Effective Date: October 4, 2022
This Terms of Use (“TOU”) is a binding contract between you, an individual user (“you” or “your”) and DonorSpring LLC (“DonorSpring,” “we,” “us” or “our”), governing your use of the website located at donorspring.com and any related subdomains (“Site”). This agreement includes an Order Form or other ordering document or web form referencing this TOU. BY ACCESSING OR USING THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TOU. IF YOU DO NOT AGREE TO THIS TOU, THEN YOU MUST NOT ACCESS OR USE THE SITE.
1. General Terms and Conditions.
a. Description. The Site provides you with information about our products and services. If you have an Account (defined below), then you may gain access to a portion of the Site that will allow you to send text or electronic mail messages that may include marketing promotions, surveys, conversations, and other materials (collectively, “Messages”) to Subscribers (defined below). If you have an Account, you also may gain access to certain tools to collect the phone number, email address or other contact information of Subscribers.
b. Changes to this TOU. You understand and agree that DonorSpring may change this TOU at any time without prior notice. DonorSpring will endeavor to provide you with prior notice of any material changes. The current, effective copy of this TOU will be posted at https://www.donorspring.com/terms. The revised TOU will become effective at the time of posting on the Site, and your use of the Site after such time will constitute your acceptance of the revised TOU. If any change to this TOU is not acceptable to you, then your sole remedy is to stop using the Site. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this TOU will apply to any dispute between you and DonorSpring that arose prior to the effective date of those revisions.
c. Consideration. DonorSpring provides you with access to the public-facing portions of the Site for free. In return for enjoying this free access, you acknowledge and agree that DonorSpring may generate revenues, increase goodwill or otherwise increase the value of DonorSpring from your use of the public-facing portions of the Site, and you will have no right to share in any such revenues, goodwill or value whatsoever.
d. Privacy Policy. Your use of the Site is also subject to DonorSpring’s Privacy Policy, which is incorporated into this TOU by reference.
e. Jurisdictional Issues. The Site is controlled and operated by DonorSpring from its offices in the State of South Carolina. DonorSpring makes no representation that materials on the Site are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Site from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
f. Eligibility. THE SITE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE BY DONORSPRING. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Site, you affirm that either you are at least 18 years of age or have been authorized to use the Site by your parent or legal guardian who is at least 18 years of age.
2. Accounts and Messaging
a. Log-In Credentials. While you may always browse the public-facing portions of the Site without registering with us, in order to enjoy the full benefits of the Site you must register an account with us (“Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your log-in credentials. You agree to notify DonorSpring immediately at help@donorspring.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. DonorSpring will not be liable for any loss or damage arising from unauthorized use of your log-in credentials prior to you notifying DonorSpring of such unauthorized use or loss of your log-in credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as DonorSpring requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this TOU, cause damage to or impair the Site, infringe or violate any third party rights, damage or bring into disrepute the reputation of DonorSpring, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then DonorSpring may terminate your Account immediately without notice to you and without any liability to you or any third party.
d. Sending Messages. You represent, warrant, and covenant that when using the Site to send Messages, you will (i) comply with all applicable laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so (“Subscribers”); and (iv) promptly notify DonorSpring of all requests made by Subscribers to stop receiving Messages from DonorSpring or your Organization. As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Site to send Messages to Subscribers.
3. Intellectual Property Rights.
a. License. Subject to your complete and ongoing compliance with this TOU, DonorSpring hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Site in strict compliance with the provisions of this TOU.
b. Content. Except for User Content (defined in Section 4.a below), the content that DonorSpring provides to you on the Site, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by DonorSpring or its licensors (collectively, the “DonorSpring Content”). Moreover, DonorSpring or its licensors own all design rights, database and compilation rights and other intellectual property rights in and to the Site, in each case whether registered or unregistered, and any related goodwill.
c. Marks. The DonorSpring trademarks, service marks, and logos (collectively, the “DonorSpring Trademarks”) used and displayed on the Site are DonorSpring’s registered and/or unregistered trademarks or service marks. Any other product and service names located on the Site may be trademarks or service marks owned by third parties (collectively with the DonorSpring Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage DonorSpring or the applicable third party, DonorSpring’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without DonorSpring’s prior express written consent. All goodwill generated from the use of any DonorSpring Trademark will inure solely to DonorSpring’s benefit.
d. Restrictions. DonorSpring hereby reserves all rights not expressly granted to you in this Section 3. Accordingly, nothing in this TOU or on the Site will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Site or any DonorSpring Content or Trademarks located or displayed on or within the Site.
