PRESBYTERIAN CHURCH IN AMERICA FOUNDATION, INC.
SYSTEM USE AND GIFT AGREEMENT
SUMMARY OF TERMS
The following summary of the terms of this System Use and Gift Agreement is not part of the Agreement, but is provided as a guide to alert you to certain of those terms:
- - The Foundation proposes this Agreement by publication on its website on November 22, 2019, and may amend it at any time thereafter in the same way. You agree to the terms of the Agreement or any amendment to it by interacting with the Foundation after such publication. This Agreement supersedes any prior agreements between us addressing the same subjects.
- - Your transfers of money or other property to the Foundation, other than transfers in trust or merely for custody, are irrevocable charitable gifts to the Foundation.
- - The Foundation becomes the sole owner of the property that you transfer to it, and maintains full discretion and control over the use of the property.
- - Unless you are the beneficiary of a custodial account or the grantor of a trust, you obtain only the right to recommend and to designate another to recommend grants of the transferred property and its proceeds to the extent of its value at transfer, and with regard to certain identified funds to the extent of its appreciation and earnings after charges for operating costs, to other charities.
- - You agree that you will not recommend any grant that would result in you or a related person receiving a personal benefit.
- - If you are authorized to access information from the Foundation, it licenses you to access and use the secure donor site and Foundation materials and communications.
- - You are responsible to maintain the security of your assigned password.
- - You represent that the information you provide to the Foundation is accurate, and that you will not use for commercial purposes or otherwise misuse the secure donor site or other Foundation systems.
- - You agree not to disclose confidential information you discover in interacting with Foundation systems.
- - You consent to the Foundation’s collection and use for its charitable purposes of personal information about you.
- - If you use the secure donor site, you agree to accept and review electronic notices the Foundation sends to the most recent email address you have provided.
- - You agree to respect the property rights of third parties in material the Foundation posts on any of its websites.
- - The Foundation disclaims offering any legal or other professional advice, and disclaims any representation or warranty about products, services, systems, materials, or communications it provides or maintains. You assume all risks of using same.
- - You release the Foundation from all liability to you, and indemnify it for liability arising from your breach of the Agreement, except to the extent the liability arises from the Foundation’s gross negligence or willful and wanton misconduct.
- - Your sole remedy against the Foundation is to discontinue your interaction with it, and in any event, recovery against the Foundation is limited to the amount you have paid to it for services (not as gifts).
- - The Foundation may not terminate your advisory rights (other than for your breach of the Agreement), but may terminate any license it has provided and any service it provides at any time.
- - Our relationship and this Agreement are governed by Georgia law, and any disputes between us must be resolved by binding arbitration.
PLEASE READ CAREFULLY. THIS SYSTEM USE AND GIFT AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND THE FOUNDATION.
This System Use and Gift Agreement (“Agreement”) is between you and the Presbyterian Church in America Foundation, Inc., a Georgia nonprofit corporation with headquarters at 1700 North Brown Road, Lawrenceville, Georgia, whether acting for itself or in its capacity as trustee (identified herein as the “Foundation,” or “we,” or related terms). This Agreement governs your gifts and other transfers to and recommendations of grants from the Foundation, the Foundation’s use of property and the proceeds of property you transfer to it, the exchange of information and use of exchanged information between you and the Foundation, and other public or private communications or actions of the Foundation and interactions between you and the Foundation or its systems that are related to the consideration, making, facilitation, compliance or fulfillment, receipt, recording, maintenance, management, administration, exploitation, liquidation, expenditures, or grant of gifts or other transfers to the Foundation, property transferred or its proceeds, or the recommendations of grants or investments of such property or its proceeds. The foregoing subjects of this Agreement include the Foundation’s provision of, and your access to, acceptance of, action or restraint in reliance on, and use for any purpose of the Foundation’s limited-access websites (including new features, any new or successor sites, and the limited-access portion of any other of the Foundation’s websites) (together, the “Secure Site”), other parts of the Foundation’s systems, and information, materials, products, and services provided or accessed by you or us in any form or by any means.
