IMPORTANT: READ THE ENTIRE TERMS OF SERVICE CAREFULLY BEFORE ACCEPTING THE TERMS. WE ADVISE USER TO PRINT AND KEEP A COPY OF THESE TERMS OF SERVICE FOR USER’S RECORDS.
These TERMS OF SERVICE (the “TOS”) are entered into by and between DonorPath, Inc. (“DonorPath”) and you (“User”), and by using DonorPath’s Service, User is agreeing to these terms. The “Service” consists of DonorPath’s software as a service platform and such other services as agreed upon by DonorPath and User pursuant to the Master Subscription Agreement (the “MSA”) in the case of subscribing nonprofit organizations, or the Independent Contractor Services Agreement (the “ICSA”) in the case of fundraising experts (the TOS, the MSA, and the ICSA are collectively referred to herein after as the “Agreements”). DonorPath and User are each sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
1. OWNERSHIP OF THE SERVICE. Without limiting the other terms of the Agreements, User acknowledges and agrees that the Service, and all rights, title, and interest therein and thereto, including, without limitation, any and all patents, trademarks, service marks, copyrights, trade secrets, mask works, moral rights, all other intellectual property rights, and reports (the “Associated Rights”), are owned exclusively by DonorPath. Other than the limited license granted to User under the terms of the Agreements, User is not granted or assigned any rights or ownership in the Service or the Associated Rights, express or implied, and DonorPath reserves any rights not expressly granted under the terms of the Agreements. In addition, User grants to DonorPath a royalty-free, worldwide, transferable, irrevocable, and perpetual license (with the right to sublicense) to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by User to DonorPath relating to the operation of the Service. DonorPath’s trademarks, service marks, logos, and product and service names are owned by DonorPath , and User agrees not to display or use the foregoing in any manner without obtaining DonorPath’s express prior written permission.
2. REGISTERING FOR THE SERVICE. In addition to accepting the terms of the Agreements, User must, before accessing and using the Service, register for the Service by creating a user account (a “User Account”). When creating a User Account, User will be required to provide certain personal information, which may include, without limitation, User’s name, organization name and title within organization, address, phone number, email address, and a username and password (collectively, “Personal Information”). Such Personal Information shall be accurate, current, complete, and not misleading, and User shall maintain and promptly update any Personal Information in User’s User Account should it become inaccurate, not current, incomplete, or misleading in any way.
3. USERNAME AND PASSWORD. User’s User Account and username and password are for User only, and shall not be shared with or used by any third party. User shall be solely responsible for: (i) safeguarding and maintaining the confidentiality of User’s username and password, (ii) preventing the unauthorized access to or use of the Service through User’s User
Account or username and password, and (iii) any access to or use of the Service through User’s User Account or username and password, whether by User or otherwise. User shall promptly notify DonorPath of any unauthorized access to or use of the Service, any loss, theft, or unauthorized use of User’s username and password, and any unauthorized access to User’s User Account.
OWNERSHIP OF USER CONTENT. Along with Personal Information, User may provide certain other information and data, including, without limitation, fundraising information, when registering for, accessing, or using the Service (together with Personal Information, “User Content”). As between DonorPath and User, all rights, title, and interest in and to the User Content are owned exclusively by User; User hereby represents and warrants that all User Content, and the provision or use thereof, does not and will not violate any law or regulation or any right of any third party. DonorPath’s collection, use, and disclosure of User Content are governed by its Privacy Notice available at https://app.donorpath.org/Files/DonorPath_Privacy_Notice_11.6.13.pdf
USER CONDUCT. User will be granted, during the Term (as defined in the MSA and ICSA), a limited, non-exclusive, and non-transferable license (without the right to sublicense) to access and use the Service solely in connection with User’s own internal business operations, and otherwise in accordance with the terms of the Agreements. Without limiting the foregoing, User shall use the Service under commercially reasonable operating conditions, and, when accessing or using the Service, User shall comply with all applicable local, state, federal, and international codes, laws, ordinances, rules, and regulations, including, without limitation, those related to privacy, electronic communications, and anti-spam legislation. User shall also comply with the export laws and regulations of the United States and other applicable jurisdictions when accessing and using the Service and obtain any permits, licenses, and authorizations required for such compliance. Without limiting any other term of the Agreements, (i) User represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) User shall not permit any third party to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction, and (iii) User shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which User is located.
