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PLEASE REVIEW OUR UPDATED TERMS OF SERVICE

A message to our users:
DonorJams.com (DonorJams Inc.) has made the decision to discontinue its services. We will no longer be accepting submissions from artists or charitable organizations. Thank you to all artists who have generously participated on our fundraising platform, and thank you to our charitable partners for continuing their great work!

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DonorJams Charity Terms of Service

  1. Introduction.

1.1.      Effective Date. The effective date of this Agreement is on the date that you accept this Agreement.

1.2.      Agreement. Welcome to DonorJams! DonorJams Inc. (“DonorJams”) recommends that you read the following terms and conditions carefully. By accessing or using the DonorJams website, the DonorJams Service, including any software applications made available by DonorJams (together, the “Website” or “Service“), however accessed or used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement“). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between DonorJams and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.

1.3.      About DonorJams. DonorJams is a platform for artists to fundraise by distributing their music to be sold (and/or making their music available for streaming), and sending all or a part of the money earned to charitable organizations, after any applicable taxes owed by DonorJams in relation to the sales, streams, and/or licensing of that music. DonorJams is also a platform for charitable organizations to apply to be listed as an option for artists to select, for the purposes of fundraising for that charitable organization.

DonorJams may or may not send portions of the money earned to the artists and DonorJams may or may not retain a portion of the money earned as a fee for their distribution services. For more details, see the Section 11.2: Money Earned Sent to Charitable Organizations After Taxes and Other Deductions.

1.3.1.   Charitable Organization Selection. Non-profit organizations and charitable organizations may apply to be listed on DonorJams. If accepted, users who upload music will be able to select the charitable organization to receive some or all of the money earned (including royalty payments) from their music sales, streams, and/or licensing.

DonorJams has full discretion to approve or reject applications from charitable organizations.

1.4.      Separate Privacy Policy. By using the Service, you represent and warrant that you have read and understood, and agree to be bound by, this Agreement and DonorJams Inc.’s Privacy Policy (the “Privacy Policy“), which is incorporated into this Agreement by reference. The Privacy Policy is available at https://donorjams.com/privacy.

1.5.      Arbitration and Remedies. These terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 20 (Dispute Resolution) for full details.

  1. Privacy Policy. By using the Service, you consent to the collection and use of certain information about you, as specified in the Privacy Policy discussed in Section 1.4 (Separate Privacy Policy). DonorJams encourages users of the Service to frequently check the Privacy Policy for changes.
  2. Changes to Agreement and Privacy Policy. Internet technology and the applicable laws, rules, and regulations change frequently. Accordingly, DonorJams reserves the right to change this Agreement and its Privacy Policy at any time upon notice to you, to be given by the posting of a new version or a change notice. It is your responsibility to review this Agreement and the Privacy Policy periodically. If at any time you find either this Agreement or the Privacy Policy unacceptable, you must immediately cease accessing and/or using the Service. Unless DonorJams obtains your express consent, any revised Privacy Policy will apply only to information collected by DonorJams after the revised Privacy Policy takes effect, and not to information collected under any earlier versions of the Privacy Policy.
  3. Eligibility.

4.1.      By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.

4.2.      If you are under the age of 18, you may use the Service only with permission of a parent or guardian.

4.3.      Corporate Use. If you are using the Service on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.

  1. License to Use Service. Subject to your compliance with these Terms of Service, DonorJams grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the DonorJams websites (located at the following URLs: donorjams.com), and to use the Service. The Service, including any portion of the DonorJams Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of DonorJams. All rights not expressly granted herein are reserved by DonorJams. Without limitation, this Agreement grants you no rights in or to the intellectual property of DonorJams or any other party, except as expressly set forth herein. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate if you breach, actually or potentially, in the sole judgment of DonorJams, any provision of this Agreement.
  2. No Reliance on Third Party Content. Opinions, advice, statements, or other information made available by means of the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. DonorJams does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party by means of the Service. Under no circumstances will DonorJams be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
  3. Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify DonorJams Inc. and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the “Company Parties“) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
  4. User Accuracy and Security.

