Employee Engagement Terms of Service

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this
   • “Associated Companies” means concerning the Customer, any person, firm, trust, partnership, corporation, company, or other entity or combination thereof, which directly or indirectly (a) controls the Customer, (b) is controlled by the Customer, or (c) is under common control with the Customer; the terms “control” and “controlled” meaning ownership of fifty percent (50%) or more, including ownership by one or more trusts with substantially the same beneficial interests, of the voting and equity rights of such person, firm, trust, partnership, corporation, company or other entity or combination thereof or the power to direct the management of such person, firm, trust, partnership, corporation, company or other entity or combination thereof.
   • Application” means the Charity Miles Application which is available on iPhones and Android Phones.
   • “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
   • “Privacy Policy” means Vendor’s privacy policy, currently posted at https://charitymiles-old.projectwebtec1.com/privacy-policy/, as the same may be updated from time to time.
   • “System” means Vendor’s app, Charity Miles, which enables: (i) Users to earn money for charity when they walk, run, or bike; and (ii) Companies to create private teams for and sponsor their employees for charity when they walk, run or bike.
   • “Term” is defined in Section 10 below.
   • “Terms of Use” means the Vendor’s terms of use, currently posted at https://charitymiles-old.projectwebtec1.com/terms-of-use/, as the same may be updated from time to time.
   • “User” means any individual who uses the System on the Customer’s behalf or through the Customer’s account or passwords, whether authorized or not.
2. THE SYSTEM.
   • Use of the System. During the Term, Customer and Customer’s Users may access and use the System under Vendor’s Terms of Use and this Agreement.
     • The System enables the Customer to create a private team (“Customer’s Team”) in the Application for its Users. The Customer’s Users can download the Application for free from their iPhone or Android phone’s Application store.  The Customer’s Users can register and log into the Application with either: (i) their Facebook account; or (ii) an email address and password. 
     • To first access the Customer’s Team, Users will take the following steps:
       • Click on the “suitcase” button on the Application’s home screen.
       • Enter their company email address (for each User, their “Company Email Address”). This will send them an automatic email to that address with an activation link.
       • Click the activation link in the aforementioned email.
     • Once a User has clicked the aforementioned activation link, they will be able to access the Customer’s Team in the App. Each month, the System will send each user an automatically generated report (a “Monthly Report”) to their Company Email Address.  Each Monthly Report will summarize their and the Customer’s overall activity over that month.  If successive emails to a User’s Company Email Address bounce, it will be deemed that the User is no longer employed by the Company and the User will be removed from Customer’s Team.
     • Customer shall also have access to a dashboard (the “Dashboard”) whereupon it can, amongst other things: (i) view its company’s activities; (ii) create challenges for its employees; (iii) create sponsorships for its employees; and (iv) run reports on its company’s activities, challenges and sponsorships. Customer’s employees who are administering the System on behalf of Users shall be able to access the Dashboard with a single email address and password chosen by the Customer.
     • If the Customer elects to sponsor its employees in the System, it shall:
       • Choose whether to sponsor its employees for (x) any charity they choose in the Application (in each case, the “Employee Charity”); (y) any charity of the company’s choice (in each case, a “Company Charity”); or both;
       • Choose whether the sponsorship shall recur monthly or run only for a certain period;
       • Choose the rate per mile at which it shall sponsor its employees; and
       • Choose whether to limit its sponsorship: (x) on a per-employee basis; or (y) for the company as a whole (and in either case determine said limit).
     • The Customer’s sponsorship terms (“Sponsorship Terms”) shall be displayed in the Application to Customer’s Users on the Customer’s Team Page. The Application shall also show each of the Customer’s Users how much money they have earned for their respective Employee Charity and/or the Company Charity under the Sponsorship Terms.
     • The Dashboard shall also show the Customer the aggregate sponsorship amount earned by its employees.
     • The customer can edit its Sponsorship Terms at any time, in which case such revised Sponsorship Terms shall take effect from the date of such revision. Customer’s revision of such Sponsorship Terms shall not retroactively affect any amounts that Customer’s Users have earned for their Employee Charity or a Company Charity before such revision.
   • Service Levels. During the Term, Vendor shall use commercially reasonable efforts to, at its own expense: (i) continue to make the Application available to Users in their respective phones’ application stores; (ii) update the Application to comply with system upgrades on Users’ phones; (iii) maintain the Application in a manner that does not result in downtime; and promote the App.
   • Notwithstanding the above, Vendor makes no representation or guarantee that the Application will work on every Phone. There are a variety of factors that can affect the Application’s performance on different phone types including (but not limited to): (i) the age of the person’s phone; (ii) their phone’s operating system; (iii) their GPS reception; (iv) their battery performance; (iv) their model of phone (particularly for Android phones); (v) their cellular or internet reception; (vi) user error. 
   • System Revisions. The vendor may revise System features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided under this Agreement, Customer may within 30 days of notice of the revision terminate this Agreement.
3. SYSTEM FEES.
   • Subscription Fee. The customer will pay Vendor an annual fee outlined in the Purchase Order within 30 days of the execution of this Agreement (the “Subscription Fee”). The vendor will not be required to refund the Subscription Fee under any circumstances. 
   • Sponsorship Amounts.
     • Every month, the Customer will also pay Vendor the aggregate amount earned by the Customer’s Users under the Customer’s Sponsorship Terms for Employee’s Charities (the “Monthly Sponsorship Amount”). The vendor shall disburse the Monthly Sponsorship Amount to the respective Employees’ Charities in the amounts earned by each employee.
     • To the extent that the Customer has elected to sponsor a Company Charity, the Customer shall pay the aggregate amount earned by Customer’s Users under the Sponsorship Terms directly to the Company Charity.