4. PROHIBITED CONDUCT. User shall not undertake, or attempt to undertake, any of the following prohibited conduct when registering for, accessing, or using the Service:
5. USER MUST HAVE INTERNET ACCESS. DSL, cable, or another high speed Internet connection is required for proper transmission of the Service. User is responsible for procuring and maintaining the network connections that connect the User network to the Service, including, without limitation, “browser” software that supports protocol used by DonorPath, including Secure Socket Layer (SSL) protocol or other protocols accepted by DonorPath, and to follow logon procedures for services that support such protocols. DonorPath is not responsible for notifying User of any upgrades, fixes, or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by DonorPath. DonorPath assumes no responsibility for the reliability or performance of any connections as described in this Section.
6. CONFIDENTIAL INFORMATION. The Parties acknowledge and agree that as a consequence of entering into and executing the Agreement sand performing their respective obligations under the terms of the Agreements, each Party (the “Disclosing Party”) may share certain non-public, confidential, and proprietary information (the “Confidential Information”) with the other party (the “Receiving Party”). Accordingly, the Receiving Party shall:
Notwithstanding the foregoing, any non-personally identifiable information provided by User shall not be considered Confidential Information, and DonorPath shall have the right to aggregate and use such non-personally identifiable information without restriction. Moreover, DonorPath may grant others a license to access and use the Service, including any upgrades or modifications thereto, without violating the terms of the Agreements.
7. UPGRADES; MODIFICATIONS; IMPROVEMENTS. DonorPath may make upgrades, modifications, and improvements to the Service at any time without prior notice to User. The Agreements entitle User to any such upgrade, modification, or improvement to the Service, during the Term ; however, DonorPath may require User to pay additional fees for access to or use of certain of such upgrades, modifications, and improvements to the Service. User agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by User will be subject to the Agreements.
8. MONITORING. DonorPath may, for purposes of determining compliance with the terms of the Agreements, at its sole discretion, monitor and review User’s access to and use of the Service as well as User Content, but is under no obligation to do so.
9. SECURITY POLICY. DonorPath will take normal and reasonable steps, in accordance with industry standards, to maintain the security of the User Content, including, without limitation, mandating users be pre-authorized by DonorPath before creating a User Account and username and password, providing restrictions against the unauthorized access to and use of User Accounts, providing firewalls to prevent unauthorized access to User Accounts and User Content, making backup copies of User Content, providing backup servers, restricting access to the DonorPath server area, along with other reasonable and normal steps. User acknowledges and agrees that the above-mentioned security measures are in place to protect the loss, misuse, and alteration of User Content, and that these security measures are both reasonable and in accordance with industry standards.
10. DISCLAIMER OF WARRANTIES.
10.1. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENTS, DONORPATH DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW.
10.2. DONORPATH MAKES NO REPRESENTATION OR WARRANTY THAT: (i) THE SERVICE WILL MEET USER’S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE INFORMATION OR DATA THAT MAY BE OBTAINED FROM USER’S ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv)THE SERVICE OR THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY USER THROUGH THE SERVICE WILL MEET USER’S EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
10.3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM DONORPATH OR THROUGH OR FROM USER’S ACCESS TO OR USE OF THE SERVICE SHALL CREATE ANY WARRA NTY NOT EXPRESSLY STATED IN THE AGREEMENTS, AND USER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURA TE OR SUFFICIENT FOR USER’S PURPOSES.