The Foundation offers the terms of this Agreement by publishing it or directly delivering it to you, which terms you accept not only by signing a copy of or otherwise expressing acceptance of this Agreement, but also by making a gift or other transfer of cash or other property, or a grant recommendation to the Foundation, or accessing, accepting, taking action or refraining from action in reliance on, or otherwise using the Secure Site, other of the Foundation’s systems, or information, materials, products, or services the Foundation provides. You acknowledge and agree that you have no rights with respect to the Foundation or its systems, including the Secure Site, other than the rights expressly granted to you in this Agreement. For example, if you do not agree to be bound by this Agreement, you may not access or use the Secure Site.
Your use of the Secure Site is governed also by the terms and conditions generally applicable to use of any public website of the Foundation, which as amended from time to time are incorporated herein by this reference. In the event of a conflict between the terms and conditions of this Agreement and such general public website terms and conditions, the terms and conditions of this Agreement govern.
The Foundation may publish just to you or more broadly from time to time various guides to making gifts and grant recommendations, and otherwise interacting with the Foundation, and various operating procedures of the Foundation. You acknowledge and agree that no part of any such publication constitutes an agreement between you and the Foundation, and that the Foundation may modify them and act out of accord with them at any time and from time to time in its sole discretion.
An Authorized Person (defined below) may obtain a paper copy of the version of this Agreement current at the time of request, and any terms, conditions, or guidelines incorporated therein by reference, by delivering a written request for same to the Foundation.
The term “Authorized Person” means any person the Foundation has authorized expressly to access information about a fund the Foundation maintains or a trust of which it serves as trustee, a gift to the Foundation, a delivery of property for custody of the Foundation, or property or proceeds of property so gifted or delivered, or to provide recommendations or instructions with regard to such fund, trust, gift, delivery, property, or proceeds.
“Protected Party” means the Foundation and each provider of Third Party Material (as defined below), the affiliates, subsidiaries, and related companies of any of the foregoing, and their respective officers, directors, trustees, employees, legal representatives, agents, heirs, successors and assigns.
“Foundation Material or Communication” means any text (including numbers), sounds, images, and other expressions, regardless of form but excluding computer code, that the Foundation or its employees or agents create, record, express verbally or in writing, publish, broadcast, post, or otherwise make available by any means (including the Secure Site), other than Third Party Material (defined below) which the Foundation is licensed to use or display.
“Third Party Material” means news, information, commentary, interactive tools, advertisements, research reports and data concerning charitable giving, charitable organizations, or other subjects, and sounds, images, and other expressions, regardless of form, that have been developed or are owned by individuals or organizations other than the Foundation.
“Confidential Information” means any information about the Foundation, the Secure Site, or other systems of the Foundation, or a director, trustee, advisor, officer, employee, agent, or contractor of or with the Foundation, a donor or fund-advisor to the Foundation other than you, a fund of the Foundation other than one to which you are a donor or over which you are an advisor (including information about fund transactions), a gift or other delivery of property to the Foundation other than from you, such property or proceeds of such property, or recommendations or instructions delivered to the Foundation other than by you, which the Foundation has not disclosed intentionally to the general public (including the fact that a person is a donor or fund-advisor to the Foundation, and any computer code owned by or licensed to the Foundation), and which the Foundation has not expressly authorized you to access.
Modification of this Agreement
We may amend this Agreement, including terms, conditions, and guidelines incorporated herein by reference, at any time. You consent to and accept any such amendment by signing a copy or otherwise expressing acceptance, or by doing any of the following after the Foundation posts the amended Agreement on its primary public website: making a gift to the Foundation, or affirmatively accessing, accepting, taking action or refraining from action in reliance on, or otherwise using the Secure Site, another Foundation system, or materials, products, or services the Foundation has provided. No other act, document, usage or custom amends this Agreement. Notwithstanding the foregoing, the Foundation may not terminate any advisory rights you may have prior to the effective date of the amendment, unless the Foundation is required to terminate such privileges by law or as a condition of its status as an organization exempt from federal income tax or an organization contributions to which are tax-deductible, and exercising those advisory rights, even through use of the Secure Site, does not of itself constitute your consent or acceptance of any amendment to this Agreement.
