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TO CONTINUE, read through this Agreement and click the "I Agree" button at the bottom of the page. Print a hard copy of this Agreement for your records. Minnesota Grantmakers Online Member and Subscriber Subscription Services
Agreement
MCF may be reached through the
following e-mail address: info@mcf.org.
1. Definitions.
In addition to terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
(a) “Application”
means the application submitted by Subscriber in conjunction with this
Agreement, containing information about Subscriber and the Subscription Plan
(as defined in Section 2(b)) elected by Subscriber.
(b)
“Authorized User” means a individual employee of Subscriber (or, if
Subscriber is an individual, then Subscriber) or a Member User (as defined in
Section 1(e)) who may access and use the Services on behalf of Subscriber.
(c) “Confidential Information” means any confidential and proprietary
information of MCF provided to Subscriber, including, without limitation, the
content and coding of the Services and Subscriber’s Password (as defined in
Section 1(f) below) and User Name (as defined in Section 1(h) below).
(d) “Member”
means a dues-paying member of MCF.
(e) “Member
User” means an employee of a Member whose job functions are significantly
related to performing grantmaking, fundraising and similar non-profit
activities on behalf of Member.
(f) “Password” means the password selected by Subscriber and approved by
MCF and associated with Subscriber’s User Name to allow access to and use of
the Services.
(g) “Search
Results” means the data and other information produced by the Services in
response to Subscriber’s search queries.
(h) “User
Name” means the unique user identification code selected by Subscriber and
approved by MCF that will identify Subscriber for Subscriber’s access to and
use of the Services.
2. APPLICATION
PROCEDURE; SUBSCRIPTION PLANS; User Name
and Password.
(a) Application. Subscriber must submit (or must have already
have submitted) an Application to MCF, either via electronic format or via
hardcopy, that shall be subject to acceptance by MCF at MCF’s sole
discretion. Before MCF will grant
Subscriber a license to access and use the Services as set forth in this
Agreement, and as a condition precedent to such license, MCF must accept and
approve Subscriber’s Application.
(b) Subscription
Plans. As part of Subscriber’s
Application, Subscriber shall elect to subscribe to the Services in an annual
subscription plan (each, a “Subscription
Plan”) for one (1) of the following types of Services: (i) “Minnesota Grantmakers Online Basic,”
which provides Subscriber access to and use of MCF’s database containing
information about various grantmaking foundations, organizations and other
entities, or (ii) “Minnesota Grantmakers
Online Deluxe,” which provides Subscriber access to and use of Minnesota
Grantmakers Online Basic and access to and use of an additional MCF database of
materials related to grants awarded by various foundations, organizations and
other entities. If Subscriber is a
Member, then Subscriber’s Subscription Plan will include access to and use of “MCF’s Online Membership Directory,”
which provides Subscriber access to and use of MCF’s database of certain
information of Members (and Members’ staffs) that is not available for access
or use by Subscribers that are not also Members.
(c) Single
and Multiple User Plans.
(i) Non-Members. For
non-Members, Subscriber’s Subscription Plan will be either a single-user plan,
pursuant to which only a single Authorized User from Subscriber may access and
use the Services (a “Single User Plan”),
or a multiple user plan, pursuant to which a specified number of Authorized
Users may access and use the Services (a “Multiple
User Plan”). If Subscriber elects a
Multiple User Plan, then Subscriber may elect one (1) of the following types of
Multiple User Plans: (i) a “Three User
Plan” (permitting up to three (3) Authorized Users to access and use the
Services); (ii) a “Six User Plan”
(permitting up to six (6) Authorized Users to access and use the Services); or
(iii) a “Nine User Plan” (permitting
up to nine (9) Authorized Users to access and use the Services). Only companies, organizations or other legal
entities may be Subscribers under Multiple User Plans; all Authorized Users
under Multiple User Plans must be employees of Subscriber.
(ii) Members. For Members, Subscriber may allow access
to and use of the Services by an unlimited number of Authorized Users, provided
that each Authorized User is Member User as that term is defined in Section
1(e).
(d) User
Name and Password. As part of
Subscriber’s Application, Subscriber shall select a User Name and Password, to
be approved by MCF, for access to and use of the Services. Subscriber’s User Name and Password shall be
required for any and all access to and use of the Services. Subscriber may access the Services only
using Subscriber’s User Name and Password.