8.3.      Information Accuracy. You represent and warrant that all information you provide in connection with your use of the Service is current, complete, and accurate, and that you agree that you will update that information as necessary to maintain its completeness and accuracy by submitting a message through the following webpage: https://donorjams.com/contact. You agree that you will not submit any fake content (including without limitation any image or likeness) to willfully and credibly impersonate another person, whether actual or fictitious. If DonorJams believes in its sole discretion that the information you provide is not current, complete, or accurate, DonorJams has the right to refuse your use of the Service, or to terminate or suspend your use at any time, or both. Information on updating or making changes to your information can be found in the Section concerning “User Ability to Access, Update, and Correct Personal Information” in DonorJams’s Privacy Policy.

  1. Consent to Receive Electronic Communications from Company. By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you hereby expressly consent to receive electronic and other communications from DonorJams, over the short term and periodically, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by submitting a message through the following webpage: https://donorjams.com/contact. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
  2. Recorded Music.

10.1. When artists upload their Recorded Music to DonorJams, they are required to select a charitable organization from the available options listed on our Website to which DonorJams will send all of or a portion of the money earned (including royalty payments) from sales, streams, and/or licensing of that Recorded Music. Subject to any amendments in accordance with Section 23.3 (Amendments).

 

10.2.    Music Distribution.

DonorJams uses the services of one or more third party music distributor(s) (“Distributors”) to distribute music to various digital music retailers (“Digital Music Stores”) and collect money earned from those Digital Music Stores in relation to that music.

10.2.1. DonorJams serves as a platform for users who comply with the Agreement to:

  1. upload Recorded Music to the DonorJams website,
  2. display and promote Recorded Music on the DonorJams website,
  3. sell Recorded Music on Digital Music Stores through the distribution methods of DonorJams and Distributors,
  4. license and/or publish Recorded Music to Digital Music Stores through the distribution methods of DonorJams and Distributors, and
  5. make Recorded Music available for streaming on Digital Music Stores through the distribution methods of DonorJams and Distributors;

while sending some (or all) some of their proceeds to charitable organizations, after any applicable taxes owed by DonorJams in relation to the sales, streams, and/or licensing that Recorded Music. DonorJams may or may not provide an option for artists to receive a portion of the money earned (including royalty payments) from their Recorded Music sales, streams, and/or licensing.

DonorJams may also promote users’ Recorded Music on social media platforms in order to assist with these functions listed above and any other functions of DonorJams.

10.2.2. DonorJams’s role is limited because DonorJams is not directly involved in producing music. Without limitation, DonorJams does not guarantee that it will pre-screen sellers or buyers. Nor does DonorJams guarantee the identity of any user. DonorJams does not necessarily prescreen the content and/or information provided by users, except on occasions in which DonorJams chooses to. DonorJams may not always be in direct control of the quality of any aspect of the items listed on Digital Music Stores or may not always be in direct control of the seller services and logistics associated with the sale, including the accuracy of any content related to any item listing. DonorJams will attempt to provide accuracy within its role in the music distribution process, but DonorJams makes no guarantee that User Content (including Recorded Music) will be displayed and/or made available at various Digital Music Stores with accuracy.DonorJams does not take or transfer ownership of music or liability attaching thereto. For additional information, please carefully review Section 17 (Disclaimers; Limitation of Liability).

10.2.3. DonorJams makes no guarantee that Recorded Music will be available at the various Digital Music Stores which it is distributed to.

11.1.    Neutral Platform. DonorJams is a neutral technology platform that distributes music at the direction of artists (“Uploads“). DonorJams makes no representations about verifying the originality of any user-contributed Uploads.

