right after each calendar quarter in which an Eligible Organization accrues withheld amounts (after expiration of a reasonable period as we determine in our discretion, not to exceed 3 years after such quarter), to reallocate and disburse such accrued and withheld funds to organizations qualified as Registered Causes.
We may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your donations until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7. Public Communications; Identifying Yourself as a Program Participant
You acknowledge and agree that we may or may cause others to publicly disclose (including through a government filing, press release, interview, or any other public statement) the amount of donations provided to you (individually and/or collectively with other charitable organizations) in connection with the Program. Except as expressly permitted in the Operational Documentation, you will not issue any press release or make any other public communication with respect to this Participation Agreement, your use of the Content, or your participation in the Program.
8. Term and Termination
The term of this Participation Agreement will begin upon acceptance of this Participation Agreement and will end when terminated by either you or us. Either you or we may terminate this Participation Agreement at any time, with or without cause, by giving the other party written notice of termination, which for your termination notice will require a written request to be removed from the program, delivered by this contact us form on the Organizational Site, and for our termination notice will require either making a notice available for your review on the Organizational Site or transmitting email to the email address then-currently associated with your Program account. We also reserve the right, in our sole discretion, to cancel or otherwise terminate the Program at any time. Upon any termination of this Participation Agreement and/or the Program, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 2, 4, 7, 8, 10, 11, 12, 13, and 14 and under the Program Content Guidelines will survive the termination of this Participation Agreement. No rights or obligations with respect to accrued but unpaid donation obligations will survive any termination of this Participation Agreement, and instead amounts otherwise allocable to you will be allocated and paid to other Registered Organizations in accordance with Section 6. No termination of this Participation Agreement will otherwise relieve either party for any liability for any breach of, or liability accruing under, this Participation Agreement prior to termination.
We reserve the right to modify any of the terms and conditions contained in this Participation Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on Organization Site or by sending notice of such modification to you by email to the email address then-currently associated with your Program account (any such change will be effective on the date specified in such notice but will in no event be less than two business days after the date of the notice). YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH NOTICE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS PARTICIPATION AGREEMENT IN ACCORDANCE WITH SECTION 8. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (FOR EXAMPLE, THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED PARTICIPATION AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE Organization Site OR THE EFFECTIVE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
10. Relationship of Parties
You and we are independent contractors, and nothing in this Participation Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates' behalf. You will not make any statement, whether on your Site or otherwise, that contradicts or may contradict anything in this Section 10. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Participation Agreement, you will be deemed to have taken the action yourself.
11. Limitation of Liability
NONE OF US, TRY2SEE, OR THEIR AFFILIATES AND LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS PARTICIPATION AGREEMENT, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, THE AGGREGATE LIABILITY FOR US, TRY2SEE, AND THEIR AFFILIATES AND LICENSORS ARISING IN CONNECTION WITH THIS PARTICIPATION AGREEMENT, THE PROGRAM, SMALLGYFTS, AND THE SERVICE OFFERINGS WILL NOT EXCEED $1.
THE PROGRAM, SMALLGYFTS, THE ORGANIZATION SITE, ANY PRODUCTS AND SERVICES OFFERED ON OR THROUGH SMALLGYFTS OR ORGANIZATION SITE, ANY CONTENT, THE SMALLGYFTS.COM DOMAIN NAME, THE SMALLGYFTS APP, TRADEMARKS AND LOGOS OF OURS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS" AND "AS AVAILABLE." WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. WE WILL NOT BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS PARTICIPATION AGREEMENT. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS PARTICIPATION AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF THIS PARTICIPATION AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
Any dispute relating in any way to the Program or this Participation Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Michigan, without regard to principles of conflict of laws, will govern this Participation Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Participation Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, 5937 Birch Ct, Ypsilanti, MI 48197. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding anything to the contrary in this Participation Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
By accepting this Participation Agreement you hereby consent to us sending your organization emails from time to time relating to the Program. You may not assign this Participation Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Participation Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Participation Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Participation Agreement. We may from time to time in our sole discretion make donations that exceed or supplement those strictly required under this Participation Agreement, but in no event will such actions create any right to receive excessive or supplemental donations at any later time or under similar circumstances. In the event of any conflict between this Participation Agreement and the Operational Documentation, the Participation Agreement will control over the Operational Documentation. Smallgyfts, its affiliates and licensors are expressly intended third party beneficiaries of this Participation Agreement, but except as stated in this sentence this Participation Agreement no other person or entity other than you and us will have any right or interest arising out of this Participation Agreement. This Participation Agreement incorporates, and you agree to comply with, the most up-to-date version of all Operational Documentation, including any updates of the Operational Documentation from time to time. Whenever used in this Participation Agreement, the terms "include(s)," "including," and "for example" mean, respectively, "include(s), without limitation," "including, without limitation," and "for example, without limitation." Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Participation Agreement, may be made, taken, or given in our sole discretion. All non-public information provided by us in connection with this Participation Agreement or the Program is considered confidential information, and you will maintain the same in strict confidence and not disclose the same to any third party (other than your affiliates) or use the same for any purpose other than your performance under this Participation Agreement, which restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties. This Participation Agreement (including the Operational Documentation) is the entire agreement between you and us regarding the Program and supersedes all prior agreements and discussions.