Except for Authorized Users, Subscriber shall not allow any other person
or third party to access the Services using Subscriber’s User Name or Password. Subscribers under a Multiple User Plan (and
Subscribers that are Members) shall disclose their User Name and Password only
to Authorized Users.
(e) Authorized
Users. Subscriber shall not allow
access to or use of the Services by Authorized Users in excess of the number of
Authorized Users allowed under Subscriber’s Subscription Plan (if any such
limit is applicable under Subscriber’s Subscription Plan). Each employee of Subscriber who accesses or
uses the Services shall be deemed to be an Authorized User and shall remain a
designated Authorized User until (i) the employee’s employment with Subscriber
is terminated, or (ii) due a change to the employee’s job functions or
assignment, the employee shall not require further access to or use of the Services. In the event of either the termination of an
Authorized User’s employment or a change in the job functions of an Authorized
User as set forth in (i) and (ii) above, Subscriber may substitute another
employee as an Authorized User. (f) Unauthorized
Use. Subscriber shall remain solely
responsible for any and all unauthorized use of the Services occurring under
the Subscriber’s User Name and Password.
Subscriber shall promptly notify MCF if Subscriber becomes aware of or
suspects any breach of the terms and conditions of this Agreement by any
Authorized User or of the unauthorized use of the Services or Search Results by
any third party.
(g) Access
Logs. MCF reserves the right to
keep records of all access to the Services made by Subscriber. If such records demonstrate that Subscriber’s
Authorized Users have accessed or used the Services from a number of distinct
second-level domains in excess of the number of Authorized Users for
Subscriber’s Subscription Plan during any calendar month (if any such limit is
applicable under Subscriber’s Subscription Plan), then such records shall
constitute proof of Subscriber’s violation of Subscriber’s obligations pursuant
to this Agreement. If MCF is not
satisfied by Subscriber’s explanation of proof of unauthorized use of the
Services, then MCF shall have the right to invoice Subscriber (or charge
Subscriber’s credit card) for additional fees to account for Subscriber’s
excess access to or use of the Services, and Subscriber shall pay such
additional amounts. (For example, if
MCF has proof that four (4) users made use of Subscriber’s User Name and
Password in a calendar month and Subscriber has a Three User Plan, then MCF may
invoice or charge Subscriber and Subscriber shall pay for a Six User Plan,
retroactive to the beginning of the Initial Term or then-current Renewal Term,
as applicable.)
(h)
Lost or Forgotten User Names and Passwords. In the event Subscriber loses or forgets Subscriber’s User
Name or Password, MCF may, at MCF’s sole discretion, disclose Subscriber’s User
Name or Password to identified representatives of Subscriber under security
procedures determined by MCF, or MCF may provide Subscriber new a User Name and
Password. MCF shall not be responsible
for any delays or other difficulties associated with Subscriber’s inability to
access or use the Services that may result from lost or forgotten User Names or
Passwords.
3. Modifications OF ServiceS. MCF has the right to modify (in whole or in part), change,
restrict access to (including, without limitation, by limiting times of
availability or discontinuing use by certain Authorized Users) or eliminate
portions of the Services, the contents and information contained therein, and
any of MCF’s practices and policies (including, without limitation, accepted
forms of payment and security measures and policies), at any time and without
notice or liability to Subscriber for any reason. If the net result of any such modification, change, restriction
or elimination (taking into account any additional functionality or content
also made available) amounts to a loss of functionality of the Services or a
reduction in the content of the Services of greater than fifty percent (50%) of
the previous functionality or content during any consecutive six (6) months,
then Subscriber may terminate this Agreement upon written notice (in hardcopy
format only and not in electronic format) to MCF, in which case Subscriber
shall be entitled to a refund of the Subscription Fees (as defined in Section
4(a) below) actually paid by Subscriber to MCF (if any), prorated based on the
remaining portion of the Initial Term (as defined in Section 12(a) below), or
then-current Renewal Term (as defined in Section 12(a) below), as applicable.
