1. Scope of Platform
Resupply provides a digital marketplace (the “Platform”) that provides a logistics solution and connects individuals and organizations that seek to make donations(the “Donors”), third-party services that can transport such donations (the “Logistics Providers”), and charities, not-for-profits, that can accept such donations(for purposes hereof, you are hereinafter referred to as “Charity”). Resupply shall grant Charity a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Platform, and (ii) access and view certain limited data and content that Resupply, Donors, other charities, and Logistics Providers make available on or through the Platform (“Platform Content”)which shall be solely used for internal business purposes.
Charity acknowledges and agrees that when a Donor makes a property donation to Charity arranged through the Platform, the Charity shall maintain discretion to accept or reject any portion of the property donation without liability to the Donor. Additionally, Charity does not contract with, is not a third-party beneficiary of any contract with, and does not have any liability to Logistics Provider or Donor for exercising its discretion to accept or reject the property donation arranged through the Platform. Resupply does not take custody or title of any property donated to Charity by any Donor (whether delivered through a Logistics Provider or otherwise) and does not serve any Donor or Charity as an agent or in any other capacity with respect to donated property. CHARITY ACKNOWLEDGES THAT ITS ABILITY TOREQUEST, AND IF APPLICABLE, OBTAIN DONATIONS FROM DONORS AND SERVICES FROMLOGISTICS PROVIDERS IN CONNECTION WITH THE USE OF THE RESUPPLY PLATFORM DOESNOT ESTABLISH RESUPPLY AS (i) THE OWNER OF ANY OF THE PROPERTY DONATIONS MADEBY DONORS; NOR (ii) A PROVIDER OF TRANSPORTATION, LOGISTICS OR DELIVERYSERVICES OR AS A TRANSPORTATION OR PROPERTY CARRIER. RESUPPLY ACKNOWLEDGESAND AGREES THAT CHARITY IS NOT LIABLE FOR ANY DAMAGE CAUSED BY LOGISTICSPROVIDERS WITH RESPECT TO PICKING UP DONATIONS FROM DONORS.
2. Representations and Warranties
Charity represents, warrants and covenants to Resupply that: (i) it is a nonprofit corporation duly organized and validly existing in good standing under the applicable laws of the jurisdiction of its organization; (ii) it is and will continue to be recognized by the Internal Revenue Service as an organization exempt from federal income tax under Section 501(a) of the Internal Revenue Code of 1986, as amended (the “Code”), as an organization described in Section 501(c)(3) of the Code; and (iii) it has full corporate power and authority to enter into the Order Form and perform its obligations hereunder and thereunder.
3. Account Registration
Upon executing the Order Form, Charity shall register and maintain only one account in order to access and use the Platform (the “Charity Account”). Charity shall provide accurate, current and complete information (the “Charity Content”) during the registration process for the Charity Account, and Charity shall update and keep the Charity Content current at all times. Charity may not assign or otherwise transfer the Charity Account to another party.
4. Donor Information
Resupply may provide Charity with certain Donor information, subject to applicable law, to help facilitate interactions between Donors and Charity. Charity shall keep all such Donor information strictly confidential and may not disclose it to any third party, but may use it for purposes to advance the Charity’s mission, for future fundraising, and for its regular operations.
5. Intellectual property rights
The Platform and all content, materials, information, functionality and other materials displayed, performed, contained or available on or through the Platform, including, without limitation, the Resupply logo, and all designs, text, graphics, pictures, information, data, sound files, images, illustrations, software, other files, content provided by other charities or Donors, and the selection and arrangement thereof (collectively, the “Materials”) are the proprietary property of Resupply or of their respective owners, and may in their entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. Charity shall not use, reproduce, reprint, publish, or otherwise exploit the Materials or Resupply's technology.
During the Term, Charity hereby grants to Resupply the express right to its use name, logo and/or trademark (the “Charity Intellectual Property”) without notice to or consent by Charity, in marketing, sales, and public relations materials and other communications that Resupply may disseminate to the public solely in order to identify Charity as a charity participant of Resupply. Nothing herein obligates Resupply to use the Charity Intellectual Property in any promotional materials of Resupply. Resupply shall cease to use the Charity Intellectual Property upon: (i)termination of this Agreement pursuant to Section 9; or (ii) Charity’s written notice to Resupply withdrawing consent, whichever is sooner. Charity represents and warrants that it is either (i) the sole and exclusive owner of the Charity Intellectual Property, or (ii) has all rights, licenses, consents and releases that are necessary to grant to Resupply the rights in and to such Charity Intellectual Property as contemplated under this Section 5.
6. Discontinuance of the Platform
Resupply may, in its sole discretion and without liability to Charity, modify, discontinue, terminate, suspend or shut-down (temporarily or permanently) all or any portion of the Platform at any time, with or without prior notice. Upon any such discontinuance, termination, suspension, or shutting down by Resupply, Charity must immediately stop using the Platform during such discontinuance, termination, suspension or shutting down.
Charity shall not: (i) provide false, inaccurate or misleading information on the Charity Account; (ii) use or attempt to use another charity’s account; (iii)remove any copyright, trademark or other proprietary notices from any portion of the Platform; (iv) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Platform Content except as expressly permitted by Resupply; (v) decompile, reverse engineer or disassemble the Platform except as may be permitted by applicable law; (vi) link to, mirror or frame any portion of the Platform; (vii)cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Platform; or(viii) attempt to gain unauthorized access to or impair any aspect of the Platform or its related systems or networks.
