These Participation Terms and Conditions are incorporated by reference into the Participation Agreement executed between Launch AI, LLC (“Launch AI”) and the charitable organization named therein (“Charity”). All capitalized but undefined terms herein are defined in accordance with the Participation Agreement. In the event of a conflict between the Participation Agreement and these Participation Terms and Conditions, the Participation Agreement will control.
- OBLIGATIONS OF THE PARTIES
1.1 Performance of Services. Launch AI will perform the Services in accordance with the terms and conditions of the MSA and the relevant SOW.
1.2 Charity Responsibilities. In connection with the Services, Charity will: (i) provide qualified personnel who are capable of supporting the Services; (ii) provide Launch AI with access to necessary systems and resources as otherwise reasonably required by Launch AI to perform the Services; (iii) perform such other duties and tasks as may be reasonably required to permit Launch AI to perform the Services. Charity will also make available to Launch AI any data, information and other materials required or requested by Launch AI to perform the Services (collectively, “Charity Materials”). Charity will be responsible for ensuring that all such Charity Materials are accurate and complete. Charity authorizes and directs Launch AI to disclose to Customer Charity Materials as well as reports, data, and other materials developed as part of the Services as reasonably necessary for provision of the Services or as reasonably necessary to respond to a request from Customer.
1.3 Designated Contact. Charity will designate one or more individuals by written notice to Launch AI who will serve as the point(s) of contact between the parties for all matters relating to the Services. Charity may designate new contacts by written notice to the other party.
1.4 Relationship of the Parties. Launch AI is performing the Services as an independent contractor and nothing in the Participation Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Charity and Launch AI or any Launch AI personnel. Launch AI has no authority to bind Charity by contract or otherwise. Launch AI acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Charity makes available to its employees. Launch AI is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Launch AI and its personnel and the performance of the Services by such personnel.
1.5 Compliance with Laws. Charity agrees to use the Services in accordance with all applicable federal, state, and local laws and regulations, industry standards including, without limitation, the CTIA Messaging Principles and Best Practices, and policies of telecommunications service providers providing communications resources to Launch AI. Without limiting the generality of the foregoing, Charity will use the Services in compliance with the Telephone Consumer Protection Act of 1991 (“TCPA”) and all regulations implementing the TCPA, other teleservices laws and regulations, charitable solicitation laws, and privacy and data security laws and regulations. Charity represents and warrants that it has all necessary rights under law to provide the Charity Materials to Launch AI, and for Launch AI to utilize such Charity Materials, to provide the Services and for such other purposes as contemplated by the Participation Agreement, the MSA, and the relevant SOW. Launch AI reserves the right, but not the obligation, to monitor and audit Charity’s use of the Services and the Charity Materials for compliance with applicable laws, regulations, and industry standards and these Participation Terms and Conditions, and Charity will reasonably and timely cooperate with any such monitoring and auditing.
1.6 Restriction on Use. Charity may not use the Services to communicate with individuals for the purpose of, or as part of a plan or program of, (i) encouraging the purchase or rental of, or investment in, property, goods, or services; and/or (ii) communicating the commercial availability or quality of any property, goods, or services.
1.7 Access and Security. The Services may be accessed by Charity through its employees, agents, or representatives that are authorized by Charity. Charity shall ensure that only authorized individuals will have access to the Services. Charity shall promptly inform Launch AI of any unauthorized access to the Services or the loss or theft of its access credentials. Charity is responsible for all access and use of the Services using Charity’s access credentials regardless of whether such access and use was authorized by Charity. Charity shall be responsible, and liable to Launch AI, for any security breaches by Charity, its employees, agents, representatives, or any person using Charity’s access credentials.