4. FEES AND PAYMENT.
This Section 4 applies only to Subscribers that are not Members of
MCF. If Subscriber is a Member, then
Subscriber’s payment of applicable memberships dues constitutes Subscriber’s
payment of Subscription Fees. If
Subscriber is not a Member, then the following provisions apply:
(a) Annual
Subscription Fees. The annual
royalty payments for the license granted under each type of Subscription Plan
are set forth in Exhibit A (such royalty payments, for the applicable
Subscription Plan, the “Subscription
Fees”). Subscriber shall pay the
annual Subscription Fees in accordance with MCF’s subscription and billing
policies, as set forth in Exhibit B. No refunds of any such amounts paid to MCF shall be due at any
time for any reason (including, without limitation, Subscriber’s termination of
this Agreement), except otherwise expressly set forth in this Agreement.
(b) Changes
to Subscription Plan. Subject to
MCF’s approval, Subscriber may change or upgrade a Subscription Plan by
contacting MCF and submitting a revised Application or following such
procedures as may be required by MCF for such change or upgrade. Subscriber may, subject to completion of
required Application materials and MCF’s approval, upgrade Subscriber’s Subscription
Plan (for example, from Minnesota Grantmakers Online Basic to Minnesota
Grantmakers Online Deluxe) or change user plans (for example, from a Single
User Plan to a Multiple User Plan, or from a Three User Plan to a Six User
Plan). Subscriber shall be charged for
and shall pay the entire difference between the Subscription Plan for which
Subscriber initially paid and the upgraded Subscription Plan.
(c) Increases
in Subscription Fees. By providing
Subscriber at least sixty (60) days’ written notice prior to the end of the
Initial Term or then-current Renewal Term, MCF may increase the Subscription
Fees for the upcoming Renewal Term. MCF
may provide Subscriber notice of such an increase by email or by posting on
MCF’s web site, or by other reasonable means.
(d) Late
Fees. Amounts not paid when due
shall be subject to a late charge of one and one-half percent (1.5%) per month
(eighteen percent (18%) per year) or any applicable legal maximum, whichever is
less. Late charges are intended as
reasonable estimates of the amounts necessary to compensate MCF for costs and
losses associated with delays in payment, and not as penalties.
5. licenseS.
(a) Right
to Use and Access Services. Subject
to the terms and conditions of this Agreement, MCF grants Subscriber, during
the Term, a limited, non-exclusive, non-transferable (except as set forth in
Section 13(a) below) license to allow Subscriber’s Authorized Users to access
and use the Services to search the applicable database or databases and produce
Search Results, solely for Subscriber’s not-for-profit, internal purposes
related to the grantseeking, grantmaking, fundraising and similar non-profit
activities of Subscriber.
(b) Right
to Reproduce Search Results.
Subject to the terms and conditions of this Agreement, MCF grants
Subscriber, during the Term of this Agreement, a limited, non-exclusive,
non-transferable (except as set forth in Section 13(a) below) license to allow
Subscriber’s Authorized Users to copy and reproduce (solely as intermediate
steps necessary to) print in hardcopy format one (1) copy of each set of Search
Results produced by the Services, solely for Subscriber’s not-for-profit,
internal purposes related to the grantseeking, grantmaking, fundraising and
similar non-profit activities of Subscriber.
6. LIMITATIONS ON USE.
(a) Restrictions. Subscriber acknowledges that
Subscriber’s rights to access and use the Services and Search Results are
limited to the scope of the licenses granted under Section 5 and that this
Agreement does not permit Subscriber to otherwise use the Services or Search
Results. Subscriber acknowledges that
the Services and Search Results, and their respective content, structure,
organization and source code, as applicable, constitute valuable property (including,
without limitation, intellectual property in the form of copyrights and trade
secrets) of MCF and its licensors and suppliers. Accordingly, except as expressly provided in Section 5,
Subscriber shall not, shall not attempt to, and shall not permit any Authorized
User or third party to: (i) allow any access to or use of the Services by any
individual (including without limitation officers, employees and agents of
Subscriber) other than Authorized Users or by a number of individuals in excess
of the number of Authorized Users for Subscriber’s Subscription Plan (if any
such limit is applicable under Subscriber’s Subscription Plan); (ii) modify,
adapt, alter, translate, transmit, port or create derivative works of or from
the Services or Search Results; (iii) sublicense, distribute, sell, use for
service bureau use, lease, rent, loan, or otherwise transfer to any third party
any or all of the following, in whole or in part: (A) Subscriber’s User Name
and Password, (B) access to or use of the Services, and (C) any and all Search
Results; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to
derive the source code for or any other proprietary information or trade
secrets from the Services; (v) remove, alter, or obscure any proprietary
notices (including, without limitation, any copyright or trademark notices) of
MCF or its licensors and suppliers from either (or both) the Services or Search
Results; or (vi) otherwise access, use, reproduce, display, copy or use the
Services or Search Results for the benefit of any person or entity other than
Subscriber. Except as provided in
Section 5 above, MCF grants no rights or licenses to Subscriber, including by
implication, estoppel, or otherwise, in or to the Services, Search Results or
any intellectual property rights therein.