Basic Relationship – Contributions to the Foundation and Grant Advisory Rights
You and the Foundation represent to and agree with each other as follows, except as you and we expressly modify these representations and agreements with regard to custodial accounts or trusts in the following section. You represent and agree that each payment of cash or other transfer of property you have made or hereafter make to the Foundation, unless otherwise expressly agreed in writing before the transfer, is a charitable gift, is irrevocable and nonrefundable, does not render you legally insolvent or leave you with assets unreasonably small in relation to a business or transaction in which you are engaged or are about to engage, and is not otherwise a voidable transaction, that you do not intend to incur or believe that you will incur debts beyond your ability to pay, and that the Foundation is the absolute and unconditional legal owner of any cash or other property transferred, and maintains full discretion and control as to its use and the use of proceeds, including the right to commingle the assets of any fund with those of other funds, without limitation other than the broad charitable-use limitation in the next sentence, and the advisory rights described in the next paragraph. The Foundation agrees that it will not knowingly use any such property or its proceeds for any purpose other than one described in Internal Revenue Code Section 501(c)(3) (or its successor). You further acknowledge and agree that the Foundation may accept or decline to accept any transfer of cash or other property you make or purport to make to the Foundation.
A fund is created whenever a donor (whether alone or jointly with another or others) transfers cash or other property to the Foundation and other than to a pre-existing fund of the Foundation. A fund-creating donor has the right to advise and to designate at least one other person to advise – but not require – the Foundation to make grants of property of the fund and its proceeds to the extent of the value of the property when transferred, and with regard to certain identified funds also to the extent of appreciation and earnings on such property and proceeds in excess of charges for operating costs. If more than one donor creates a fund, each such donor may designate at least one other person to exercise advisory power, and the Foundation may consider and comply with grant recommendations of any such donor or designated advisor without informing or seeking consent from others. If such co-donors make conflicting recommendations of grants and designations of advisors of grants from the fund to be made following a donor’s death, incapacity, or incompetency, the Foundation will consider the recommendations and designation only of the last donor to die or become incapacitated or incompetent. The donor’s advisory and designation rights are personal to the donor, and any person the donor designates or the Foundation otherwise permits to exercise advisory powers is not a third-party beneficiary of the donor’s rights or able to enforce them. The Foundation is not required to permit to exercise advisory power any person who has not agreed to the terms and conditions of this Agreement as amended. If the Foundation permits to exercise advisory power multiple advisors whom the donor has designated to act as a committee, the Foundation may consider and comply with grant recommendations delivered by any committee member, or may, in its discretion, investigate and determine which advisor the committee has chosen to deliver the committee’s recommendations, or which recommendations the committee has approved. The Foundation may revoke its grant of advisory power to any person other than the donor at any time and for any reason in its sole discretion, provided that it must at all times permit at least one person designated by a donor to exercise advisory power.
You agree that, to the extent you hold power to advise over a Foundation fund, you will not recommend any grant if you anticipate that you or any donor or advisor to the fund (or any related individual or related entity other than one qualified to receive grants from the Foundation) will receive directly or indirectly any benefit that is more than incidental as a result of the recommendation or grant. Such benefits include but are not limited to tuition or payment of other educational costs, admission to any event, and discharge of any pledge or other legal obligation (including a pledge to make a contribution or grant, but excluding a pledge merely to recommend a contribution or grant). You further agree that if offered or presented with any such benefit as a result of such a recommendation or grant, you will decline. If you make a recommendation that violates the foregoing, or recommend a grant that you know would violate then-current standards that the Foundation has published (for example, you know the grantee is a private non-operating foundation, or intends to use the grant for political campaigning), then you will cooperate with the Foundation in recovering the grant, reimburse the Foundation for the amount of the grant that is not recovered, and indemnify the Foundation and each other Protected Party for any costs, liabilities, penalties, and damages incurred or imposed in recovering the grant or otherwise as a result of the grant.