11.2.                Money Earned Sent to Charitable Organizations After Taxes and Other Deductions

After any taxes, import duties, and additional fees and deductions by DonorJams, Digital Music stores, and/or Distributors (“Fees and Deductions”), including but not limited to:

  1. funds deducted by DonorJams for income taxes that DonorJams is responsible for paying as a result of money earned (including royalty payments) from a user’s Recorded Music sales, streams, and/or licensing
  2. deductions for music publishing licenses and related fees
  3. deductions for publishing and/or royalty payments to other artists, composers, songwriters, publishers, performance rights organizations or other third parties,
  4. deductions for customer returns/refunds/chargebacks,
  5. payment/bank transfer fees, credit card processing fees,
  6. penalty fees for copyright infringement violations,
  7. funds retained by Digital Music Stores for their services,
  8. funds sent to a user for their Recorded Music (but only if DonorJams provides an option for You to receive a portion of the money earned), and
  9. funds retained by DonorJams as a fee for use of the Service (provided that any funds retained by DonorJams as a fee for use of the Service are only retained by DonorJams if DonorJams displays their retained fee on the Website when a user uploads their Recorded Music to DonorJams, including the amount or percentage of this fee).

100% of the remaining money earned (including royalty payments) which is received by DonorJams from a user’s Recorded Music (in connection with the Service) will be sent to the charitable organization which that user has chosen to support with that Recorded Music.

11.3.                Money Distribution

The money earned from Recorded Music in connection with the Service will first be collected by third party Distributors from Digital Music Stores. The Distributors will then send those funds from that Recorded Music (and related reports) to DonorJams. It typically takes 90-150 days after sales, royalties, and/or earnings have occurred for DonorJams to receive this money earned from Recorded Music.

DonorJams does not calculate, verify the accuracy of, audit, or determine any amount of money earned that is received from Distributors and/or Digital Music Stores in relation to Recorded Music. However, if DonorJams becomes aware of any discrepancies related to money earned from Recorded Music in connection with the Service, DonorJams will attempt to investigate the discrepancy.

DonorJams does not guarantee that Distributors and/or Digital Music Stores will send money to DonorJams for music sales, streams, royalties, and/or earnings. DonorJams will only pay charitable organizations money that DonorJams has received from Distributors and Digital Music Stores for music sales, streams, royalties, and/or earnings (after any applicable deductions as mentioned above). DonorJams is not obligated to pay charitable organizations money that DonorJams expects to receive in the future. In the event that Distributors deduct any funds from DonorJams for any customer returns/refunds/chargebacks (related to any music sales, streams, royalties, and/or earnings), these funds may not be received by DonorJams, and therefore, may not be distributed to charitable organizations.

Charitable Organizations will provide DonorJams Inc. with a preferred payment method for DonorJams Inc. to send funds. However, DonorJams Inc. may choose to use any other method to send funds.

11.3.1. In the event of the corporate dissolution of DonorJams Inc., the owner(s) of DonorJams Inc. will be responsible, on behalf of DonorJams Inc., to send the money earned from a user’s Recorded Music in connection with the Service (which was earned before the dissolution but received after the dissolution) to the charitable organization which that user has chosen to support with that Recorded Music. 

 11.3.2. However, prior to the dissolution, DonorJams Inc. may, for each Recorded Music in connection with the Service, estimate the amount of money that will be earned before the dissolution but received from Digital Music Stores after the dissolution. Based on such estimate and pursuant to any Fees and Deductions listed in section 11.2 of these Terms, DonorJams Inc. may send the estimated funds to the charitable organization which a user has chosen to support with their Recorded Music. 

 11.3.3. If any such estimate is less than the actual amount of money earned, then the owner(s) of DonorJams Inc will be responsible, on behalf of DonorJams Inc., to send to the charitable organization the amount of funds that is equal to the difference of: 

  • The actual remaining money earned from a user’s Recorded Music in connection with the Service (which was earned before the dissolution but received after the dissolution), pursuant to section 13.5 of these Terms; and
  • The estimated funds sent to the charitable organization as referenced in section  11.3.2. of these Terms.

11.4.    DonorJams reserves the right, in its sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds.

11.5.    Limited Period to Challenge Payment Discrepancies. In the event of a discrepancy pertaining to sales, streams, licensing, funds sent to charitable organizations, funds sent to artists, or any Fees and Deductions (as defined in the section titled “Money Earned Sent to Charitable Organizations After Taxes and Other Deductions”), you have 15 business days from the date that DonorJams sent the funds in question to the designated charitable organization to send notification to DonorJams about the discrepancy, after which all payments or lack of payments are otherwise final and no longer subject to change. You agree to waive, and hereby waive, any claims arising from such discrepancies by failing to provide timely written notification to DonorJams within the fifteen business day time period. You can notify DonorJams of discrepancies only by sending an email to kevin@donorjams.com detailing the amounts owed to You and/or any other third parties (including a charitable organization) and the amount tendered to You and/or those other third parties.