4. CUSTOMER DATA & PRIVACY.
   • Use of Customer Data. Vendor: (a) will not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) will not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. The vendor will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
   • Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third-party website or service linked to the System or recommended or referred to through the System or by Vendor’s
   • Company Email Addresses. Vendor shall not email or otherwise use any Company Email Address for any purpose other than to send Users Monthly Reports and other communications that are related to their participation on Customer’s Team.  
   • Risk of Exposure. The customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, the Customer assumes such risks. The vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. However, Vendor represents and warrants that it has implemented administrative, physical, and technical safeguards to protect the personal information that is no less rigorous than accepted  applicable industry standards for information security, and shall ensure that all such safeguards, including how personal information is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement
   • Data Accuracy. The vendor will have no responsibility or liability for the accuracy of data uploaded to the System by the Customer, including Customer Data and any other data uploaded by Users.
   • Data Deletion. The vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
   • Acceptable Use. Customer will not: (a) allow third parties to exploit the System (except as contemplated herein); (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. If it suspects any breach of the requirements of this Section 1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have.
   • Unauthorized Access. The customer will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. The customer will notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.
   • Compliance with Laws. In its use of the System, each will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
   • Users & System Access. Customer is responsible and liable for (a) its Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
   • IP Rights to the System. The vendor retains all rights, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. The customer recognizes that the System and its members are protected by copyright and other laws.
   • Feedback. The vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of the Vendor’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items either party to this Agreement discloses to the other party: (a) any document marked “Confidential”; (b) any information a party orally designates as “Confidential” at the time of disclosure, and (c) any other nonpublic, sensitive information the receiving party of the information should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the non-disclosing party’s possession at the time of disclosure; (ii) is independently developed by the non-disclosing party customer without the use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the non-disclosing party’s improper action or inaction; or (iv) is approved for release in writing by the disclosing party. Each party is on notice that the Confidential Information may include the disclosing party’s valuable trade secrets.
   • Nondisclosure. The non -disclosing party: (a) will not disclose Confidential Information to any employee or contractor of the non-disclosing party unless such person needs access to facilitate the obligations of the non-disclosing party under this Agreement and executes a nondisclosure agreement with a non-disclosing party with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without disclosing party’s prior written consent. Without limiting the generality of the foregoing, the non-disclosing party will protect Confidential Information with the same degree of care it uses to protect its confidential information of similar nature and importance, but with no less than reasonable care. The non-disclosing party will promptly notify the disclosing party of any misuse or misappropriation of Confidential Information that comes to its attention. Notwithstanding the foregoing, the non-disclosing party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The non-disclosing party will give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at disclosing party’s expense.
   • Injunction. The parties agree that breach of this Article 7 would cause the disclosing party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the disclosing party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
   • Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Disclosing party will retain all rights, titles, and interests in and to all Confidential Information.
8. REPRESENTATIONS & WARRANTIES.
   • From Vendor. Vendor represents and warrants that (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business under applicable law and (c) it will perform its obligations under this Agreement in compliance with applicable law. Vendor further represents and warrants that it is the owner of the System and of every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this Section 1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with the Customer’s right to terminate for breach where applicable.  The preceding sentence states the Vendor’s sole obligation and liability other than as outlined in Section 9(b) of this Agreement,  for breach of the intellectual property warranty in the preceding sentence of this Section 8.1 and potential or actual intellectual property infringement by the System.
   • From Customer. Customer represents and warrants that (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business under applicable law and (d) it will perform its obligations under this Agreement by applicable laws.
   • Warranty Disclaimers. Except to the extent outlined in Section 1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR, AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. (a)Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Customer Indemnified Claim,” which means any third party claim, suit, or proceeding to arise out of or related to Customer's negligence or alleged or actual use of, misuse of, the System other than by the Terms of Use. I Customer’s obligations outlined in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