Notwithstanding the foregoing, if you transfer cash or other property to a fund that the Foundation and you, or the initial donor to the fund if different than you, have designated to make grants only to a single identified organization, the Foundation will make grants of such property and its proceeds only to such organization, but any advisor of the fund may advise when the Foundation will make such grants. The Foundation may designate a different organization or organizations to receive grants from the fund if (i) the then-designated recipient ceases to meet the conditions established by the Foundation for an organization to receive Foundation grants, (ii) the Foundation determines that the restriction to that recipient is unnecessary, incapable of fulfillment, or inconsistent with the charitable needs of the community the Foundation serves, or would prevent the Foundation from using the fund to further or carry out its exempt purposes, or (iii) required, in the reasonable judgment of the Foundation, to maintain the status of the fund as a component part of the Foundation.
Also notwithstanding the foregoing, if you transfer cash or other property to a fund that the Foundation and you, or the initial donor to the fund if different than you, have designated to make grants only of income for a period of time, until certain conditions are met, or indefinitely, or to make grants in accordance with any other restriction, the Foundation will make grants of such property and its proceeds only in accordance with such restriction. The Foundation may make grants from such fund not in accordance with any such restriction if (i) the Foundation determines that the restriction is unnecessary, incapable of fulfillment, or inconsistent with the charitable needs of the community the Foundation serves, or would prevent the Foundation from using the fund to further or carry out its exempt purposes, or (ii) breaching the restriction is required, in the reasonable judgment of the Foundation, to maintain the status of the fund as a component part of the Foundation.
Custodial Funds and Trusts
If you transfer cash or other property to a fund from which a church, presbytery, committee, or agency of the Presbyterian Church in America (each identified in this section as a “church”) has the right pursuant to agreement with the Foundation to require at any time distributions to the church or another organization, the Foundation will make grants or other transfers of such property or its proceeds to the extent of the value of the property at transfer, and if so agreed, also to the extent of appreciation and earnings in excess of fees charged by the Foundation, only as directed by the church, and without regard to purpose. Notwithstanding, the Foundation may re-transfer to the church all or any portion of the transferred property or its proceeds at any time in its discretion. You acknowledge and agree that the church is the absolute and unconditional legal owner of any cash or other property transferred and its proceeds, and maintains full discretion and control as to the use of same, without limitation, and that no person has any advisory privileges over the fund. If you are the church, you represent and agree that each transfer you make is not a charitable gift but a deposit, you make no representation or agreement with regard to the transfer’s effect on your legal solvency or whether the transfer is a voidable transaction, you acknowledge and agree that you and the Foundation do not intend to create by your agreement a trust under the laws of the State of Georgia or of any other state, and that the Foundation is not acting as a trustee with regard to the fund, and you acknowledge and agree that if you and the Foundation have not agreed that you may direct distributions to the extent of appreciation and earnings, the Foundation may retain such appreciation and earnings as fees.
If you transfer cash or other property to the Foundation pursuant to an express trust agreement, the Foundation will make grants or other transfers of, and expend, such property or its proceeds in accordance with the terms of such agreement. You represent and agree that such transfer is a charitable gift to the extent provided in the trust agreement and by law, that the Foundation maintains full discretion and control as to the use of such property and its proceeds except as limited by such agreement, and that you have no advisory privileges over or other rights with respect to such trust other than as provided in the trust agreement, but that the other terms of this Agreement not inconsistent with the terms of the trust agreement govern your and the Foundation’s respective rights and obligations with respect to your transfer to the Foundation and the property so transferred and its proceeds.