  1. Alternate Distribution Agreements. In some cases, DonorJams may, at its own discretion, enter into an Alternate Distribution Agreement with an artist (or label, or any other third party permitted by law to distribute and/or publish music) in which that artist or label or other third party can distribute Recorded Music via their own chosen distribution channel and without DonorJams, while still having that particular Recorded Music displayed on DonorJams’ website and/or social media platforms. These Alternate Distribution Agreements will require the artist or label or other third party to donate some or all of their money earned from the music release (which is displayed by DonorJams) to a charitable organization(s) listed on the site.
  1. Third Party Websites. The Service is linked with the websites of third parties (“Third Party Websites“), some of whom may have established relationships with DonorJams and some of whom may not. DonorJams does not have control over the content and performance of Third Party Websites. DonorJams has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, DonorJams does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. DonorJams disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
  2. User Content.

14.1.    User Content Defined. “User Content” is any content, material, or information, including Recorded Music and Uploads, but not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that you submit, upload, and/or post to, or transmit, display, perform, or distribute by means of the Service, whether in connection with your use of the Service or otherwise. This includes, without limitation, company information, photos, personal photos, images, text, lyrics, pictures, graphics, and videos.

14.2.    You Own Your User Content. DonorJams does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to your User Content.

14.3.    License of User Content. By submitting, uploading, or posting User Content in any form with, through, or to the Service, you thereby grant the Company Parties, a royalty-free, perpetual, non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable, revocable (as set forth in Section 5 (License to Use Service) of this Agreement), assignable license to copy or otherwise reproduce, modify, adapt, translate, upload, distribute, publish, post (whether on social media or by other means), enhance, transmit, publicly display, and/or otherwise use User Content in connection with the operation of the Service, or any other similar or related business, in any medium now existing or later devised, including without limitation in advertising and publicity. You further agree that the Company Parties may publish or otherwise disclose your company’s information, brand, and logo in connection with their exercise of the license granted under this section. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Company Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section.

 

14.4.    Your Representations About User Content. You hereby represent and warrant that you: (a) own all rights, title, and interest in and to all User Content you submit, or are otherwise authorized to grant the rights provided to the Company Parties under this section; or (b) have written consent, release, and/or permission of every identifiable individual person in any User Content you submit to use the name and likeness of every identifiable person in the User Content.

14.5.    Company’s Right to Reject User Content. DonorJams and/or Distributors reserve the right, in their sole discretion, to reject or remove any User Content for any reason. The categories specified in Section 15 (Prohibited Uses) are not exhaustive lists of content that DonorJams reserves the right to remove or deny.

  1. Prohibited Uses. DonorJams imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:

15.1.    harassing or stalking any person, or contacting any person who has requested not to be contacted

15.2.    providing false, misleading, or inaccurate information to DonorJams or any other person in connection with the Service

15.3.    impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity

15.4.    modifying or changing the placement and location of any advertisement posted through the Service

15.5.    harvesting or otherwise collecting information about users, including email addresses and phone numbers

15.6.    without express written permission from DonorJams, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites

15.7.    accessing content or data not intended for you, or logging into a server or account that you are not authorized to access

15.8.    attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization

15.9.    interfering or attempt to interfere with the use of the Service by any other user, host, or network, including (without limitation) by means of submitting a malware or exploiting software vulnerabilities

15.10.  using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services

15.11.  forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers)

15.12.  while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising

15.13.  attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable

15.14.  creating additional accounts to promote your (or another’s) business, or causing others to do so

15.15.  paying anyone for interactions on the Service

  1. Intellectual Property.

16.1.    Compliance with Law.

16.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.

16.1.2. You hereby represent and warrant that you are the sole and exclusive owner of any User Content that you submit through the Service. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Service. DonorJams users bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.