4. User Content.
a. Definition. “User Content” means any content that you post, submit or otherwise transmit (collectively, “Post”) to the Site, including, without limitation, text, photographs and/or any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For clarity, User Content excludes DonorSpring Content and Feedback (defined below).
b. Your Rights to User Content. YOU RETAIN COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY USER CONTENT THAT YOU POST TO THE SITE SUBJECT TO THE RIGHTS YOU GRANT IN THIS TOU.
c. License to DonorSpring. If you Post User Content to the Site, then you hereby grant to DonorSpring a worldwide, non-exclusive, transferable, and royalty-free right and license to host, store, transmit, reproduce, distribute, create derivative works from, publicly perform and display and otherwise use and exploit your User Content, in any media now known or later created, to provide, improve, advertise, promote and market the Site and DonorSpring’s business.
d. Representations and Warranties. You are solely responsible for your User Content and the consequences of Posting User Content on the Site. By Posting User Content on the Site, you affirm, represent, and warrant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize DonorSpring to use, your User Content as necessary to exercise the licenses granted by you in this Section; and (ii) your User Content, and the use of your User Content as contemplated by this TOU, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause DonorSpring to violate any law or regulation.
e. Disclaimer. We are under no obligation to edit or control User Content that you or other users Post on the Site, and will not be in any way responsible or liable for User Content. DonorSpring may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this TOU or is otherwise objectionable, such as, without limitation, User Content that DonorSpring determines is or could be interpreted to be infringing, defamatory or otherwise unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against DonorSpring with respect to User Content. We expressly disclaim any and all liability in connection with User Content.
5. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third-Party Rights. DonorSpring respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on the Site.
b. Repeat Infringer Policy. DonorSpring’s intellectual property policy is to (i) remove or disable access to material that DonorSpring believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Site; and (ii) remove any User Content Posted to the Site by “repeat infringers.” DonorSpring considers a “repeat infringer” to be any user that has uploaded User Content to the Site and for whom DonorSpring has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. DonorSpring has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon DonorSpring’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by DonorSpring with the user alleged to have infringed a right you own or control, and you hereby consent to DonorSpring making such disclosure. Your communication must include substantially the following:
i. a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit DonorSpring to locate the material;
iv. information reasonably sufficient to permit DonorSpring to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. DonorSpring’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via E-mail: help@donorspring.com;
e. Counter Notification. If you receive a notification from DonorSpring that material you Posted on the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide DonorSpring with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to DonorSpring’s Designated Agent through one of the methods identified in Section 5.d above and include substantially the following information:
i. your physical or electronic signature;
ii. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which DonorSpring may be found, and you will accept service of process from the person who provided notification in accordance with Section 5.d above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to DonorSpring in response to a Notification of Claimed Infringement, then DonorSpring will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that DonorSpring will replace the removed User Content or cease disabling access to it in 10 business days, and DonorSpring will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless DonorSpring’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on DonorSpring’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [DonorSpring] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
DonorSpring reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
6. Restrictions on Use of the Site.
a. Without limiting any other terms of this TOU, when using the Site, you agree not to (and not to attempt to):
i. decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Site;
ii. use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, or any activity conducted on the Site;
iii. delete or alter any material DonorSpring makes available on the Site;
iv. frame or link to any of the materials or information available on the Site;
v. use or exploit any Trademarks or DonorSpring Content in any manner that is not expressly authorized by this TOU;
vi. access, tamper with, or use non-public areas of the Site, DonorSpring’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of DonorSpring’s providers;
vii. provide any false personal information to DonorSpring;
viii. create a false identity or impersonate another person or entity in any way;
ix. restrict, discourage, or inhibit any person from using the Site;
x. use the Site, without DonorSpring’s prior express written consent, for any commercial or unauthorized purpose;
xi. gain unauthorized access to the Site or personally identifiable information, or to other computers or websites connected or linked to the Site;
xii. Post any Objectionable Content;
xiii. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Site or communications equipment and computers connected to the Site;
xiv. violate any federal, state, or local laws or regulations or the terms of this TOU; or
xv. assist or permit any person in engaging in any of the activities described above.