If you are not an Authorized Person, you may not access or use the Secure Site, and the Foundation hereby instructs you to terminate access and use.
Provided you are an Authorized Person, and subject to your continued compliance with the terms of this Agreement, the Foundation hereby grants you a personal, revocable (at any time and for any reason in the discretion of the Foundation), non-exclusive, non-transferable, limited license (without the right to sublicense) to do the following only for your personal, non-public, charitable purposes, and only in accordance with rules that the Foundation publishes from time to time in this Agreement or on any of its public websites: (1) activate or use the functions of the Secure Site; and (2) view, listen to, download, copy, record, and distribute or disclose any Foundation Material or Communication that does not include Confidential Information. This license is in addition to any license granted for use of any public website of the Foundation.
Password Security and Notification
You will maintain the confidentiality of any user name or password by which you access the Secure Site, any Foundation Material or Communication, or information the Foundation maintains about you or any fund with regard to which you are an Authorized Person. The Foundation may deem any use of any user name or password assigned to you to be your use, and you are responsible for all uses of such assigned user name or password, whether or not authorized by you. You agree to notify the Foundation in writing immediately if you become aware of any loss or theft of any user name or password assigned to you, or any unauthorized access to or use of any such user name or password or of the Secure Site, the Foundation Material or Communication, or information about you or any fund with regard to which you are an Authorized Person. You agree that, until the expiration of a reasonable time after you have notified the Foundation of such a security breach, the Foundation may assume that you have communicated any instruction or information entered using any user name and password assigned to you, and it will have no obligation to inquire into the propriety of such communication. You are solely responsible for monitoring the use of and the security surrounding your user names and passwords.
You represent, warrant, and promise that all information you have submitted or will submit to the Foundation, including your identity, is and will be accurate, and that you will promptly notify the Foundation in writing of any changes to that information. You also agree that you will not do the following on, to, or by means of the Secure Site or any other Foundation system: (i) post unauthorized commercial communications (such as spam), (ii) collect or attempt to collect any other user’s content or information or access the Secure Site by automated means (such as harvesting bots, robots, spiders, or scrapers) without the Foundation’s prior permission, (iii) engage in marketing or advertising, (iv) upload viruses or other malicious code, (v) solicit login information for or access a fund or information about a fund with regard to which you are not an Authorized Person without prior permission from the Foundation or that person, (vi) bully, intimidate, or harass any other user, (vii) post content that is hateful, threatening, pornographic, incites violence, or contains nudity or graphic or gratuitous violence, (viii) promote use of alcohol or illegal drugs, (ix) defame another person, (x) infringe or violate someone else’s rights (including intellectual property rights) or denigrate a person on account of race or sex, (xi) do or permit any activity that reasonably may disable, overburden, or impair the proper working or appearance of the Secure Site, or (xii) engage in any activity or pursue any purpose that is unlawful, misleading, malicious, or prohibited by this Agreement or other rules published by the Foundation on any of its public websites.
You agree that if you should obtain Confidential Information from or by means of the Secure Site or another part of the Foundation’s systems, or otherwise in the course of your interaction with the Foundation, you will refrain from disclosing such information to any other person and will deliver to the Foundation any documents or records, regardless of form, that contain such information without making additional copies. You agree that the Foundation may enforce this promise in an action for specific performance.
Communications from the Foundation
You understand and agree that, as part of your use of the Secure Site, the Foundation or its agents may send to you certain notices from time to time, such as announcements regarding possible interruptions or other conditions that may affect access to or use of the Secure Site. You agree to accept and review electronic communications the Foundation sends to the email address you have most recently specified. Your agreement is a condition of your access to and use of the Secure Site or any Foundation Material or Communication.
Third Party Material
Material on the Secure Site may include or provide access to Third Party Material. You should assume that all Third Party Material is protected by copyright pursuant to United States laws and international treaties and is owned or licensed by the Third Party Material provider(s). By providing or making available to you, or directing you to such Third Party Material, the Foundation is not endorsing or approving such Third Party Material or its developer or owner.