16.2.    Trademarks. DonorJams and the DonorJams logo (collectively, the “Company Marks“) are trademarks or registered trademarks of DonorJams. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in or to, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of DonorJams, and you agree to assign, and hereby do assign, all such goodwill to DonorJams. You shall not at any time, nor shall you assist others to, challenge DonorJams’s right, title, or interest in or to, or the validity of, the Company Marks.

16.3.    Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the DonorJams logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by DonorJams or are the property of DonorJams’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in or to any such materials.

16.4.    DMCA Policy.

16.4.1. As DonorJams asks others to respect DonorJams’s intellectual property rights, DonorJams respects the intellectual property rights of others. DonorJams follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA“).

16.4.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify DonorJams by means of emailed DMCA takedown notice (“Infringement Notice“), providing the information described below. If DonorJams takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available by means of the most recent email address that party provided to DonorJams.

16.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.

16.4.4. The DMCA requires that all Infringement Notices must include the following:

16.4.4.1.          A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;

16.4.4.2.          An identification of the copyright claimed to have been infringed;

16.4.4.3.          A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit DonorJams to find and positively identify that material;

16.4.4.4.          Your name, address, telephone number, and email address; and

16.4.4.5.          A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.

16.4.5. Infringement Notices should be sent to kevin@donorjams.com with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.

16.4.6. DonorJams will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.

16.4.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen database (https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.

  1. Disclaimers; Limitation of Liability.

17.1.    No Warranties. DonorJams, on behalf of itself and its licensors and suppliers, hereby expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither DonorJams nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. DonorJams disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. DonorJams shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of DonorJams, Company Parties, or DonorJams users, or their agents or representatives.

17.2.    Your Responsibility for Loss or Damage; Backup of Data.

17.2.1. You agree that your use of the Service is at your sole risk. You will not hold DonorJams or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.

17.2.2. Importantly, you hereby acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.

17.3.    Limitation of Liability. In no event shall DonorJams or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to DonorJams or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between DonorJams and you. The Service would not be provided without such limitations.

17.4.    Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and DonorJams or between you and any of DonorJams’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. DonorJams’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.

  1. Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other DonorJams policies, and with any applicable laws or regulations.
  2. Indemnity by You.

19.1.    To the fullest extent permitted by law, you (the “Indemnitor“) agree to defend, indemnify, and hold harmless DonorJams and the Company Parties (collectively, the “Indemnitees“) from and against claims, actions, demands, causes of action, damages, and  proceedings (including but not limited to reasonable attorney’s fees) resulting from any negligence, gross negligence, or willful misconduct by you under this Agreement (“Claims”). You shall have no obligation to indemnify, defend or hold harmless Indemnitees for Claims arising from the negligence or willful misconduct of Indemnitees.

19.2.    The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees.

19.3.    Without limitation, the Indemnitor also hereby agrees to compensate DonorJams for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 15 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.

  1. Dispute Resolution.

20.1.    Binding Arbitration.

20.1.1. If you and DonorJams cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).

20.1.2. You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.

20.1.3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

20.1.4. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA“), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, DonorJams will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also hereby agree to reimburse DonorJams for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. DonorJams may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys’ fees) at any time during the proceeding and upon request from either party, within 14 days of the arbitrator’s ruling on the merits.

20.2.    Restrictions Against Joinder of Claims.

20.2.1. You and DonorJams agree that any arbitration shall be limited to each Claim individually. You and DonorJams hereby agree that each may only bring claims against the other in your or DonorJams’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

20.2.2. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.

20.3.    Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or DonorJams from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or DonorJams from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of New York.

20.4.    Venue for any Judicial Proceeding.

20.4.1. This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of New York, and shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

20.4.2. The proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to New York, New York. The parties hereby stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.

  1. Termination.

21.1.    By Company. Without limiting any other provision of this Agreement, DonorJams reserves the right to, in DonorJams’s sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.

21.2.    Music Availability. DonorJams’ role in distributing Recorded Music includes maintaining the availability of Recorded Music in Digital Music Stores by using the services of Third Party Distributor(s). However, DonorJams, Third Party Distributors, and/or Digital Music Stores can remove Recorded Music from Digital Music Stores at any time with or without reason.