- INTELLECTUAL PROPERTY
2.1 Launch AI Use of Charity IP. All right, title, and interest in and to all Charity products, services and intellectual property rights therein, and any enhancements, derivative works or improvements thereto are and shall remain exclusively with Charity, its licensors, and their respective successors and assigns. Launch AI is not granted any ownership right, title or interest whatsoever in any Charity products, services, other Confidential Information (as defined below) of Charity, or any intellectual property rights associated with any of the foregoing. Launch AI shall not use the copyrights, domain names, trademarks, trade names, service marks, logos, or other proprietary intellectual property associated with the Charity or any Charity product or service without the express written consent of the Charity. Launch AI shall not register, attempt to register, or assist anyone else in registering any copyright, domain name, trademark, trade name, service mark, logo, or other proprietary rights associated with the Charity or any Charity product or service. Notwithstanding the foregoing, Charity grants to Launch AI a limited, irrevocable, royalty free, worldwide, non-exclusive, transferable, assignable, and sublicensable license to access, use, copy, perform, reproduce, display, and distribute, including to create derivative works or incorporate into other works, the Charity Materials as reasonably necessary for the provision and improvement of the Services, including without limitation for conducting research, development, monitoring, and other day-to-day business activities. Further, Charity authorizes Launch AI to use the Charity’s name, logos and trademarks in Launch AI’s promotional materials, website, and for publicity purposes until such right is revoked. The Charity can revoke this limited right to use in the foregoing sentence at any time upon written notice and Launch AI will implement such revocation within thirty (30) days after receipt.
2.2 Charity use of Launch AI IP. The Charity shall not use the copyrights, domain names, trademarks, trade names, service marks, logos, or other proprietary intellectual property associated with Launch AI, any Services, or any other Launch AI product or service without the express written consent of Launch AI. The Charity shall not register, attempt to register, or assist anyone else in registering any copyright, domain name, trademark, trade name, service mark, logo, or other proprietary intellectual property associated with Launch AI or its Services. Subject to the terms and conditions of the Participation Agreement and these Participation Terms and Conditions, Launch AI grants Charity a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use the Services during the term of the relevant SOW, or the Participation Agreement, whichever is shorter. Charity’s license and use of the Services is permitted solely for the purpose of identifying and communicating with individuals or businesses regarding the mission of Charity’s organization.
2.3 Freedom of Action. Nothing in these Participation Terms and Conditions will be deemed to restrict or limit Launch AI’s right to perform similar services for any other person or to assign any employees or subcontractors to perform similar services for any other person provided that the parties comply with their obligations under Section 3 with respect to Confidential Information.
2.4 Reservation of Rights. Launch AI reserves all rights not expressly granted to Charity in these Participation Terms and Conditions. Except as expressly stated, nothing herein shall be construed to directly or indirectly grant to a receiving party any title to or ownership of a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder.
2.5 Restrictions on Use of Services. Charity shall not, and shall not permit any person to: (i) modify or create any derivative works of the Services; (ii) modify the Services or reverse assemble, disassemble, decompile, engineer, or otherwise attempt to derive source code from the Services; (iii) access or use the Services for any unlawful or illegal purpose; (iv) inject or contaminate the Services with malware, viruses, trojan horses, or other malicious code; or (v) provide access to or use of the Services on any computer network or allow concurrent use thereof by more than one individual per access credential without the prior written consent of Launch AI.
2.6 Usage Data. Charity acknowledges that Launch AI may obtain certain usage, technical, and statistical data regarding Charity’s use of the Services and that such usage, technical, and statistical data is the sole property of Launch AI and is not Charity Materials or Charity’s Confidential Information. Launch AI may use and disclose such usage, technical, and statistical data without restriction.
2.7 Feedback. If Charity provides any ideas, suggestions, or recommendations regarding the Services (“Feedback”), Launch AI will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind and without compensation or notice to Charity. By providing Feedback, Charity grants Launch AI a worldwide, perpetual, irrevocable, transferable, assignable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.
- CONFIDENTIAL INFORMATION
3.1 Confidential Information. “Confidential Information” means: (i) Charity Materials; (ii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or under the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
3.2 Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of these Participation Terms and Conditions by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure.