7. External Sites.
The Site may contain links to other websites or other online properties that are not owned or controlled by DonorSpring (collectively, “External Sites”). The content of External Sites is not developed or provided by DonorSpring. DonorSpring is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
8. Feedback.
While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending DonorSpring or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to DonorSpring, you agree that:
a. DonorSpring has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and DonorSpring is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant DonorSpring perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
9. Donation Reporting.
Donations to charities (501(c)(3) organizations) and social welfare groups (501(c)(4) organizations) are not subject to any contributions limits. You may make unlimited donations to these groups on the site. DonorSpring cannot be responsible for your treatment of these donations on your tax returns. Charitable donations are tax-deductible for federal income tax purposes. Social welfare donations are not tax deductible as charitable contributions. We will do our best to provide you with all relevant information regarding tax treatment of donations to the entities on our site, such as what percentage of your donation might be used for lobbying activities (check your receipt). However, it is your responsibility to report your donations accurately as required and to pay your taxes. We recommend consulting your tax adviser or tax preparer if you have any questions.
10. Refund Policy.
DonorSpring does everything we can to accommodate requests for refunds. We do our best to honor refunds requested for reasons such as input error, when a contributor accidentally donates twice or enters the wrong donation amount. DonorSpring will not consider refunds for other reasons such as a change in personal opinion or the cancellation of an event. DonorSpring reserves the right to refuse a refund request for these or other reasons.
All refund requests are subject to the availability of the contribution funds. Because DonorSpring forwards contributions to the cause or organization to whom you choose to contribute, DonorSpring will only refund a contribution if we still have the funds or can recover the funds from the recipient. For this reason, it is of the utmost importance that you make your request for a refund as soon after contributing as possible.
All refunds issued by DonorSpring will be credited back to the card used to make the contribution. In all cases where we are not able to accommodate a refund request, we will be happy to refer you to the recipient of your contribution so that you may request a refund directly from them.
Our state of the art fraud detection software constantly monitors the site for fraudulent activity using stolen cards. When our software identifies a fraudulent transaction, the contribution will be refunded automatically regardless of whether a refund has been requested.
If you are with a cause or organization that has received a contribution through DonorSpring and would like to request that we refund that contribution, please contact us at help@donorspring.com and we will do our best to assist you.
11. Fees.
In exchange for providing the Services, Organization shall pay to DonorSpring both a service fee and fees when DonorSpring processes a donation. The service fee and billing cycle are described in the OrderForm.
Organization shall pay a processing fee equal to 18% of donations from contacts made accessible to Organization by DonorSpring through the platform. If an Organization’s existing contact who was declared to DonorSpring and not provided by DonorSpring to Organization makes a donation through the platform, DonorSpring will not charge Organization a fee on the donation. In this second instance, DonorSpring may charge a processing fee directly to the donor if the donor agrees to cover the fee.
These fees are separate from and in addition to any payment method fees not originating from DonorSpring, e.g. a credit card merchant fee.
DonorSpring reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Organization (which may be sent by email). If Organization believes that DonorSpring has billed Organization incorrectly, Organization must contact DonorSpring no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
12. Money Back Guarantee
DonorSpring offers a money back guarantee under the following conditions: Organization must pay either an annual or monthly fee,pay on time, use the DonorSpring platform for 12 months, send at least two emails through the platform per week, and follow our content and fundraising suggestions.
If Organization meets these conditions and, after 12 months,has raised less money through the DonorSpring platform than Organization paid in monthly or annual fees to DonorSpring, then Organization may terminate the agreement by providing 30 days’ prior written notice and request a refund.DonorSpring will then refund Organization the difference between the sum of your monthly or annual fees and the total amount Organization raised through the platform.
DonorSpring may, at its sole discretion, provide a refund under other circumstances. Additionally, DonorSpring may, at its sole discretion, deny the refund if it determines that Organization acted in bad faith.
13. Data Privacy
DonorSpring shall not share any donor contact information,including name and email information, provided by Organization with any third party without the prior consent of Organization.
Organization shall not share any prospective donor contactinformation, including donor name and email information, provided by DonorSpring with any third party without the consent of DonorSpring.Furthermore, Organization shall not solicit donations from any individual provided by DonorSpring outside of the DonorSpring platform except as agreed toby DonorSpring in writing.