Any and all rights not expressly granted to Subscriber hereunder are
reserved by MCF.
(b) Proprietary
Notices. Subscriber must reproduce
and include on any copies of Search Results any and all copyright notices and
other proprietary notices that appear on the original Search Results.
(c) Affiliates. The rights granted in this Agreement are
limited solely to the Subscriber and do not extend to any subsidiary, parent,
related or affiliated organizations, or to any third party.
7. ownership.
(a) Ownership. The Services, Search Results, User Name,
Password and any and all modifications, bug fixes, updates and derivative works
thereof or thereto, and all existing and future worldwide intellectual property
rights therein, are and shall remain the exclusive property of MCF or its
licensors or suppliers, as applicable.
Except for the limited rights granted under Section 5, Subscriber shall
have no right, title, or interest in or to the Services, Search Results, User Name
or Password.
(b) Trademark
Information. The “Minnesota
Grantmakers Online,” “Minnesota Grantmakers Online Basic” and “Minnesota Grantmakers Online Deluxe” service marks and other MCF marks and logos are and shall remain
service marks and trademarks of MCF.
Other trademarks, service marks, and logos used in the Services or the
MCF web site are the trademarks, service marks, or logos of their respective
owners, and nothing in this Agreement shall be deemed to grant Subscriber and
rights or interests therein.
8. CONFIDENTIALITY.
(a) Protection. Subscriber shall not use any Confidential
Information for any purpose other than as permitted by Section 5, and
Subscriber shall disclose Confidential Information only to the employees or
agents of Subscriber who have a need to know such Confidential Information for
purposes of this Agreement and who are under a duty of confidentiality no less
restrictive than Subscriber’s duty hereunder.
Notwithstanding and without limiting the foregoing, Subscriber shall disclose
Subscriber’s User Name and Password only to Subscriber’s Authorized Users. Subscriber shall protect all Confidential
Information from unauthorized use, access, or disclosure in the same manner as
Subscriber protects its own confidential or proprietary information of a
similar nature (and with no less than reasonable care).
(b) Exclusions
and Exceptions. Subscriber’s obligations under Section 8(a)
with respect to any Confidential Information will terminate if and when
Subscriber can document that such information:
(i) was already lawfully known to Subscriber at the time of disclosure
by MCF; (ii) is disclosed to Subscriber by a third party who had the right to
make such disclosure without any confidentiality restrictions; (iii) is, or
through no fault of Subscriber has become, generally available to the public;
or (iv) is independently developed by Subscriber without access to, or use of,
the Confidential Information. In
addition, Subscriber shall be allowed to
disclose Confidential Information to the extent that such disclosure is (A) approved
in writing by MCF; (B) necessary for Subscriber to enforce its rights under
this Agreement in connection with a legal proceeding; or (C) required by
law or by the order or a court of similar judicial or administrative body, provided
that Subscriber notifies MCF of such required disclosure promptly and in
writing and cooperates with MCF, at MCF’s reasonable request and expense, in
any lawful action to contest or limit the scope of such required disclosure.
(c) Return of
Confidential Information. Immediately
upon the written request of MCF or the expiration or termination of this
Agreement (whichever comes first), Subscriber shall permanently erase all
electronic copies of any Confidential Information in Subscriber’s control or
possession. At MCF’s request,
Subscriber shall certify in writing that it has fully complied with its
obligations under this Section 8(c).