No Professional Advice
You acknowledge and agree that neither the Foundation nor any employee or agent of the Foundation engages in the practice of law or accounting, or other professional or licensed service activity on behalf of you or any person other than the Foundation, and that any legal, tax, or financial information the Foundation provides it provides solely for general informational purposes and not as legal, financial or professional advice. The Foundation does not intend for you to rely on such information, and in fact advises you not to rely on it, but to consult with a legal, tax, or other advisor for information and advice related to your specific situation. The Foundation suggests that you engage your own legal or other professional counsel, as you deem appropriate, to determine the legal or other consequences before giving to or otherwise interacting with the Foundation. Each person’s tax situation is unique and likely to be affected by specific facts and circumstances that are beyond the Foundation’s control or knowledge. Additionally, tax laws and regulations, both at the federal and state levels, change frequently, and their applicability to a particular person’s circumstances can vary widely. The Foundation disclaims any responsibility for the accuracy or adequacy of any position taken by donors on their tax returns.
THE FOUNDATION PRODUCES, DELIVERS, DISPLAYS, PROVIDES, OR OTHERWISE MAKES AVAILABLE TO OR FOR YOU THE SECURE SITE, OTHER FOUNDATION SYSTEMS, ALL FOUNDATION MATERIAL OR COMMUNICATION, THIRD PARTY MATERIAL, AND ALL OTHER PRODUCTS AND SERVICES, AND THIRD PARTY MATERIAL PROVIDERS PROVIDE AND OTHERWISE MAKE AVAILABLE TO OR FOR YOU ALL THIRD PARTY MATERIAL, ON AN “AS IS” BASIS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. THE FOUNDATION AND EACH OTHER PROTECTED PARTY DISCLAIM, TO THE FULLEST EXTENT OF THE LAW, ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE SECURE SITE, FOUNDATION SYSTEMS, FOUNDATION MATERIAL OR COMMUNICATION, THIRD PARTY MATERIAL, OR OTHER PRODUCTS OR SERVICES THE FOUNDATION DELIVERS, DISPLAYS, PROVIDES, OR OTHERWISE MAKES AVAILABLE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ACCURACY AND/OR NON-INFRINGEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PROTECTED PARTIES DO NOT REPRESENT, WARRANT, OR PROMISE, AND IN FACT EXPRESSLY DISCLAIM ANY REPRESENTATION, WARRANTY, OR PROMISE, THAT
Assumption of Risk
- COMMUNICATIONS OR INFORMATION, INCLUDING PERSONAL INFORMATION, THAT YOU TRANSMIT OR DISPLAY TO, FROM, ON, OR OVER THE SECURE SITE, OR OTHERWISE TO THE FOUNDATION, WILL BE MAINTAINED AS SECURE AND CONFIDENTIAL; OR
- ANY FOUNDATION MATERIAL OR COMMUNICATION, OR ANY OTHER PRODUCT OR SERVICE THAT THE FOUNDATION DELIVERS, DISPLAYS, PROVIDES, OR OTHERWISE MAKES AVAILABLE TO YOU WILL BE ACCURATE, TIMELY, USEFUL, COMPLETE, OR HARMLESS.
YOU ASSUME ALL RISKS OF VIEWING, USING, DISTRIBUTING, REPEATING, OR ENDORSING THE SECURE SITE, OTHER FOUNDATION SYSTEMS, ANY FOUNDATION MATERIAL OR COMMUNICATION, OR THIRD PARTY MATERIAL.
