Terms of Use - Benjamin

Last Updated: June 20, 2023

These User Terms of Use (“Terms”) govern the use of the Benjamin Platform (“Platform”) by all users. The Platform is a product of Benjamin Systems, LLC (“Benjamin”).

By using the Platform, you acknowledge and agree to these Terms. If you do not agree to be bound by these Terms, then, you may not use the Platform. If you have entered into a License Agreement to use the Platform, that agreement may supersede these Terms except with respect to your general use of our Site.

The Platform is a Software-as-a-Service (SaaS) tool to facilitate consensual nonprofit matching, donation bundling, and donor-matching (the “Services”) between the Platform’s Fundraiser Clients, Bundler Clients, and our Donor Clients (individually and collectively referred to as “Clients”).

Our Fundraising Clients typically include nonprofits organizations, social organizations, advocacy groups, social movements, political campaigns and committees, their staff, their consultants, and others delegated access to the Platform by the Fundraising Clients. Our Bundler Clients include individual donors, organizational donors and others who act as “bundlers” to collect or solicit donations from Donor Clients, or individuals delegated access to the Platform by our Clients for purposes of sourcing potential donors. Our Donor Clients include individuals and organizations that have historically or may in the future make donations to our Fundraising Clients. The purpose of our Platform requires that we receive data from all three categories of Clients, that Clients provide information on and to other Clients, and that we make Donor Client recommendations to Bundler and Fundraising Clients.

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BENJAMIN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).

1. Agreement and Changes to Terms

a. Agreement to Terms

These terms are a binding legal commitment between you and Benjamin, so please read them carefully. If you are accessing and using the Platform on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. If you do not agree to be bound by these terms, you may not use the Platform.

b. Changes to Terms or Services

We may modify or update the Terms and Platform at any time, in our sole discretion. If we revise these Terms or make changes to the Platform that we believe may significantly impact your use of the Platform, we’ll let you know through the Dashboard or via an e-mail to the email address owner of your Account. If you continue to use the Platform after we have communicated the modified Terms to you, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not use the Platform. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

2. Privacy Policy

Please refer to our Privacy Policy (link to Privacy Policy) for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Platform is subject to our Privacy Policy.

3. Your Benjamin Account

a. Eligibility

You may use the Platform only if you are 18 years or older and capable of forming a binding contract with Benjamin and are not barred from using the Services under applicable law.

b. Registration and Your Information

You must create an account (“Account”) using the Dashboard and otherwise use our Platform (except for generally visiting and interacting with our Site). You agree to provide us with accurate and complete information for your Account and to update such information, as needed, to keep it accurate, complete and up-to-date. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You agree that you are responsible for all activities that occur under your Account, including the activities of your Authorized Users (as defined below), whether or not you know about them.

4. Access and Use of the Services

a. Platform License Grant

Subject to your compliance with these Terms and completion of an Order Form and License Agreement, Benjamin grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform

b. License Restrictions

You may not allow access to or use of the Platform by anyone other than individuals whom you have authorized through the methods permitted by Benjamin (e.g., by assigning unique login credentials to each such individual) to use the Platform solely on your behalf and for whom all applicable fees have been paid. Such individuals are referred to in these Terms as “Authorized Users,” and may include but are not limited to your employees, consultants, contractors, and agents.

You may not copy any portion of the Platform. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Platform; (ii) distribute, transfer, sublicense, lease, lend or rent the Platform to any third party; (iii) reverse engineer, decompile or disassemble the Platform; or (iv) make the functionality of the Platform available to anyone other than your Authorized Users except with our express written permission. Benjamin reserves all rights in and to the Platform not expressly granted to you under these Terms.

5. Customer Data

You acknowledge that you have read our Privacy Policy and understand that it sets forth how we will collect, store, share and use your Personal Data (as defined therein). If you do not agree with our Privacy Policy, then you must stop using the Benjamin Platform immediately.

6. Payment

a. Payment Information

Payment terms are contained in your Order Form and License Agreement.

b. Agreement to Pay

You agree to pay Benjamin the amount that is specified in the Order Form in accordance with these Terms and any other terms associated with such payment plan, and you authorize Benjamin (or our third party payment processor) to bill your payment method on a periodic basis in accordance with such terms. All amounts paid are non-refundable and we reserve the right to change our prices in the future.

7. Acceptable Use Policy

Without limiting any other terms of these Terms, you must use the Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You will keep confidential and not disclose to any third parties any user identifications, or Account information. The Service is not intended for use by persons under the age of 18. You must ensure that each of your Authorized Users is aware of and complies with the requirements and restrictions set forth in this paragraph.

You are responsible for all activities that occur under your account (or any of your Authorized Users’ accounts), and for Authorized Users’ compliance with these Terms. You agree to (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content (as defined below) and Personal Data that you (or any of your Authorized Users) input into or store using the Platform; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify Benjamin promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Platform.

