DAFinitive Subscription and Terms of Service Agreement
The Helen Brown Group LLC (“HBG”, “DAFinitive”, “we” or “us”) has developed and maintains a database of information related to funds, including donor-advised funds, endowed funds, scholarship funds and other philanthropic vehicles (the “Database”). It also provides information about such funds, including articles, blogs and other resources that are made available through its websites (“Websites”) and its associated products and services (collectively, with the Websites, the “Services”).
Certain resources are available for free to visitors and users of such Services (“Client”, “you” or “your”), whether or not they register or purchase products or services through the Websites, subject to the terms and conditions set forth in this Subscription and Terms of Service Agreement (“Agreement”). However, many Services (including Database access) are only available to our paid subscribers (”Subscribers”), to whom different terms and conditions may apply (as noted below).
By accessing or using the Services in any way, you agree to be bound by this Agreement. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use the Services. You represent and warrant that (i) you are at least 18 years of age and have the authority to enter into this Agreement, and (ii) if you are accepting this Agreement on behalf of an entity, you have the authority to agree to all of the terms set forth herein on behalf of such entity.
The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose below, or subsequently by proper notice (“Policies”).
1. Services – General terms
1.1. HBG Materials. Our Services, Databases, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, systems, software, designs, workflows and other technologies that are provided or used by HBG in connection with the Services and any and all intellectual property rights in the foregoing (collectively, the “HBG Materials”) shall at all times remain the exclusive property of HBG or its third-party licensors. Any third-party software included in the Services is licensed subject to any additional terms included in the applicable third-party license (“Third-Party License“). HBG Materials may be governed by supplemental terms of service that are specific to the applicable product or service that you purchase from HBG (“Supplemental Terms”). In the event of any conflict between the terms of this Agreement and the Supplemental Terms, the Supplemental Terms shall control with respect to your use of such HBG Materials.
1.2 Client Data. “Client Data” shall mean any data, information or material provided or submitted in its unaltered form by Client (including, without limitation, information provided by Client’s employees, agents, representatives, customers, and users) to HBG in connection with using the Services or otherwise under this Agreement.
1.3. Grant of access and usage rights. Subject to the terms and conditions of this Agreement (including, any applicable Supplemental Terms) and of any applicable Third-Party Licenses, and provided you comply with your obligations under the foregoing agreements, we hereby grant to all users a limited, revocable, non-exclusive, non-transferable right to access and use the Services solely for your own internal, personal, and/or non-commercial purposes.
Special Rule for Subscribers: Subscribers may use the Services they purchase for legitimate business and fundraising purposes for the duration of their subscription agreement (the “Term”).
We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement or any applicable Supplemental Terms or Third-Party License, we reserve the right to revoke any rights or licenses granted in this Agreement and terminate or limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement. You are not acquiring any rights in or to the HBG Materials other than a non-exclusive right to access and use the Services solely in accordance with the terms of this Agreement.
1.4. Modification. We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
Special Rule for Subscribers: If you are a Subscriber we will not significantly decrease the features or functions of the Services available to you during the Term of your agreement without offering you the option of cancelling the Agreement and/or receiving a pro rata refund (determined in our reasonable discretion).
1.5. Removal of access. Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof for cause. “Cause” for such measures includes, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or Policies (including, without limitation, the Supplemental Terms); (2) our discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
Special Rule for Subscribers: If you are a Subscriber, we will not discontinue the Services you pay for, suspend your access to these Services, or eliminate important features or functions of these Services for Causes other than (1) and (5) without offering you the option of cancelling the Agreement and/or receiving a pro rata refund (determined in our reasonable discretion.
1.6. Accuracy. HBG will obtain information from sources it considers reliable and run reasonable control checks on the information, but will not be subject to liability for the truth or accuracy of the information conveyed, for its completeness, or for errors or mistakes made by humans or machines. HBG shall take reasonable steps to control the continuing quality of the information. Application of such quality control procedures constitutes the full extent of the efforts to be made by HBG to manage the accuracy of the information provided. You acknowledge that it may be necessary or advisable from time to time, in the ordinary course of HBG’s business, for HBG to add, delete, and substitute information it makes available to its clients including the Client. HBG expressly reserves the right to revise the information and to make changes in HBG Materials.