10.4. WHILE DONORPATH WILL USE ITS REASONABLE EFFORTS TO RETURN USER CONTENT PRIOR TO THE TERMINATION OF THE AGREEMENTS, OR WITHIN A REASONABLE TIME THEREAFTER, USER UNDERSTANDS THAT USER CONTENT MAY BE PERMANENTLY LOST UNLESS IT IS EXPORTED BEFORE THE TERMINATION OF THE AGREEMENTS.
11. LIMITATION OF LIABILITY.
11.1. USER AGREES THAT THE CONSIDERATION WHICH DONORPATH CHARGES UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR ASSUM PTION BY DONORPATH OF THE RISK OF USER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE, OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM, RELATED TO, OR CONNECTED WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 11.2 BELOW; AND
11.2. EXCEPT WITH REGARD TO AMOUNTS DUE UNDER THE AGREEMENT, LIABILITY RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CLAIMS SUBJECT TO INDEMNIFICATION IN SECTION13 BELOW, THE MAXIMUM LIABILITY DONORPATH MAY HAVE TO USER WHATSOEVER ARISING FROM, RELATED TO, OR CONNECTED WITH ANY LICENSE, ACCESS TO, OR USE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY USER DURING THE TERM. IN NO EVENT SHALL THE AGREEMENTS LIMIT A PARTY’S RIGHT TO SEEK MONETARY DAMAGES AND/OR INJUN CTIVE RELIEF FOR MISAPPROPRIATION, THEFT, CONVERSION, OR INFRINGEMENT BY ONE PARTY, DIRECTLY OR INDIRE CTLY, OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION
11.2 ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MA KING THE SERVICE AVAILABLE TO USER AND THAT, WERE DONORPATH TO AS SUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
12. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATION S OF SECTIONS 10 AND 11 MAY NOT APPLY TO USER.
13.1. DONORPATH’S INDEMNITY.
13.2. USER’S INDEMNITY. Without limiting the other terms of the Agreements,User shall, at its own expense, indemnify, defend, and hold DonorPath and its affiliates, officers, directors and employees (“DonorPath’s Affiliates”) harmless from and against any and all Claims which arise from, relate to, or are connected with: (i) User’s breach or violation of any term of the Agreements; (ii) User’s access to and use of the Service in violation of the Agreements; (iii) access to or use of the Service through User’s User Account or username and password by a third party other than User; and (iv) the provision of User Content . User shall also indemnify, defend, and hold DonorPath and DonorPath’s Affiliates harmless from and against any and all Losses to the extent based upon such a Claim.
13.3. INDEMNIFICATION PROCEDURES. In the event of a potential indemnity obligation under the Agreements, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such claim; (ii) allow the indemnifying party to have sole control of its defense and settlement (provided that the indemnifying party shall make no admission of fault or wrongdoing or other statement reflecting negatively on the indemnified party without the indemnified party’s prior express written consent); and (iii) upon the reasonable request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such claim and any appeal arising therefrom. The indemnification obligations contained under the terms of the Agreements shall survive the expiration or termination of the Agreements.
14. REMEDIES. The Parties acknowledge and agree that a breach of the Agreements may result in immediate and irreparable injury to the non-breaching party in an amount that is difficult to ascertain; therefore, the non-breaching party shall be entitled, at its sole discretion, to obtain equitable remedies, including, without limitation, specific performance and injunctive relief, without the necessity of posting a bond or other undertakings therewith. The right to seek equitable relief is in addition to all other rights and remedies otherwise available, including, without limitation, recovery for damages. All of the remedies for any breach of the Agreement shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedies.
15. SURVIVAL. The ownership, confidentiality, non-disclosure, and indemnification provisions of the TOS shall survive the termination of the Agreements.
USER ACKNOWLEDGES THAT USER HAS READ, AGREES TO, AND ACCEPTS THESE TERMS OF SERVICE. IF USER DOES NOT AGREE WITH AND ACCEPT THE TERMS OF THIS AGREEMENT, THEN USER MAY NOT ACCESS OR USE THE SERVICE.