Last Modified: Feb 09, 2017
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Subscriber or Customer) and us (DonorCommunity). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. These terms are considered part of your agreement, and upon signing the agreement (the Invoice), these terms will be incorporated into your subscription terms and only be overridden where the Invoice conflicts (if at all). By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms and we will let you know when we do through email, phone message, or notification within your DonorCommunity portal used to access your DonorCommunity subscription.
We may have several different versions of our product offering, and there are some provisions that apply only to those offered versions. In the ‘General Terms' below, we have those that apply to any and all of our product versions, except as we explain in the ‘Product Terms'. In the ‘Product Terms' below, we have those that apply to our specific product offerings (if available), and the specific modules within those offerings. If you choose to participate in certain programs, addressed in the ‘Product Terms', this section will control if there's any conflict between the ‘General Terms' and the ‘Product Terms'.
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
"Billing Period" means the period for which you agree to prepay fees under the Invoice, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Communication Services" means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
"Confidential Information" means all information provided by you or us ("Discloser") to the other ("Receiver"), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Constituent" means a single donor, board member, volunteer, or other individual or contact (other than a User) whose Contact Information is stored by you in the Subscription Service.
"Constituent Information" means the name, email address, phone number, telephone number, and similar information submitted by constituents to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data (data provided by DonorCommunity or one of its affiliates outside of information collected by Customer through Subscription Service online or offline).
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
"DonorCommunity Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
"Invoice" means the DonorCommunity-approved form or online subscription process by which you agree to subscribe to the Subscription Service and (where it applies) purchase Consulting Services.
"Sensitive Information" means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver's license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
"Site Visit" means interaction with your website by a single visitor in a single session.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means our web-based online fundraising and marketing software, tools and platform that you have subscribed to by an Invoice or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via your DonorCommunity portal or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
"Subscription Term" means the Initial Subscription Term and all Renewal Subscription Terms.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.
"Third-Party Sites" means third-party websites linked from within the Subscription Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"You", "your" or "Customer" means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Invoice as the customer.
2. The Subscription Service
a. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and detailed in the Invoice.
b. Limits. Limits may apply to the number of Records, Users, Site Visits, Support, Training, and/or emails per month. Any limits will be specified in your Invoice and this Agreement. You will be charged fees for exceeding any limits applied here or in the Invoice.
c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
d. Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Invoice.
3. Our Responsibilities
a. Support Services. DonorCommunity offers Support services along with its Subscription Service to You at no additional charge, and/or any special upgraded support packages if purchased. Any additional purchase for Support, if applicable, will be listed in the Invoice otherwise Support is included in your Subscription Fee. Phone support for the Subscription Service is available 8AM to 5:30PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We accept support questions via email (and/or webform if available) 24 Hours per Day x 7 Days per Week at firstname.lastname@example.org. Email responses are provided during phone support hours only, or after hours at DonorCommunity's sole discretion. We attempt to respond to email support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
b. Provision of Services. We will (a) make the Subscription Service available to You pursuant to this Agreement and the applicable Invoice, (b) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our commercially reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-DonorCommunity Application or Unsanctioned DonorCommunity Service provider including Customer ISPs, or denial of service attack.
4. Consulting Services
You may purchase Consulting Services through an Invoice or Statement of Work. Consulting Services we provide will be described in a proposal sent to Customer, or designated in the Invoice (or other URL we designate). Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term' section below. Unless otherwise agreed, all Consulting Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the "Expiration Period"). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the "Delivery Period"). If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your maximum number of Records, Users, Site Visits, and/or emails per month or other applicable limits (see Section 2.b. above), (ii) change products or base packages, or (iii) subscribe to additional features or products, including additional Constituents. This only applies if your Subscription has such or any of these limits applied, which will be indicated in the Invoice. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under 'Fee Adjustments During a Billing Period'. In order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. We will monitor or audit remotely the number of Constituents in the Subscription Service and the number of emails that you send on the Subscription Service. This information is also available to you in your DonorCommunity portal inside the various reports.
b. Fee Adjustments in Next Billing Period (where applicable). If you exceed your Maximum Constituents in a Billing Period, then your Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price which corresponds with the maximum number of Constituents from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. We determine the number of Constituents in the Subscription Service and the number of emails you sent. At your request, we will provide you with the detail we used to reach our conclusion. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Constituents or emails sent.
c. Fee Adjustments During a Billing Period (where applicable). The Subscription Fee will increase during the course of a Billing Period if you exceed your Email Send Limit in a Billing Period. The Subscription Fee will be adjusted up to the tier price which corresponds with your maximum monthly email sends from the current Billing Period.
d. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
e. Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at least 30 days before the beginning of each subsequent Billing Period, and other time during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Invoice.