9. DISCLAIMER OF WARRANTY. The
Services AND all search results ARE provided “As Is,” and MCF and its suppliers
and licensors expressly disclaim any and all warranties and representations of
any kind with regard to any subject matter of this Agreement, including,
without limitation, any warranty of non-infringement, title, fitness for a
particular purpose, functionality or merchantability, whether express, implied
or statutory. MCF DOES NOT WARRANT THAT
ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. No oral or written information or advice
given by MCF, its employees, OFFICERS or agents SHALL create any new warranties. The
entire risk as to the quality, accuracy, adequacy, completeness, currency,
correctness or validity of any information or material provided by or through the ServiceS (INCLUDING, WITHOUT
LIMITATION, ANY SEARCH RESULTS) rests with the Subscriber. MCF has no control over the content of the
World Wide Web sites or web pages that may be accessed from the MCF Web Site or
the Services Web Site through hypertext links, and mcf is not responsible for
the content of such web sites or web pages.
such links are provided for subscriber’s convenience only and subscriber
accesses such WEB sites and web pages solely at subscriber’s risk.
10. Indemnification.
(a) Indemnification
by MCF. MCF shall indemnify and
defend Subscriber from and against damages, liabilities, losses, fees,
expenses, penalties and costs (including reasonable attorneys’ fees, costs and
disbursements) arising as a direct result of all claims, suits or proceedings
brought by any third party to the extent any such claim, suit or proceeding
alleges that the Services (excluding any Search Results), when used in
accordance with this Agreement during the Term, infringe any U.S. copyrights or
misappropriate any trade secrets (any such claim, suit or proceeding, a “Claim”). If the Services (or any portion thereof) become, or in MCF’s
opinion are likely to become, the subject of a Claim, then MCF may, at MCF’s
option and expense, either: (i) procure
for Subscriber the right to continue exercising the rights licensed to
Subscriber in this Agreement, (ii) replace or modify the Services (or portion
thereof) so that the Services (or such portion thereof) become non-infringing,
or (iii) terminate this Agreement by written notice to Subscriber and refund
all Subscription Fees actually paid by Subscriber (if any), on a prorated
basis. Notwithstanding the foregoing,
MCF shall have no obligation under this Agreement or otherwise with respect to
any Claim based upon: (A) any unauthorized
use, reproduction, or distribution of the Services or Search Results, (B) any
access, use, reproduction, or distribution of the Services or any Search
Results after MCF provides Subscriber with written notice that such access,
use, reproduction or distribution has been prohibited or superceded or may be
infringing on a third party’s intellectual property rights, or (C) any
modification of the Services or Search Results by any person other than MCF or
its licensors, suppliers, authorized agents or contractors. This Section 10(a) states MCF’s entire
liability and Subscriber’s sole and exclusive remedy for infringement claims
and actions.
(b) Indemnification
by Subscriber. Subscriber shall
indemnify, defend and hold harmless MCF and its directors, officers and
employees from and against any and all damages, liabilities, losses, fees,
expenses, penalties and costs (including reasonable attorneys’ fees, costs and
disbursements) arising as a result of or otherwise related to all claims, suits
or proceedings to the extent any such claim, suit or proceeding arises from or
relates to any acts or omissions on the part of Subscriber or any Authorized
User (or any person using Subscriber’s User Name or Password) in connection
with the Services or any information or data related thereto not expressly
covered by MCF’s obligations of indemnification as set forth in Section 10(a).
(c) Indemnification
Procedures. As a condition of the
foregoing indemnification obligations, the indemnified party shall (i) promptly
notify the indemnifying party of any indemnifiable Claim; (ii) give the indemnifying
party sole control over the defense and settlement of such Claim; and
(iii) provide reasonable cooperation and assistance to the indemnifying
party in conducting its defense, at the indemnifying party’s expense; provided,
however, that the indemnified party may participate in the defense at its
expense and the indemnified party’s advance written approval is required for
any settlement that (A) imposes any obligation of payment on the indemnified
party, (B) does not unconditionally release indemnified party, or (C) any
binding admission made on behalf of the indemnified party.