(b) Vendor will defend, indemnify, and hold harmless Customer and the Customer’s Associates (as defined below) against any Vendor Indemnified Claim meaning any third party claim, suit, or preceding arising out of or related to Vendor’s negligence or a claim that the System infringes on the intellectual property of a third party.  The vendor’s obligations in this Article 9 include the retention and payment of attorneys and payment of court costs, as well as settlement (which will not be effected without the Customer’s consent) at the Vendor’s expense and payment of judgments.  The Customer Associates are Customer’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.  LIMITATION OF LIABILITY.

• Dollar Cap. EXCEPT CONCERNING A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OUTLINED IN SECTION 7 OF THIS AGREEMENT, THE INDEMNIFICATION OBLIGATIONS OUTLINED IN SECTION 9 OF THIS AGREEMENT, AND THE VENDOR’S NEGLIGENCE OR FRAUD, THE VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER TO VENDOR.
• Exclusion of Consequential Damages. IN NO EVENT WILL THE VENDOR BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT?
• Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, the Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights outlined in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other repr

10. Term & Termination.
    • Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for twelve (12) months. Thereafter, the Term will renew for successive one-year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
    • Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless the other party first cures the breach.
    • Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the System. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

• MISCELLANEOUS.
  • Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
  • Notices. Vendor may send notices under this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customers may send notices under this Agreement to support@charitymiles-old.projectwebtec1.com, and such notices will be deemed received 72 hours after they are sent.
  • Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
  • Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent other than to Associated Companies or in the case of a sale of all or substantially all the assets of the Customer or a merger of the Customer or similar transaction. Except to the extent forbidden in this Section 4, this Agreement will be binding upon and inure to the benefit of the party's respective successors and assigns.
  • Severability. To the extent permitted by applicable law, the parties at this moment waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
  • No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
  • Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of New York, including without limitation applicable federal law, without reference to (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York. This Section 7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
  • Conflicts. In the event of any conflict between this Agreement and any Vendor, policy posted online, including without limitation the Terms of Use or Privacy Policy, the terms of this Agreement will govern.
  • Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions concerning its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
  • Amendment. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 10, Vendor may revise the Privacy Policy and Terms of Use at any time by posting a new version of either on the Website, and such a new version will become effective on the date it is posted.