1.7 Availability. The Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the Internet, so the quality and availability of the Services may be affected by factors outside of our control. We do not represent, warrant, or guarantee that the Services will always be available or will be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
1.8. Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services, Database or any HBG Materials to develop a competing service or product; (4) use any device, software, or routine (including malicious code or viruses) intended to damage or otherwise interfere with the proper functioning of the Services or of the devices, servers or networks connected to the Services, or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (6) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (7) use the Services for unlawful purposes; (8) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information available on the Services, including data in the Database, for any reason; (9) access or attempt to access any other user’s account; or (10) use any HBG Materials made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party.
Special Rule for Subscribers: Subscribers may use the Database and Services for legitimate business and fundraising purposes.
We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. Notwithstanding the foregoing, if a Service expressly provides a license to use HBG Materials (including licenses to certain Subscribers) in a manner that is more permissive than or conflicts with the foregoing restrictions (e.g. by providing that HBG Materials are made available pursuant to a Creative Commons or similar license), the license provided by the applicable Service (or subscription agreement) shall govern.
1.9. Public Areas. The Services may feature various community areas and other public forums, including but not limited to blogs or member communities, discussion boards, question and answer areas and comment areas (the “Public Areas“). If you use a Public Area you are solely responsible for your own submissions, the consequences of posting your submissions, and your reliance on any information in the Public Areas or other areas of the Services. If you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. Any information you share, including without limitation any discussions with others, in any online Public Area is by design open to the public and is not private. We reserve the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas of the Service. We have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Service or any submissions by you or other users. As with any public forum on any website, the information you post may show up in third-party search engine results.
2.1 HBG Account. Access to certain Services may require you to register with us via an HBG-generated registration process and/or become a paid Subscriber.
2.2 Passwords. HBG has several tools that allow you to record and store information in your account. You are responsible for all actions on the Service by you or under your password or account and for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account. Without limiting the foregoing, it is your sole responsibility to (1) control the dissemination and use of any login code and password; (2) authorize, monitor, and control access to and use of your Service account and password; (3) promptly inform HBG of any need to deactivate a password. You grant HBG and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store, and use any information recorded and/or stored in your account in connection with the operation of the Service.
Special Rule for Subscribers: Subscribers are allowed a specified number of users, each of whom shall have their own password-protected account and is prohibited from sharing their passwords with, or allowing account use and access to, other individuals.
3.1. Ownership of HBG materials and third party content. The HBG Materials and Services are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any of the foregoing are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the HBG Materials and/or Services. HBG or its licensors exclusively own all right, title and interest in and to the Services, the HBG Materials and Feedback (as defined in Section 3.3), including but not limited to, all intellectual property, ideas, inventions, inferences, discoveries, content, source and object code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “HBG IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the HBG IP, nor shall you assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. Any unauthorized use of any HBG IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
3.2. Restrictions applicable to your content. You may not upload, post, or transmit via the Services any content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of HBG or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, HBG, or the Services; or (5) promotes or displays pornography; violence; racial intolerance or advocacy against any individual, group, or organization; profanity; hacking or cracking; illicit drugs and drug paraphernalia; sale of alcohol, tobacco, or tobacco-related products; or the sale of weapons or ammunition. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove from the Service any and all of the texts, images, articles, photographs, illustrations, audio, graphics, graphs, video clips, and other materials you upload or attempt to upload to the Service (“Your Content”), including the right to amend or delete any of Your Content that in our sole discretion violates any of the above. By providing Your Content via the Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such Your Content. You agree that we are not liable for any legal violation caused by your use or misuse of any content or other information transmitted, monitored, stored, or received while using the Services.
3.3. Feedback. If you share with us any corrections, amendments, enhancements, or additional information to improve any of the Services, or provide any comments, feedback, information, or materials regarding the Services or any of our other products or services (collectively, “Feedback”), HBG will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis and, without limiting the foregoing, you hereby grant HBG a nonexclusive, worldwide, right and license to use, copy, modify, and display Your Content contained in this Feedback on any of HBG’s sites or services, all without obligation or compensation to you.
4.2. Systems representations. You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications services, necessary for you to access and use the Services (collectively, the “Your Systems”). You further represent that in connection with Your Systems, you shall employ all physical, administrative, and technical controls, screening, security procedures, and other safeguards necessary to securely administer the distribution and use of the Services, and protect against any unauthorized access to or use of the Services.
4.3. Feedback representations. If you provide any Feedback via the Services, you hereby make the following additional representations and warranties to us: (1) you own such Feedback or otherwise have the right to grant us the licenses granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback will be true and accurate to the best of your knowledge.