8. Feedback

We welcome feedback, comments, and suggestions for improvements to the Platform (“Feedback”). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

9. Content Ownership, Responsibility, and Removal

a. Definitions

For purposes of these Terms: (i) “Content” means text, graphics, images, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Platform by Benjamin; and (ii) “User Content” means any Content that users (including you and your Authorized Users) provide to be made available through the Platform except for Customer Data. Content includes, without limitation, User Content — but Personal Data (as discussed further in our Privacy Policy) is not included in User Content. Examples of User Content include but are not limited to BChat comments on our Site, user notes, and communications made using the Platform that are visible to other customers or Authorized Users.

b. Rights in Personal Data and User Content Granted by You

Subject to and without limiting Section 5 above, you hereby grant to Benjamin a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative work, publicly display, publicly perform and distribute your User Content as needed to operate and provide the Platform to you and with respect to Customer Data as otherwise specified in our Privacy Policy.

You are solely responsible for all your User Content and Personal Data. You represent and warrant that you have all rights and consents, and will obtain all rights and consents, with respect to all of your User Content and Customer Data to the extent necessary (i) for you and Benjamin to comply with all applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws; and (ii) for you to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, your Customer Data, nor your use and provision of your User Content or Customer Data to be made available through the Platform, nor any use of your User Content or Customer Data by Benjamin on or through the Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You can remove your User Content by specifically deleting it or requesting that Benjamin delete it in accordance with our Privacy Policy.

c. Rights in Content Granted by Benjamin

Subject to your compliance with these Terms, and except as otherwise licensed to you in accordance with Section 4.b above, Benjamin grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and download, view, copy, display and print the Content solely for your internal purposes and solely in connection with your permitted use of the Platform.

10. General Prohibitions and Benjamin’ Enforcement Rights

Without limiting any other terms of these Terms, you agree not to do any of the following:

Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Platform or any individual element within the Platform, Benjamin’ name, any Benjamin trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Benjamin’ express written consent;
Access, tamper with, or use non-public areas of the Platform, Benjamin’ computer systems, or the technical delivery systems of Benjamin’ providers;
Attempt to probe, scan or test the vulnerability of any Benjamin system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Benjamin or any of Benjamin’ providers or any other third party (including another user) to protect the Platform or Content;
Attempt to access or search the Platform or Content or download Content from the Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Benjamin or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Benjamin trademark, logo URL or product name without Benjamin’ express written consent;
Use the Platform or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Platform;
Collect or store any personally identifiable information from the Platform from other users of the Platform without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.

We reserve the right to monitor your use of the Platform or Content or to review or edit any of your Content for the purpose of operating the Platform, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Platform. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

11. DMCA/Copyright Policy

Benjamin respects copyright law and expects its users to do the same. It is Benjamin’ policy to terminate in appropriate circumstances Account holders who repeatedly infringe the rights of copyright holders. If you are aware of any infringement taking place on the Platform, or wish to notify us of any infringement of your intellectual property, please notify us at [email protected].

12. Warranty Disclaimers

THE PLATFORM AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

13. Links to Third Party Websites

The Platform may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or Platform on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

14. Termination

We may terminate your access to and use of the Platform, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at [email protected].

15. Indemnity

You will indemnify and hold harmless Benjamin and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Platform or Content, (ii) your User Content, or (iii) your violation of these Terms.

16. Limitation of Liability

NEITHER BENJAMIN NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PLATFORM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EXCEPT FOR DAMAGES RESULTING FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY’S TOTAL LIABILITY UNDER ALL ORDER FORMS AND THESE TERMS WILL EXCEED THE TOTAL AGGREGATE FEES PAID BY LICENSEE TO BENJAMIN IN THE 6 MONTH PERIOD PRIOR TO THE CLAIM RELATED TO THE LIABILITY.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BENJAMIN AND YOU.

17. Dispute Resolution

a. Mandatory Arbitration of Disputes

The parties shall attempt to resolve any disputes related to these Terms or an Order Form by first escalating the dispute to a level of management in each party’s organization that is removed from the day-to-day implementation or the prior negotiation of the relationship between the parties. If the parties cannot resolve the dispute pursuant to the foregoing sentence, as the exclusive means for initiating any adversarial proceedings relating to these Terms or an Order Form, a party may demand that the dispute be resolved by arbitration administered by a nationally recognized arbiter to be heard in Northern Virginia under the rules of the American Arbitration Association. Neither party may commence any adversarial proceeding in any other forum. The arbiter’s determination will be final and binding on the parties, may be entered in a court of competent jurisdiction, and may be enforced in other jurisdictions. Each party hereby consents to any dispute related to these Terms or an Order Form being heard and resolved exclusively pursuant to this section. Nothing in this section is intended to be construed to prevent a party from seeking injunctive or similar interim relief from a court of competent jurisdiction.

If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. The parties agree that the arbitrator will have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.

b. Class Action Waiver

YOU AND Benjamin 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, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void.

18. General Terms

a. Governing Law

These Terms and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.

b. Entire Agreement

These Terms, your Order Form, and License Agreement constitute the entire and exclusive understanding and agreement between Benjamin and you regarding the Platform and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

c. No Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Benjamin’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Benjamin may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

d. Notices

Any notices or other communications provided by Benjamin under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

e. Waiver of Rights

Benjamin’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Benjamin. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

19. Contact Information

If you have any questions about these Terms or the Services, please contact Benjamin at [email protected]; Benjamin Systems, LLC,.1900 Campus Commons Drive, Suite 100, Reston VA 20191.