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Participation Agreement

Participation Agreement

 

This Jewel in Giving Participation Agreement (“Participation Agreement”) contains the terms and conditions that govern your participation in The Jewel In Giving LLC/The Jewel In Giving Foundation donation program described in this Participation Agreement (“The Program”).  “We,” “us,” or “our” refers to The Jewel in Giving Foundation and/or The Jewel in Giving LLC (collectively, “Jewel in Giving”), and “you” or “your” refers to the charitable organization participating or seeking to participate in the Program.  By 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 (defined in Paragraph 2) to receive donations from Jewel in Giving Foundation when customers make Qualifying Purchases (defined in Paragraph 7) on the Jewel in Giving Website (“Website”) and receive access to our customer information, the consignment program as discussed below and the marketing and fundraising tools we provide to our Registered Organizations.

 

  1. Registration. Jewel in Giving customers can select Registered Organizations to receive disbursements from the Program. To register, you must accept this Participation Agreement without modification, complete the registration process, properly provide all requested information, pay the Participation Fee if required at the time of registration described in Paragraph 5, submit a complete and accurate Program application that correctly identifies your charitable organization and provide valid bank account information as described in Paragraph 8.  We reserve the right to reject or suspend your registration if the requested information (including representative and bank account information) is inaccurate or incomplete or if you are otherwise not in compliance with this Participation Agreement. If your registration is accepted, your charitable organization will be a “Registered Organization” for as long as all of your registration information, including the bank account information described in Paragraph 8, is current and complete, this Participation Agreement remains in force, and you continue to be an Eligible Organization as described in Paragraph 3.  You will ensure that all information you provide to us, including your Program application information, bank 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.

 

  1. Eligible Organizations

3.1  “Eligible Organizations” are those charitable organizations that we determine, in our sole discretion:

  1. are qualified under Section 501(c)(3) of the U.S. Internal Revenue Service Code;
  2. are not Supporting Organizations, unless identified specifically as Type I,

Type II, or functionally integrated Type III Supporting Organizations (as 

defined in the U.S. IRS Code);

  1. are headquartered in the United States (the 50 States and the District of 

Columbia);

  1. are in good standing in their state of incorporation and in the states where

they are authorized to do business;

  1. do not engage in, support, encourage, or promote:

(i) intolerance, discrimination or discriminatory practices based on 

race, sex, religion, nationality, disability, sexual orientation, or age;

(ii) hate, terrorism, or violence;

(iii) money laundering;

(iv) other illegal, deceptive, or misleading activities; and

(v) are otherwise not in violation of the terms of this Participation 

Agreement.

3.2  We may rely on information services such as Charity Navigator and GuideStar for assistance in making our eligibility determinations.  

 

  1. Cooperation. From time to time, we may request information from you in order to verify your compliance with the Participation Agreement, including whether you meet, or continue to meet, the definition of an Eligible Organization. You agree to cooperate with us and promptly satisfy such requests. Upon our request, you will provide us with written certification, in substantially the form requested by Jewel in Giving, that you have complied with the Participation Agreement. In addition, you consent to us monitoring your site to verify your compliance with the Participation Agreement, and you will provide copies of content on offline versions of your site upon request. You also consent to us monitoring and using information about our customers in connection with their use of the links to your website and our Website.

 

  1. Registration and Optional Upgrade Fees

5.1 Jewel in Giving reserves the right to charge all Eligible Organizations  a one time, non-refundable registration fee of $250.00 to become a Registered Organization.  Payment of this fee entitles the Registered Organization to participate in this Program until (i) the Program is terminated pursuant to the terms of this Agreement or (ii) the Eligible Organization is no longer a Registered Organization. There are two types of enrollment programs for Registered Organizations: Participation and Marketing Program and Ongoing Marketing Program.  

5.2 Participation and Marketing Program.  Registered Organizations are automatically enrolled in the Participation and Marketing Program for one year upon payment of the registration fee (“Initial Period”).  If there is no registration fee, then the Eligible Organization shall be treated as a Registered Organization during the Initial Period.  In addition to the ability to receive donations from Jewel in Giving Foundation when customers make Qualifying Purchases from Jewel in Giving,  Registered Organizations enrolled in the Participation and Marketing Program will receive fundraising materials distributed by Jewel in Giving during the Initial Period. They will also receive contact information for customers who have donated to the Registered Organization through the Program which will enable the Registered Organization to cultivate an ongoing relationship with the customer. Participants in the Participation and Marketing Program are also eligible to participate in the Jewel in Giving consignment program described at www.nonprofits.thejewelingiving.com (the “Portal”)  during the Initial Period.  

5.3 Ongoing Marketing Program.  Registered Organizations who choose to enroll in the Ongoing Marketing Program will continue to receive the fundraising materials, have access to the information about the customers who have donated to them through the Program and be eligible to participate in the Jewel in Giving consignment program after the Initial Period for an annual non-refundable fee of $100.00.  Registered Organizations are automatically enrolled in the Ongoing Marketing Program each year following the Initial Period unless Jewel in Giving receives written notification thirty (30) days prior to the expiration of either the Initial Period or each subsequent twelve (12) month renewal period.  Written notification will be emailed to the Registered Organization notifying them of the automatic renewal and requesting an email from the Registered Organization if they choose not to continue in the Ongoing Marketing Program.