3.3 Use and Disclosure Restrictions. Except as otherwise permitted by these Participation Terms and Conditions, each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of these Participation Terms and Conditions and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of these Participation Terms and Conditions. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice (to the extent permitted by law) to the other party to contest such order or requirement and provides, at the disclosing party’s cost, as reasonable assistance requested by the disclosing party to context such order or requirement; (ii) to its legal or financial advisors who are subject to an obligation of confidentiality; (iii) as required under applicable securities regulations; (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party; and, (v) when Launch AI is the receiving party, as reasonably necessary to fulfill requests from telecommunications service providers or governmental or self-regulatory bodies regulating the telecommunications industry or the conduct of communications with consumers. Notwithstanding any provision to the contrary, Launch AI is not required to provide notice of requests fulfilled under clause 3.3(v).
3.4 Disclosures to Third-Party Partners. Charity agrees that if Charity or its representatives direct or instruct Launch AI to disclose or transmit data or information to/from a third-party entity, including email service providers, data sources, or other Charity contractors (such entities “Third-Party Partners”), that Launch AI is not responsible for the privacy, security, or integrity of such data or information, and the treatment of such data or information shall be governed by Charity’s relationship or agreement with such Third-Party Partner. If access credentials are required to facilitate data transfers to/from a Third-Party Partner, Charity will obtain and provide to Launch AI such necessary access credentials. Charity acknowledges and agrees that Third-Party Partners are not sub-processors or sub-contractors of Launch AI, and Launch AI assumes no responsibility or liability for the acts or omissions of Third-Party Partners.
3.5 Remedies. The receiving party acknowledges that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the receiving party agrees that the disclosing party will have the right to obtain an immediate injunction enjoining any breach of the receiving party’s confidentiality obligations, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
- WARRANTY
4.1 Services Warranty. Launch AI warrants that the Services will substantially conform with the relevant SOW and will be free of material defects. Launch AI does not make any representations or warranties that the functions performed by the Services will meet Charity’s requirements, that the operation of the Services will be uninterrupted or error free, or that all defects in the Services will be corrected.
4.2 Warranty Disclaimers. THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF, AND Launch AI DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. NO INFORMATION OR ADVICE OBTAINED BY CHARITY FROM Launch AI SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE PARTICIPATION TERMS AND CONDITIONS.
4.3 Mutual Representations and Warranties. Each party represents and warrants to the other party that such party has the legal power to enter into the Participation Agreement including these Participation Terms and Conditions, that the signatory hereto has the authority to bind the applicable party, and the Participation Agreement including these Participation Terms and Conditions will constitute a legal, valid, and binding obligation of each party in accordance with its terms.
- INDEMNIFICATION.
5.1 Launch AI Indemnification. Launch AI will defend, indemnify, and hold Charity and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, representatives, and agents harmless from and against any and all claims, governmental investigations, demands, actions, and proceedings, real or threatened, and all losses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising out of or related to an allegation that the Services as licensed hereunder infringe a third-party’s intellectual property rights (an “IP Claim”). In the event of an IP Claim, Launch AI may, in Launch AI’s sole discretion and at no cost to Charity: (i) modify the Services so that they are no longer infringing; (ii) obtain a license for Charity’s continued use of the Services in accordance with these Participation Terms and Conditions; or (iii) if neither of the foregoing is commercially practicable despite Launch AI using all commercially reasonable efforts and if Charity is not permitted to continue using the Services, then the Participation Agreement will terminate with respect to such infringing Service. Launch AI will have no liability or responsibility to indemnify Charity with respect to any IP Claim based upon: (a) any service, information, component, or application provided or made available by Charity or any other person; (b) any modification of the Service by Charity, or any other person other than Launch AI or its authorized agents; or (c) Charity’s continuance of allegedly infringing activity after being notified thereof, or after being notified of modifications that would have avoided the alleged infringement.
5.2 Charity Indemnification. Charity will defend, indemnify, and hold Launch AI and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, representatives, and agents harmless from and against any and all Losses arising out of or related to (i) any breach or alleged breach of the Participation Agreement or these Participation Terms and Conditions, including the Statements of Work, by Charity; (ii) Charity’s use of the Services or information obtained therefrom (including without limitation Charity’s transmission or receipt of communications via the Services); (iii) actions taken by Charity or third parties utilizing Charity’s access credentials for the Services; or (iv) Charity’s gross negligence or willful misconduct.