5. Disclaimers of Warranty
To the maximum extent permitted by law, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Without limiting the foregoing, we make no warranty that the Services or HBG Materials will meet your requirements or expectations; that your access to or use of the foregoing will be uninterrupted, timely, secure, or error-free; that the results obtained from the use of the foregoing or any information or content found on the Services will be accurate or reliable; that defects in the operation or functionality of the Services will be corrected; or that the Services and any content or information found on the Services will be virus-free.
Any HBG Materials or other content downloaded or otherwise obtained through the use of the Services is obtained and used at your sole risk, and you will be solely responsible for any damage that results from the download of such material. Further, no advice or information obtained by you through the Services will create any warranty not expressly provided for in this Agreement. Because some jurisdictions do not allow the exclusion of certain warranties, some of the above limitations may not apply to you.
Data transmission between you, third-party systems (or other Third-Party Materials), and HBG are exclusively your responsibility. HBG is not responsible for the reliability or performance of any data network or any data integrity, communications or connection problems you experience that fall outside the HBG servers or network. HBG does not guarantee against data loss or inaccuracies of your data due to connectivity issues or failures of your equipment.
Additionally, HBG makes no representations or warranties that the Services are appropriate or available for use in all geographic locations.
6. Indemnity; Limitation of liability
6.1. Indemnity. You agree to defend, indemnify, and hold harmless HBG, our officers, members, managers, employees, and agents from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs, arising out of or connected with: (a) your use of our Services, (b) your violation of this Agreement, (c) any of Your Content that you provide through our Services, (d) your violation of any law or the rights of any third party, and (e) your negligence or misconduct.
6.2. Limitation of liability. Under no circumstances shall HBG be liable for any direct or indirect losses or damages arising out of or in connection with the use of or inability to use our Services or HBG Materials, including the Database. If you are dissatisfied with our Services, or with this Agreement, your sole and exclusive remedy is to discontinue using our Services. In any event, (1) under no circumstances shall we be liable to you for any special, incidental, or consequential loss or damage, including lost data or lost profits, irrespective of the cause, and (2) our total maximum aggregate liability to you arising from your use of any or all parts of our Services or HBG Materials, or otherwise arising under this Agreement in any manner whatsoever, shall be limited to five hundred dollars ($500.00).
6.3. For California residents. If you are a California resident or could otherwise claim the protections of California law, you further expressly waive the provisions of section 1542 of the California Civil Code, which reads as follows: “a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” You acknowledge that you have read and understand section 1542 of the California Civil Code, and you hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to your release of any claims you may have against HBG.
7. Dispute resolution and governing law, jurisdiction and costs
7.1. Governing law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the Commonwealth of Massachusetts, USA, without reference to its conflicts or choice of law principles.
7.2. Dispute resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services or HBG Materials, this Agreement, or the breach, termination, enforcement, interpretation, or validity of this Agreement (a “Dispute”) through discussions and negotiations between each other. Therefore, we agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute by such negotiation, you and HBG agree to resolve such Dispute through confidential binding arbitration as set forth below.
7.3. Binding arbitration. If you and HBG are unable to resolve a Dispute through informal negotiations, either you or HBG may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which is available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and HBG may litigate in a court of competent jurisdiction to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
7.4. Waiver of rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act of California to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT.
8.1. Term. The Term of this Agreement commences upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to the Services. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. You agree that we will not be liable to you or any third-party for any termination or suspension of your access to the Services or any part thereof.
Special Rule for Subscribers: If you are a Subscriber, the term of your subscription is as provided in the Terms of Subscription.
8.2. Independent contractors. You agree that neither of us is the agent or employee of the other party or has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
8.3International Users. The Services are controlled, operated and administered by HBG from our offices within the USA. If you access the Services from a location outside of the USA, you are responsible for compliance with all local laws. You agree that you will not use the Services in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
8.4. Equitable relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
8.5. Publicity. You agree that HBG may identify you as a client of HBG, and may display your name and logo on HBG’s website for such purposes, for so long as this Agreement is in effect or until you revoke your consent in writing, whichever is earlier.
8.6. Entire agreement. This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and HBG with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to that subject matter. We may revise and update this Agreement from time to time and will post the updated Agreement to the Website. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
Special Rule for Subscribers: We will not change the terms of this Agreement in a manner that materially reduces the value or utility of the Services or HGB Materials to a Subscriber without allowing the Subscriber to elect to cancel the Agreement.
8.7. Waiver; Severability. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
8.8. Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.8.9. Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
8.10. Contact us. If you have any questions, you may contact us via phone at 617-393-1983 or email hello@DAFinitive.com.