14. Cancellation Policy.
For your convenience, DonorSpring offers the ability to make a recurring contribution to one or more recipients using a stored payment method. When you sign up for a recurring contribution, DonorSpring will charge the amount you designated to your stored account once each month and forward that contribution to the recipient you have chosen. All payment information is stored securely, and we will never change the amount, frequency, or recipient of your recurring contribution. If you wish to cancel future instances of a recurring contribution, or change the payment method used for future charges, you can do so by sending us an email with your request.
15. Dispute Resolution.
a. General. In the interest of resolving disputes between you and DonorSpring in the most expedient and cost-effective manner, you and DonorSpring agree that any dispute arising out of or in any way related to this TOU or your use of the Site will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this TOU or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOU. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOU, YOU AND DONORSPRING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 9.a above, nothing in this TOU will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and DonorSpring will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOU, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting DonorSpring. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). DonorSpring’s address for Notice is: 18 Green Meadow Lane, Kiawah Island, SC 29455, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or DonorSpring may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or DonorSpring must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by DonorSpring prior to selection of an arbitrator, DonorSpring will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by DonorSpring in settlement of the dispute prior to the arbitrator’s award; or (C) $100.
e. Fees. If you commence arbitration in accordance with this TOU, DonorSpring will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in South Carolina, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse DonorSpring for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this TOU to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 9.
f. No Class Actions. YOU AND DONORSPRING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and DonorSpring agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this TOU, if DonorSpring makes any future change to this arbitration provision, other than a change to DonorSpring’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to DonorSpring’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and DonorSpring.
h. Enforceability. If Section 9.f above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.
16. Limitation of Liability and Disclaimer of Warranties.
THE TERMS OF THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NEITHER DONORSPRING NOR ITS AFFILIATES (COLLECTIVELY, “DONORSPRING PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SITE OR ANY CONTENT THEREON. ACCORDINGLY, THE SITE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE DONORSPRING PARTIES HEREBY DISCLAIM ALL WARRANTIES, LLCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SITE.
b. WITHOUT LIMITING SECTION 10.a, THE DONORSPRING PARTIES DO NOT WARRANT THAT THE SITE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO DONORSPRING PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. IN NO EVENT WILL ANY DONORSPRING PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, LLCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SITE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (LLCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE DONORSPRING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DONORSPRING’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER DONORSPRING PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THIS TOU IS LIMITED TO U.S. $100.
17. Third Party Disputes.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SITE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE DONORSPRING PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
18. Indemnification.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the DonorSpring Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your breach of this TOU; or (ii) your access to, use, or misuse of the DonorSpring Content, Trademarks or the Site; or (iii) any allegation that you used the Site, or otherwise caused us, to send a Message in violation of any applicable law, rule, regulation or industry best practice. DonorSpring will provide notice to you of any such claim, suit, or proceeding. DonorSpring reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section if DonorSpring believes that you are unwilling or incapable of defending DonorSpring’s interests. In such case, you agree to cooperate with any reasonable requests assisting DonorSpring’s defense of such matter at your expense.
19. Term and Termination of the TOU.
a. Term. As between you and DonorSpring, the term of this TOU commences as of your first use of the Site and continues until the termination of this TOU by either you or DonorSpring.
b. Termination. This Agreement is for the Initial Service Term as specified in the OrderForm, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination, in writing, at least 30 days prior to the end of the then-current term.
Each party shall act in good faith in the event of any termination and shall promptly return to the other party any property that has been shared.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation,accrued rights to payment, confidentiality obligations, warranty disclaimers,and limitations of liability.
20. Miscellaneous.
This TOU is governed by the internal substantive laws of the State of South Carolina without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and DonorSpring as a result of this TOU or use of the Site. If any provision of this TOU is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this TOU, which will remain in full force and effect. Failure of DonorSpring to act on or enforce any provision of this TOU will not be construed as a waiver of that provision or any other provision in this TOU. No waiver will be effective against DonorSpring unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. This TOU constitutes the entire agreement between you and DonorSpring with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This TOU will inure to the benefit of our successors and assigns. You may not assign this TOU or any of the rights or licenses granted hereunder without the prior express written consent of DonorSpring. DonorSpring may assign this TOU, including all its rights hereunder, without restriction. For the purposes of this TOU, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.
21. Contact Us.
If you would like to contact us in connection with your use of the Site, then please contact us by email at help@donorspring.com.
Last Updated: September 14, 2023. You may request an earlier version of the TOU if your agreement with DonorSpring predates this current version by contacting us by email at help@donorspring.com.