8. Access Moderation
Charity agrees that Resupply may moderate access to and use of the Platform in Resupply’s sole discretion through any means (including, for example, blocking, filtering, deletion, delay, omission, verification, and/or termination of Charity’s access). Furthermore, in addition to any other rights and remedies hereunder, Resupply may remove Charity from the Platform if, in Resupply’s sole discretion, any Charity Content does not comply with these Terms or any other Platform requirements or policies provided or made available to Charity.
This Agreement shall be perpetual. Either party may terminate this Agreement, with or without cause, upon giving the other party thirty (30) days prior written notice. The Charity may also cease submissions of donation pick-up requests to Resupply for acceptance of additional donations in its sole discretion at any time.
THE PLATFORM, THE PLATFORM CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR AS MAY BE OTHERWISE PROVIDED BY RESUPPLY (INCLUDING ITS LOGISTICS PROVIDERS) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” RESUPPLY AND ANY PERSON OR ENTITY ASSOCIATED WITH RESUPPLY (INCLUDING LOGISTICS PROVIDERS) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH REGARD TO THE PROPERTY DONATED TO CHARITY BY DONORS, SHIPMENTS, ITEMS IN TRANSIT AND DELIVERIES. IN ADDITION, RESUPPLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM, THE PLATFORM CONTENT, CHARITY CONTENT, THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE PLATFORM, OR THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. RESUPPLY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF LOGISTICS PROVIDERS OR DONORS TO FULFILL THEIR RESPECTIVE OBLIGATIONS. RESUPPLY CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. CHARITY AGREES THAT THE ENTIRE RISK ARISING OUT OF CHARITY’S USE OF THE PLATFORM REMAINS SOLELY WITH CHARITY. RESUPPLY DOES NOT CONTROL, MANAGE ORDIRECT ANY LOGISTICS PROVIDERS. LOGSITICS PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF RESUPPLY. RESUPPLY ALSO DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY DONOR CONTENT OR LOGISTICS PROVIDER CONTENT AVAILABLE ON OR LINKED TO BY THE PLATFORM. RESUPPLY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11. Claims and Limitations of Liability
RESUPPLY IS NOT LIABLE FOR ANY LOSS, DAMAGE, MISDELIVERY OR NON-DELIVERY CAUSED BY: (I) THE ACT, DEFAULT OR OMISSION OF LOGISTICS PROVIDERS; CHARITY OR ANY OTHER PARTY WHO CLAIMS INTEREST IN THE SHIPMENT; OR (II) THE NATURE OF THE SHIPMENT OR ANY DEFECT, INSUFFICIENT PACKING, SECURING, MARKING OR ADDRESSING THEREIN; OR (III) A VIOLATION BY THE CHARITY OF ANY PROVISION OF THIS AGREEMENT; OR (IV) FAILURE TO OBSERVE ANY OF THE RULES RELATING TO SHIPMENTS NOT ACCEPTABLE FOR TRANSPORTATION OR SHIPMENTS ACCEPTABLE ONLY UNDER CERTAIN CONDITIONS; OR (V) ACTS OF GOD, PERILS OF THE AIR, PUBLIC ENEMIES, PUBLIC AUTHORITIES, WAR, RIOTS, STRIKES, LABOR DISPUTES, SHORTAGES, WEATHER CONDITIONS OR MECHANICAL DELAY OR FAILURE OF VEHICLES OR OTHER EQUIPMENT; OR (VI) THE ACTS OR OMISSIONS OF ANY PERSON OTHER THAN EMPLOYEES OF RESUPPLY. IN ADDITION, RESUPPLY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (I) CHARITY’S USE OF OR RELIANCE ON THE PLATFORM OR CHARITY’S INABILITY TO ACCESS OR USE THE PLATFORM. ADDITIONALLY, RESUPPLY DOES NOT OWN NOR POSSESS ANY OF THE DONATIONS, AND RESUPPLY DISCLAIMS ALL LIABILITY RELATED TO THE CONTENTS OF THE DONATIONS. IN NO EVENT WILL RESUPPLY BE LIABLE, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE), TO CHARITY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH CHARITY’S USE, OR INABILITY TO USE, THE PLATFORM OR RELATED SERVICES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS, LOSS OF USE, OR LOSS OF DATA, REGARDLESSOF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF RESUPPLY, AND WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADEKNOWN TO RESUPPLY.
12. Governing Laws
All matters relating to this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
Any claim or dispute arising out of or in relation to these Term and Conditions shall be resolved exclusively in (i) the in the federal courts of the United States located in the Commonwealth of Massachusetts or the courts of the Commonwealth of Massachusetts, or (ii)the federal courts of the United States or state courts located where the Charity’s headquarters and principal place of business are located. Charity hereby consents to the personal jurisdiction of such courts. However, in lieu of litigating any such claim or dispute in the courts, Charity or Resupply may elect to resolve any such claim or dispute by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association on an individual basis and not consolidated with any other claim.
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties. Charity may not assign this Agreement without Resupply’s prior written approval. Resupply may assign this Agreement, in whole or in part, without Charity’s consent. All notices under and related to this Agreement shall be sent to the addresses set forth on the Order Form. No joint venture, partnership, employment, or agency relationship exists between Charity, Resupply, or any Logistics Providers as a result of this Agreement or use of the Platform. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. This Agreement may not be amended or modified, in whole or part, except by a writing signed both parties. In the event of a conflict between this Agreement and any Order Form, this Agreement will govern with respect to such conflict. Electronic or PDF copies of signatures shall be accepted as if they were originals, and this Agreement may be executed in counterparts.