f. Sales Tax. All fees are inclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income.
g. Gateway/Processing Fees (General) Subscribers may select from the offered merchants, if the option of selection is given, for "Credit Card Processing" or "CCP", which requires the use of the Gateway for the collection of online fees.
h. Credit Card Processing When a Customer (or its Constituents or affiliates) uses the DonorCommunity software to collect payment, payment processing occurs through DonorCommunity. DonorCommunity (through either its own gateway or a designated agent by DonorCommunity known to subscriber at the time of agreement) will collect all monies on behalf of the Subscriber from all transactions through the DonorCommunity platform. All merchant fees not addressed here will be addressed and provided by agent merchant selected by DonorCommunity. Subscriber retains the right to receive a full detailed listing and explanation of all additional merchant fees outside of DonorCommunity's standard convenience fee (detailed in the Invoice), which occurs on top of any merchant and/or processing fees. (See designated Merchant agreement for full terms, and can be requested through your sales representative for contact information). This agreement shall be bound and supplemented by additional merchant services agreement, which will be provided to subscriber upon request, but in the case of conflicts, this Agreement will supersede conflicting terms with merchant services agreement.
6. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process ("Initial Subscription Term").
b. Renewal Subscription Term. Unless Customer provides 30 day advanced notice, this Agreement will automatically renew for an equal amount of minimum time contracted in the Invoice ("Renewal Subscription Term"). For example, a one-year agreement will renew for a year, a three-year agreement (if not notified on time) will renew to a one-year, unless notified by you with the required notice. Written notice of non-renewal must be sent no more than ninety (90) days but no less than thirty (30) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Invoice or, if not specified in the Invoice, on our standard pricing. In addition, on renewal, product usage will be limited to the maximum allowed within your Invoice, unless otherwise agreed to by you and DonorCommunity. Should you decide not to renew, you may send the notice of non-renewal by email email@example.com. Please also see Section 19 for additional information regarding failure to renew.
c. Failure of Notification or Renewal. If proper notice is not received as described in 6(b) within the designated time frame, upon expiration of services detailed in the Invoice, DonorCommunity reserves the right to revoke Customer access to your DonorCommunity portal, including access to website content, Constituent data, and general availability of your website and/or DonorCommunity portal within 48 hours of such occurrence until Renewal is paid or otherwise allowed by DonorCommunity in its sole discretion. Upon failure to receive such notice or payment within 30 days after expiration of such date, DonorCommunity retains no obligation to maintain any Customer data, website content, or other Customer proprietary information on its servers or otherwise within its control.
d. End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration.
7. DonorCommunity's Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws. The Subscription Service and Consulting Services belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Subscription Service and Consulting Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the DonorCommunity Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. DonorCommunity, OneView, the DonorCommunity logos, and other marks that we use from time to time are our trademarks. You may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
8. Customer's Proprietary Rights
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process. Any pricing that you receive will be deemed Confidential Information in regards to Customer disclosure. Disclosing this information, without prior consent of DonorCommunity, or where otherwise publicly available, shall be considered a breach of this agreement and subject to a fee equal to DonorCommunity's financial loss as a result of the breach.
10. Customer Responsibilities.
To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a Project Manager, one or more Content Creators, a Development Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that may be required include planning of marketing and fundraising programs; emails, event pages, fundraisers, other content, and other materials; acting as internal liaison between fundraising and marketing; providing top level internal goals for the use of the Subscription Service; attending regular support or, if applicable, training sessions; and supporting the integration of the Subscription Service with other fundraising and marketing systems.
Minimum Technology Requirements - While DonorCommunity devotes extensive resources to ensure the Services are available and accessible to you online we do not take responsibility, nor shall it be a material breach of this agreement, if Customer does not maintain certain minimum local resources. Specifically, a) Customer must be accessing the Service through a network connection sufficient to load DonorCommunity applications through the browser. We generally advise a minimum of 2-3/Mbit/s down connection per concurrent user, but this number may need to be adjusted to fit your organization's specific usage. Also b) Customer must maintain technical hardware sufficient to access DonorCommunity Services. This shall include, but not limited to, a computer, browser, and local network sufficiently capable of accessing DonorCommunity Services. DonorCommunity does not guarantee any level of responsiveness for Customers who fail to meet these minimum requirements.
You grant us the right to add your name and company logo to our customer list and website. As a reference account, we will ask you to participate in a press release announcing our affiliation. If you participate in a case study or press release created and released or displayed by DonorCommunity, you agree to grant us the right, in perpetuity, to display such content on the DonorCommunity website, sales collateral, or other relevant digital or physical areas used by DonorCommunity or its affiliates to drive relevant lead, marketing, and sales activity. A request may be made in writing to us as a request to remove or refrain from using such content, but DonorCommunity reserves the right to deny such request as long as the content is a) being used for the purpose stated herein, and b) it is not causing material financial, emotional, or actual harm to the Customer, its staff, or directly-affiliated parties. However, DonorCommunity agrees to use reasonable discretion in its decision as to the above respecting privacy of the Customer with regard to this type of content.