 

  1. Responsibilities of Registered Organizations

6.1 You will be solely responsible for your organization, your own website, and actions taken by you or on your behalf, including:

  1. ensuring that any donation amounts that we make to you are used in accordance with applicable law and your stated mission;
  2. any misrepresentation of your relationship with a charitable organization, registration of a charitable organization that you are not authorized to act on behalf of, or any other failure to provide true and accurate information in your registration, including if such failure results in you not receiving the amount of donations you would have otherwise received from the Program; and
  3. ensuring you are duly authorized to enter into and perform your obligations under this Participation Agreement and that you do not violate any term or condition of this Participation Agreement.

6.2. By using this Website and participating in the Program, you agree to indemnify, defend, and hold harmless Jewel in Giving and the Jewel in Giving Foundation, and our independent contractors, service providers, members, managers, employees, agents, licensors and suppliers from and against any claims and damages, including but not limited to expenses, loss of use, loss of profits, costs, and reasonable attorneys' fees, relating to any charitable donations made through our Website or otherwise resulting from your participation in the Program, your obligations pursuant to this Participation Agreement, mistakes, omissions, interruptions, deletion of files or emails, errors, defects, viruses, failure of performance, theft, or any activity related to your account, and/or wrongful conduct or any negligence performed by you or any other person accessing our Website or the Portal.

6.3 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). From time to time, Jewel in Giving may forward marketing materials to the Registered Organizations to assist the Registered Organizations in motivating its members to take advantage of the Jewel in Giving donation program.  We request that you forward such materials to your members and send timely acknowledgements to your members who have designated you as the charitable beneficiary of their donations.

  1. Qualifying Purchases

7.1 We will make donations to you resulting from Qualifying Purchases in accordance with Paragraph 8.  Subject to the exclusions set forth below, a "Qualifying Purchase" occurs when (a) a customer purchases a Product from the Jewel in Giving Website; (b) at such time, that customer has selected your Registered Organization to benefit from purchases the customer makes on the Jewel in Giving Website; and (c) the Product is shipped to and paid for by the customer.

7.2 Qualifying Purchases exclude, and you will not be eligible for disbursements in connection with any of the following:

  1. any Product purchased after termination of this Participation

Agreement or purchased in connection with a violation of this

Participation Agreement; or

  1. any Product order that is canceled or returned.

 

  1. 8. Donations

8.1 Donations from us to Registered Organizations are based on Qualifying Purchases shipped in a given calendar quarter, and not subsequently returned.  Donations for each calendar quarter will be made approximately forty five (45) days following the end of that quarter. To account for Product returns that are made after the end of a calendar quarter, we reserve the right in our sole discretion to withhold a portion of your quarterly donations for disbursement during the next donation cycle, subject to any reduction due to returns or cancellations from prior quarters. If we determine that we have made an overpayment in donations to you as a result of returns not offset by donations held back to account for returns, 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.

8.2 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 donation that would have been made to you instead to one or more other Registered Organizations.

8.3 When making donations to Registered Organizations, we will, at our discretion, either send a check to you or directly deposit donations to you into a U.S. bank account you designate. We reserve the right to accrue and withhold donations for any Registered Organization 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 two consecutive quarters.

8.4 You must promptly provide us with accurate and complete bank account information, including the bank account type, the 9-digit routing number/ABA number, the account number, and the name of the primary account holder as it appears on the account, in addition to a voided check or bank statement (as set forth in the Program application). If you do not provide this information, the information is not valid (for example, the account has been closed or changed), or a donation is otherwise rejected by your bank, 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.

8.5 If an Eligible Organization that is not a Registered Organization 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 Organization. However, if such an Eligible Organization does not promptly become a Registered Organization, 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 Organizations, in our sole discretion.

8.6 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.

 

  1. 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, and for our termination notice will require either making a notice available for your review the Portal 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 9, 12, 13, 14, 16, 17 and 18 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 Paragraph 8. 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.

 

  1. Modification We reserve the right to modify any of the terms and conditions contained in this Participation Agreement at any time and in our sole discretion by posting a change notice of the revised agreement on the Portal, 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 PARAGRAPH 9. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (FOR EXAMPLE, THE DATE OF OUR POSTING OF A CHANGE NOTICE OR REVISED PARTICIPATION AGREEMENT ON JEWEL IN GIVING DONATION PORTAL OR THE EFFECTIVE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.

 

  1. Relationship of Parties

11.1 You and we are independent contractors, and nothing in this Participation Agreement 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 behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this Participation Agreement.  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.

11.2 You may not promote or link to the Jewel in Giving Website, or otherwise take any action, that is (i) misleading or confusing to our customers, (ii) that does not accurately represent the Jewel in Giving Website or the Program, or (iii) that could reasonably cause any customer confusion as to our relationship with you (for example, by expressing or implying that we have entered into a partnership with you, that we sponsor or endorse you or any other cause or that we support your position on any issue).