Release from Liability, and Sole Remedy
YOU RELEASE AND DISCHARGE THE PROTECTED PARTIES FROM, AND COVENANT NOT TO SUE THE PROTECTED PARTIES FOR, ANY LIABILITY OR PENALTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, TANGIBLE, INTANGIBLE, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OR EXPOSURE OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) CAUSED BY OR IN ANY WAY CONNECTED WITH (1) THE SECURE SITE, (2) ANOTHER FOUNDATION SYSTEM, (3) FOUNDATION MATERIAL OR COMMUNICATION OR THIRD PARTY MATERIAL, (4) THE FOUNDATION’S PROVISON OR MAKING AVAILABLE OF ANY PRODUCTS OR SERVICES, INCLUDING SERVICES AS TRUSTEE OR CUSTODIAN, (5) ANY OTHER PUBLIC OR PRIVATE ACT OR FAILURE TO ACT OF THE FOUNDATION, OR (6) ANY INTERACTION BETWEEN YOU AND THE FOUNDATION OR ITS SYSTEMS THAT IS RELATED TO THE CONSIDERATION, MAKING, FACILITATION, COMPLIANCE OR FULFILLMENT, RECEIPT, RECORDING, MAINTENANCE, MANAGEMENT, ADMINISTRATION, EXPLOITATION, LIQUIDATION, EXPENDITURE, OR GRANT OF GIFTS OR OTHER TRANSFERS TO THE FOUNDATION, PROPERTY TRANSFERRED OR ITS PROCEEDS, OR YOUR RECOMMENDATIONS OF GRANTS OR INVESTMENTS, INCLUDING BUT NOT LIMITED TO DIMINUTION IN FUND VALUE, AND OTHER DAMAGES CAUSED BY YOUR VIEWING OR OTHER USE OF, OR RELIANCE UPON, ANY FOUNDATION MATERIAL OR COMMUNICATION OR THIRD PARTY MATERIAL, BY INTERACTION WITH THIRD PARTIES INTRODUCED TO YOU BY THE FOUNDATION, BY HANDLING OR MISHANDLING OF ANY OF YOUR USER NAMES OR PASSWORDS, BY CORRUPTED, DISTORTED, OR ERRONEOUS DATA, OR BY THEFT, UNAUTHORIZED ACCESS TO, OR DESTRUCTION OF PERSONAL OR OTHER INFORMATION, REGARDLESS OF CIRCUMSTANCES, AND WHETHER OR NOT SUCH DAMAGE RESULTS IN WHOLE OR IN PART FROM A PROTECTED PARTY’S BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR OTHER ACTION OR OMISSION, EVEN IF ONE OR MORE OF THE PROTECTED PARTIES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BUT NOT TO THE EXTENT SUCH DAMAGE RESULTS FROM A PROTECTED PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
IF YOU ARE DISSATISFIED WITH ANY ASPECT OF YOUR INTERACTION WITH THE FOUNDATION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE SUCH INTERACTION. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE FOREGOING LIMITATIONS OR EXCLUSIONS OF LIABILITY, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE PROTECTED PARTIES FOR ANY REASON WHATSOEVER RELATED TO YOUR INTERACTION WITH THE FOUNDATION MAY NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR FOUNDATION SERVICES, WHICH DOES NOT INCLUDE THE AMOUNT OF ANY GIFTS YOU MAKE TO THE FOUNDATION.
You agree to indemnify a protected party from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or connected in any way to any claims, actions, suits or demands that are based on or related to any breach by you of this Agreement, OR IF YOU AND THE FOUNDATION HAVE ENTERED INTO A CUSTODIAL OR TRUST AGREEMENT AS DESCRIBED ABOVE, THAT ARE BASED ON ANY LOSS OR DIMINUTION IN VALUE OF THE CUSTODIAL FUND OR TRUST PROPERTY, except to the extent arising from a protected party’s gross negligence or INTENTIONAL misconduct.