5.3 Indemnification Procedure. The party seeking indemnification (the “Indemnified Party”) will give prompt written notice to the party from whom indemnification is sought (the “Indemnifying Party”) of any claim for which indemnification is sought under these Participation Terms and Conditions. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except to the extent that such failure materially adversely affects the ability of the Indemnifying Party to defend the applicable claim. The Indemnifying Party may elect to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. The Indemnifying Party will use counsel reasonably acceptable to the Indemnified Party. Neither the Indemnifying Party, nor the Indemnified Party, will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party, including the payment of money, without the prior written consent of the other party, which will not be unreasonably withheld, conditioned, or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of defense of any claim.
- LIMITATION OF LIABILITY.
6.1 Exceptions. Launch AI will have no liability to Charity (or any other person) to the extent that such liability arises from or relates to: (i) Charity’s non-compliance with the Participation Agreement, these Participation Terms and Conditions, the relevant SOW, the relevant Services documentation, or Launch AI’s instructions, procedures, or other specifications; (ii) Charity’s use of software or equipment that is incompatible with the Services; (iii) any corruption of, damage to, or loss of software or data if the same could have been avoided by Charity’s implementation of a regular backup system; (iv) a computer virus, worm, trojan, or other malicious code, not introduced by Launch AI, affecting the operation of the Services; (v) intrusion of a third party into Launch AI’s or Charity’s computer system affecting the operation of the Services; (vi) a network failure rendering the Services inaccessible; (vii) an incident concerning Charity’s technical infrastructure; or (viii) data received by Launch AI from third parties.
6.2 LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR THE LIKE) ARISING FROM OR RELATING TO THE PARTICIPATION AGREEMENT, THESE PARTICIPATION TERMS AND CONDITIONS, ANY RELEVANT SOW, OR ANY DOCUMENTATION, OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Launch AI’S TOTAL LIABILITY ARISING FROM OR RELATING TO THE PARTICIPATION AGREEMENT, THESE PARTICIPATION TERMS AND CONDITIONS, ANY RELEVANT SOW, AND/OR THE SERVICES WILL NOT EXCEED THE FEES PAID TO Launch AI BY CUSTOMER UNDER THE RELEVANT SOW IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM(S) GIVING RISE TO SUCH LIABILITY, IT BEING SPECIFIED THAT IF ONE OR MORE CLAIMS GENERATE THE SAME DAMAGE OR LOSS, ALL SUCH CLAIMS ARE DEEMED A SINGLE CLAIM.
- NON-SOLICITATION.
During the term of the Participation Agreement and for a period of twelve (12) months thereafter, Charity will not recruit or otherwise solicit for employment or engagement as a contractor any Launch AI employees or subcontractors without Launch AI’s express prior written approval. A general public advertisement of employment opportunities will not be considered to violate this Section so long as Charity terminates recruitment or solicitation activities upon having actual or constructive knowledge of such person’s employment or contractor relationship with Launch AI.
- TERMINATION
8.1 Effect of Termination. Upon the termination of the Participation Agreement: (i) Launch AI will promptly return to Charity all Charity Materials or destroy such Charity Materials if return is impractical; and (ii) each party will promptly return to the other party or destroy with certification all Confidential Information of the other party in its possession or control. Notwithstanding the foregoing, Launch AI may retain Charity Materials or Charity’s Confidential Information that (i) Launch AI determines it is advisable to retain to comply or prove compliance with laws and regulations applicable to it, (ii) is stored in an automatic archive or backup system which will be automatically deleted in the ordinary course of Launch AI’s business, or (iii) Launch AI determines is reasonably necessary to prosecute or defend legal claims. Any Charity Materials or Charity Confidential Information retained by Launch AI in accordance with the foregoing sentence will remain subject to the terms of these Participation Terms and Conditions related to the security thereof.