 

  1. Limitation of Liability. IN NO EVENT SHALL JEWEL IN GIVING OR THE JEWEL IN GIVING FOUNDATION, ITS MEMBERS, MANAGERS, EMPLOYEES,  AFFILIATES OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE OR DATA, WHETHER IN CONTRACT, TORT OR OTHERWISE INCLUDING NEGLIGENCE) THAT ARISE OR RESULT FROM YOUR PARTICIPATION IN THE PROGRAM,  YOUR USE OF, OR THE INABILITY TO USE, THE WEBSITE OR PORTAL OR THAT RESULTS FROM THE RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF THE LOSS DAMAGE OR EXPENSE WAS CAUSED BY JEWEL IN GIVING, OUR MEMBERS, MANAGERS EMPLOYEES, AFFILIATES OR AGENTS. FURTHER, THE AGGREGATE LIABILITY FOR US ARISING IN CONNECTION WITH THIS PARTICIPATION AGREEMENT WILL NOT EXCEED $100. 

 

  1. Disclaimers The Program, Website, Portal, any products offered on the Jewel in Giving Website, any content, the domain name, 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, 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 any errors, inaccuracies, or service interruptions, including power outages or system failures.   No advice or information obtained by you from us or from any other person or entity or through the Program, content, operational documentation, or the Jewel in Giving Website 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 (a) any loss of prospective profits or revenue, anticipated sales, goodwill, or other benefits, (b) any investments, expenditures, or commitments by you in connection with this Participation Agreement or your participation in the Program, or (c) any termination or suspension of this Participation Agreement or your participation in the Program.

 

  1. Disputes

14.1 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 Florida, 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.  The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes.  Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.

14.2 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 or proprietary rights.  In such case, the parties submit and consent to the exclusive jurisdiction of the state and federal courts, as applicable, located in the County of Palm Beach, State of Florida or the United States District Court for the Southern District of Florida, West Palm Beach Division.  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.

14.3 This arbitration provision shall survive the termination of these Conditions as well as any other contractual agreement that you have with us.

 

  1. Limited License

15.1. License to you: Subject to the terms of the Participation Agreement and solely for the limited purposes of advertising, and directing end users to, the Jewel in Giving Website in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy and display our content in accordance with the Participation Agreement.  

15.2. License from you: Solely for the limited purposes of promoting and operating the Website, you hereby grant each of the Jewel in Giving Foundation and Jewel in Giving a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy, display and use your trademarks and logos (“Your Marks”), subject to your final approval and consent.

15.3. The licenses set forth in this Paragraph 15.1 will immediately and automatically terminate upon your notification to us that you no longer want to participate in the Program, or otherwise upon termination of the Participation Agreement.

 

  1. Reservation of Rights; Submissions Other than the limited licenses expressly set forth in Paragraph 15, we reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of the Participation Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, content, any domain name owned or operated by us, and any other intellectual property and technology that we provide or use in connection with the Program. Other than Your Marks, if you provide us with suggestions, reviews, modifications, data, images, text, or other information or content in connection with the Program, the Participation Agreement, or if you modify any content in any way, (collectively, “Your Submission”), you hereby irrevocably grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to: (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (a) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (b) our exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission. 
  2. Trademark Usage Guidelines

17.1 YOU ARE ALLOWED TO USE THE JEWEL IN GIVING TRADEMARKS  (“OUR MARKS”) ONLY WITH THE PURPOSE OF ADVERTISING THE PROGRAM AND AVAILABILITY OF PRODUCTS ON THE JEWEL IN GIVING WEBSITE, WITH A CORRESPONDING LINK TO OUR WEBSITE. 

17.2. You agree that we have the right to monitor the quality of your use or display of our Marks and you will facilitate such monitoring as necessary.

17.3. You agree that any use of our Marks in violation of this Agreement will automatically terminate any license related to your use of our Marks.

17.4 Your use of the our Marks must (i) comply with the most up-to-date version of this Agreement; and (ii) comply with any other terms, conditions, requirements, and policies that we may issue from time to time that apply to the use of our Marks, including the most up-to-date version of the Participation Agreement.

17.5 You cannot use or display our Marks for any purpose or in any manner not specifically authorized under the Participation Agreement and Operational Documentation. For example, you cannot make any use or display (i) that implies sponsorship or endorsement by us; (ii) to disparage us, our products, or our services; or (iii) that may, as determined by us, diminish or otherwise damage our goodwill in any Jewel in Giving Mark.

17.6 All rights in and to our Marks are our exclusive property, and any goodwill generated by your use of any Jewel in Giving Mark will inure to our exclusive benefit. You will not take any action that is in conflict with our rights in or ownership of any Jewel in Giving Mark.

17.7 We reserve the right to take appropriate action against any use without permission or any use that does not conform with the provisions of this Agreement, at any time and in our sole discretion.

 

  1. Miscellaneous. By accepting this Participation Agreement you hereby consent to us sending your organization emails 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. 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.

 

Signed on behalf of The Jewel In Giving,

Lisa Goodman, CEO

 

Last revised: August 13, 2020

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