The Foundation will not terminate any advisory rights, including any right you have to designate persons to exercise advisory rights, that you have regarding grants to be made of any cash or other property you have given to the Foundation or its proceeds unless you breach this Agreement, except that the Foundation may terminate your advisory privileges if you are a person a donor has designated to have such privileges and that donor rescinds the designation. However, the Foundation expressly reserves the right to terminate, limit, or modify any license it has granted to you in this Agreement, your access to the Secure Site or any other component of its systems, the functionality or content of the Secure Site, its provision of or your access to any Foundation Material or Communication or Third Party Material, or its provision of any products or services, and to remove any communication or information you post or otherwise record on the Secure Site or any other part of the Foundation’s systems, without notice and for any reason it deems appropriate in its discretion, including your failure to comply with the Agreement, or its suspicion of fraudulent or unlawful activity by you. (This reservation of right does not limit other actions the Foundation may take in the event of actual fraud or unlawful activity.)
To the extent you download or provide a link to the Foundation’s donate button, the Foundation hereby grants you a personal, revocable (at any time and for any reason in the discretion of the Foundation), non-exclusive, non-transferable, limited license (without the right to sublicense), only for the Foundation’s charitable purposes, and only in accordance with rules that the Foundation publishes from time to time, to display or use the functions of the donate button. You represent and agree that you will use the donate button exclusively to facilitate transfers of property to the Foundation.
Dispute Resolution and Choice of Law
This Agreement is governed by and must be interpreted in accordance with the laws of the State of Georgia, without reference to its conflicts of law principles. You agree that any dispute between you and the Foundation or any other Protected Party other than a provider of Third Party Material which is not otherwise disposed of by private agreement and arises out of or in any way relates to the Agreement, Secure Site, gifts you have made (or alleged to have made) to the Foundation, services the Foundation provides or fails to provide, or other subjects of this Agreement is to be resolved by binding arbitration in accordance with the rules of the Institute for Christian Conciliation, without recourse to any court or tribunal except to the extent necessary to enforce said Institute’s arbitral award or finding. You also agree that any such dispute resolution proceedings will be conducted on an individual basis and not in a class, consolidated, or representative action. You hereby consent to the exclusive jurisdiction of the state or federal courts located in the State of Georgia, specifically the Superior Court of Gwinnett County, Georgia, and the United States District Court for the Northern District of Georgia, to enforce any arbitral award or resolve any dispute regarding the enforceability or applicability of this arbitration provision, or to resolve any other dispute described in this provision in the event this arbitration provision is determined to be unenforceable with regard to or inapplicable to such dispute.
You acknowledge and agree that any unauthorized use or disclosure by you of the Secure Site, another Foundation system, Confidential Information, or any infringement or other violation of the intellectual property rights of the Foundation or any other person in any Foundation Material or Communication or Third Party Material, or other intellectual property rights of the Foundation, will cause irreparable injury for which the Foundation or the other person cannot be fully compensated by money damages. You agree that, in the event of such a violation, the Foundation or the other person may seek and recover (in addition to any other available remedies) preliminary and permanent injunctive relief, without the necessity of posting bond or security, and further may recover from you its reasonable attorneys’ fees and costs incurred in seeking and obtaining such relief.
The failure of the Foundation to insist on strict performance of any of the terms of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver by the Foundation of any right under the Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time unless acknowledged and agreed to by the Foundation in writing.
You may not assign your rights and obligations under this Agreement, in whole or in part, without the Foundation’s prior written consent, and any such assignment without such consent will be null and void. The Foundation may assign its rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit of the parties hereto and their permitted successors and assigns.
Integration, Severability, and Reservation of Rights
If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the Agreement and will not affect the validity and enforceability of the remaining provisions, which must be construed, as nearly as possible, to reflect the intentions of the parties, and to remain in full force and effect.
Except as provided herein to the contrary, the terms of this Agreement comprise the entire agreement between you and the Foundation with respect to its subjects, and supersede any prior agreements with respect to such subjects.
Any rights not expressly granted herein are reserved.
QUESTIONS OR ADDITIONAL INFORMATION
If you have questions regarding the Agreement or wish to obtain additional information regarding the Foundation or the Secure Site, please call 678.825.1040.
The foregoing Agreement is effective as of November 22, 2019.