8.2 Survival. The rights and obligations of the parties contained in Sections 2-9 will survive the expiration or termination of the Participation Agreement.
- GENERAL
9.1 Assignment. Charity may not assign the Participation Agreement without Launch AI’s prior written consent which will not be unreasonably withheld, except that Charity may assign the Participation Agreement, with prompt written notice but without Launch AI’s consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger or acquisition or the sale of all or substantially all of Charity’s assets. Launch AI may assign the Participation Agreement at any time and will provide written notice to Charity promptly following such assignment. No provision of the Participation Agreement or these Participation Terms and Conditions shall restrict Launch AI’s ability to use subcontractors in the performance of its obligations hereunder or the Services. Subject to the foregoing, the Participation Agreement will bind and benefit the parties and their respective successors and assigns.
9.2 No Election of Remedies. Except as expressly set forth in the Participation Agreement or these Participation Terms and Conditions, the exercise by either party of any of its remedies under the Participation Agreement or these Participation Terms and Conditions will not be deemed an election of remedies and will be without prejudice to its other remedies under these Participation Terms and Conditions or available at law or in equity or otherwise.
9.3 Governing Law. The Participation Agreement including these Participation Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under the Participation Agreement including these Participation Terms and Conditions will be brought exclusively in the federal or state courts located in Hillsborough County, Florida and the parties irrevocably consent to the personal jurisdiction thereof and venue therein.
9.4 Severability. If any provision of the Participation Agreement or these Participation Terms and Conditions is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.5 Notices. Any written notice to be provided in accordance with the Participation Agreement or these Participation Terms and Conditions must be provided by personal delivery, nationally recognized overnight courier (e.g., Federal Express, United Parcel Service, DHL), or United States certified/registered mail, postage prepaid, to the address identified for the applicable party identified on the Participation Agreement (“Notice Address”). Further, Launch AI may provide written notices to Charity at the email address(es) for Charity in Launch AI’s records. Notices by personal delivery, courier, or mail will be deemed effective upon delivery or refused delivery. Notices by email will be deemed effective upon receipt by the recipient. A party may update its Notice Address by providing written notice to the other party at least seven (7) days prior to the new Notice Address becoming effective.
9.6 Waiver. The failure by either party to enforce any provision of the Participation Agreement or these Participation Terms and Conditions will not constitute a waiver of future enforcement of that or any other provision. A waiver is only effective if in writing and executed by the party against whom the waiver is asserted.
9.7 Entire Agreement. The Participation Agreement including these Participation Terms and Conditions set(s) forth the entire understanding between the parties with respect to the subject matter hereof. The Participation Agreement including these Participation Terms and Conditions supersedes all prior or contemporaneous representations, discussion, negotiations, letters, proposals, agreements, and understandings between the parties with respect to the subject matter hereof, whether written or oral. The Participation Agreement including these Participation Terms may be amended, modified, or supplemented only in a writing duly executed by an authorized representative of all parties. Notwithstanding the foregoing, Launch AI may modify these Participation Terms and Conditions at any time and such modifications will be effective immediately upon posting to [URL]. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher, or other similar document issued by either party, such document will be for the issuing party’s internal purposes only and the Participation Agreement including these Participation Terms and Conditions will prevail. Therefore, even if such document is acknowledged or accepted by the receiving party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document will have no force or effect on the Participation Agreement including these Participation Terms and Conditions
9.8 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Participation Agreement or these Participation Terms and Conditions (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, epidemic/pandemic, utility outages, acts of God or governmental action.
9.9 Export Laws and International Privacy. Charity agrees to fully comply with all United States and other applicable export laws and regulations. Charity is not permitted to use the Services in connection with the processing of personal data of an EU, EEA, UK, or Swiss data subject or of any person located outside the United States of America.
9.10 Interpretation. The Participation Agreement including these Participation Terms and Conditions is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of law that provides that an agreement will be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement will not apply thereto.
9.11 Counterparts. The Participation Agreement may be executed in counterparts, including via facsimile or electronic signature, and each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Last revised: February 6, 2024