On occasion, we may also ask you to speak with an important prospect about your perspectives on working with us. While this is not required, we kindly as that if you are satisfied with our service, you agree to support our efforts in helping as much of the community as possible.
12. Customer Data
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States. You acknowledge that in all cases that DonorCommunity acts as the processor of Customer Data and you remain controller of Customer Data for applicable European Union data protection regulations.
d. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
13. Use and Limitations of Use
a. Acceptable Use. You will comply with our Acceptable Use Policy at http://www.donorcommunity.com/acceptable-use("AUP").
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You will notify us right away of any unauthorized use of your Users' identifications and passwords or your account by emailing at firstname.lastname@example.org.
14. Acceptable Use of Communications Services
15. Third-Party Sites and Products
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
17. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, DONORCOMMUNITY CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, DONORCOMMUNITY CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. DonorCommunity Limited Warranties. The Software will materially perform pursuant to the then-current Documentation. This includes any express statements of functionality, feature, or Software performance made in the then-current Documentation, or otherwise expressly stated in a written document by an officer of DonorCommunity to Customer stating as such, provided the continued delivery of such feature, functionality, or service is agreed upon by both parties in writing and is commercially reasonable for DonorCommunity to deliver such addition.
If You believe that the Software fails to perform as described in the Documentation, You must notify DonorCommunity in writing within thirty (30) days of the occurrence of the problem, and DonorCommunity will use reasonable efforts to repair the Software problem. Such failure to perform as described must be objective in nature, and DonorCommunity does not warranty any subjective satisfaction with the Software, unless expressly stated in this Agreement, the Invoice, or the Documentation.
The foregoing provides Your sole remedy for Software, Solutions, or Services that do not comply with the foregoing promises.
c. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
d. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
e. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
18. Termination, Suspension and Expiration
a. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days' notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
b. Suspension for Prohibited Acts. We may suspend any User's access to the Subscription Service for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the DonorCommunity email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
c. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service according to this section as well as section 6(b). We will not delete Customer Data (described in 6(b)) while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, however any dispute must be initially made in writing, and received within the specified time for non-renewal indicated in this agreement. Failure to timely respond to a request from DonorCommunity or its employees, agents, or affiliates, will result in suspension of the service until a resolution is reached. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
d. Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and DonorCommunity Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve all Customer Data and/or Website Content then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service. If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted athttp://www.donorcommunity.com/terms-of-service. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Contracting Entity and Applicable Law. Your physical address determines which DonorCommunity entity you are contracting with for the Subscription and Consulting Services.
You are contracting with DonorCommunity, Inc. and this Agreement is governed by the laws of the State of Florida, U.S.A. without reference to conflicts of law principles. For contracts with DonorCommunity, Inc., both parties consent to the exclusive jurisdiction and venue of courts in state or federal courts of Broward County, Florida, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
g. Severability. If any part of this Agreement or an Invoice is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To DonorCommunity, Inc.
10443 Harrier Street, Plantation, Florida, 33324 U.S.A.
To DonorCommunity, Inc.
3511 W. Commercial Blvd. Suite 404 Fort Lauderdale, Florida 33309 U.S.A.
To you: your address as provided in our DonorCommunity Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
j. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
m. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
n. Survival. The following sections in the ‘General Terms' shall survive the expiration or termination of this Agreement: 'Definitions', ‘Fees and Payments', ‘DonorCommunity's Proprietary Rights', ‘Customer's Proprietary Rights', 'Confidentiality', ‘Publicity', ‘Indemnification', ‘Disclaimers; Limitations of Liability', ‘Termination, Suspension and Expiration', and ‘General'.
o. Precedence. In the event of a conflict between the terms of this Agreement and an Invoice or Statement of Work, the terms of the Invoice or Statement of Work shall control, but only as to that Invoice or Statement of Work.
1. Alpha/Beta Services
a. Applicability. If you are given alpha or beta access to any features of the Subscription Service, the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms' and the terms set forth in this ‘Alpha/Beta Services' section, the terms in this ‘Alpha/Beta Services' section will control with respect to your use of Alpha/Beta Services.
b. Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Service (the "Alpha/Beta Services") available to you (i) the Alpha/Beta Services are provided "as is" and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
c. Survival. The following sections in this ‘Alpha/Beta Services' section shall survive the expiration or termination of this Agreement: ‘Alpha/Beta Services' and ‘Survival'.