21.2.1. At any time and for any reason, DonorJams has the right to end any fundraising campaigns and/or fundraising relationships in connection with the Service which involve DonorJams’ users and any charitable organizations. A fundraising campaign and/or fundraising relationship will be effectively terminated once DonorJams notifies the users (the artist and the charitable organization) that the fundraising campaign and/or fundraising relationship has ended, or once DonorJams removes from its website and social media the music release that was part of a fundraising campaign. Once the fundraising campaign and/or fundraising relationship has been terminated, DonorJams and users can no longer claim to be actively involved in the terminated fundraising campaign and/or fundraising relationship. Users or previous users may use other distribution companies which are not DonorJams in order to continue to distribute any of their music which was previously part of a DonorJams fundraising campaign and/or fundraising relationship.

21.3.    Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by DonorJams.

21.4.    By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to DonorJams notice of your intention to do so, in the manner required by Section 22 (Notices).

21.5.    Effect of Termination.

21.5.1. Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Service. Upon termination, DonorJams may, but has no obligation to, in DonorJams’s sole discretion, rescind any services and/or delete from DonorJams’s systems all your Personal Information and any other files or information that you made available to DonorJams or that otherwise relate to your use of the Service.

However, solely in regards to the deletion of Personal Information from DonorJams’ records, this Section 21.5.1. (Effect of Termination) shall not apply to users exercising any of the following rights in accordance with GDPR and CCPA, as stated in Section 15 (For European Union Users) and Section 16 (For California Users) of the Privacy Policy:

-The right to withdraw consent for processing personal data

-The right to object to processing of personal data

-The right to request that DonorJams delete any personal information about You that DonorJams has collected from You. DonorJams is required to disclose this right.

-DonorJams shall delete Your personal information from its records and direct any third party service providers to do the same, provided that DonorJams receives a verifiable consumer request to delete this personal information.

 

21.5.2. After termination, DonorJams reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.

21.6.    Legal Action. If DonorJams, in DonorJams’s discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, DonorJams will be entitled to recover from you as part of such legal action, and you agree to pay, DonorJams’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.

21.7.    Survival. Upon termination, all rights and obligations created by this Agreement will terminate, except that the following Sections will survive any termination of this Agreement: Section 1.2 (Agreement), Section 2 (Privacy Policy), Section 4 (Eligibility), Section 5 (License to Use Service), Section 7 (Assumption of Risk; Release), Section 8 (User Accuracy and Security), Section 13 (Third Party Websites), Section 14 (User Content), Section 15 (Prohibited Uses), Section 16 (Intellectual Property), Section 17 (Disclaimers; Limitation of Liability), Section 18 (Your Representations and Warranties), Section 19 (Indemnity by You), Section 20 (Dispute Resolution), Section 21 (Termination), Section 22 (Notices), Section 23.2 (Partial Invalidity), and Section 23 (General).

  1. Notices. All notices required or permitted to be given under this Agreement must be in writing.

22.1.    DonorJams shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to DonorJams. You agree that any notice received from DonorJams electronically satisfies any legal requirement that such notice be in writing.

22.2.    You bear the sole responsibility of ensuring that your email address on file with DonorJams is accurate and current, and notice to you shall be deemed effective upon the sending by DonorJams of an email to that address.

22.3.    You shall give any notice to DonorJams by means of email to kevin@donorjams.com.

  1. General.

23.1.    Entire Agreement. This Agreement constitutes the entire agreement between DonorJams and you concerning your use of the Service.

23.2.    Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.

23.3.    Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of DonorJams, or by the unilateral amendment of this Agreement by DonorJams along with the posting by DonorJams of that amended version.

23.4.    No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.

23.5.    Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of DonorJams. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.

23.6.    Independent Contractors. You and DonorJams are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.

23.7.    No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; DonorJams’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 13 (Third Party Websites), Section 17.4 (Application of Disclaimers).

23.8.    Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to DonorJams and DonorJams’s licensors and suppliers, and would therefore entitle DonorJams or DonorJams’s licensors or suppliers, as the case may be, to injunctive relief.

23.9.    Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.