11. LIMITATIONS ON LIABILITY
AND REMEDIES. IN NO EVENT
SHALL MCF BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR
INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS
AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR
RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY
(INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), EVEN IF MCF HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. MCF’S
TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES
AND ANY SEARCH RESULTS (INCLUDING, WITHOUT LIMITATION, MCF’S INDEMNIFICATION
OBLIGATIONS AS SET FORTH IN SECTION 10), WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT OF SUBSCRIPTION FEES (OR, IN THE
CASE OF MEMBERS, THE MEMBERSHIP FEES) ACTUALLY PAID TO MCF BY SUBSCRIBER DURING
THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. Subscriber acknowledges that the
Subscription Fees (or, in the case of Members, fees attributable to membership)
reflect the allocation of risk set forth in this Agreement and that MCF would
not enter into this Agreement without these limitations on MCF’s liability.
12. Term and termination.
(a) Initial
and Renewal Terms. Unless earlier
terminated as provided in this Agreement, the initial term of this Agreement
shall begin upon Subscriber’s acceptance of these terms and conditions and
completion of the Application process (as determined by the date on which MCF
notifies Subscriber that Subscriber’s account is active) and shall conclude
after a period of one (1) year therefrom (the “Initial Term”). Subject to
the terms and conditions of this Agreement, including without limitation
Subscriber’s continued payment of all Subscription Fees (including, without
limitation, any increased Subscription Fees as set forth in Section 4(c)) (or,
in the case of Members, fees attributable to continued membership, if any),
this Agreement shall automatically be extended for additional terms of one (1)
year each (each, a “Renewal Term”)
unless either party gives the other written notice of non-renewal at least
fifteen (15) days before the expiration of the Initial Term or then-current
Renewal Term. “Term” means, collectively, the Initial Term and any applicable
Renewal Terms.
(b) Termination
for Cause. Either party may
terminate this Agreement immediately if the other party is in material breach
of any term or condition of this Agreement (including without limitation, in
the case of Subscriber, any failure to make any payments when due) and fails to
cure such material breach within thirty (30) days of notice from the
non-breaching party of such breach.
Notwithstanding the foregoing, MCF may terminate this Agreement
immediately upon notice to Subscriber for Subscriber’s breach of Sections 5, 6,
7 or 8.
(c) Termination for Convenience. Notwithstanding anything herein to the
contrary, MCF may, at MCF’s sole discretion, terminate this Agreement for any
reason upon thirty (30) days prior written notice to Subscriber, subject to a
pro rata refund of the Subscription Fees actually paid by Subscriber (if any)
for the remaining portion of the Initial Term or then-current Renewal Term, as
applicable.
(d) Termination of Membership. For Members, this Agreement
shall terminate upon the expiration or termination of Member’s status as a
Member of MCF.
(e) Effects of Termination. In the event of the termination or
expiration of this Agreement for any reason, Sections 1, 4, 7, 8, 9, 10, 11,
12(e) and 13 shall survive; provided, however, that if
termination is for Subscriber’s (or any Authorized User’s) breach of this
Agreement, then Section 10(a) shall not survive. Promptly upon any expiration of termination of this Agreement,
Subscriber shall immediately cease all use of the Services, any Search Results
and all information related thereto.
Except as expressly provided in Sections 3, 10(a)(iii) and 12(c), in no
event shall Subscriber be entitled to a refund (in whole or in part) of any
Subscription Fees or other amounts paid by Subscriber upon any expiration or
termination of this Agreement.
13. General.
(a)
Assignment. Subscriber
shall not assign, delegate or transfer (including, without limitation, by
operation of law) any of Subscriber’s rights or duties under this Agreement
without the express prior written consent of MCF, and any purported or
attempted assignment, delegation or transfer in violation of the foregoing
shall be null and void and without force or effect.
(b)
Compliance with Laws.
Subscriber shall, at all times, comply with all federal, state and local
laws with respect to Subscriber’s use of the Services.
(c)
Dispute Resolution; Governing Law; Forum. This Agreement, and all other aspects of Subscriber’s access
to and use of the Services, shall be governed by and construed in accordance
with the laws of the State of Minnesota, without regard to any conflict of laws
rules. All claims and disputes arising
out of or related to this Agreement or the Services or use of the Services
shall be submitted to and resolved by binding arbitration, with a single
arbitrator, pursuant to the rules and regulations and under the auspices of the
American Arbitration Association. Any
arbitration proceeding shall take place in the City of Minneapolis,
Minnesota. Any award from any
arbitration conducted pursuant to this Section 13(c) may be enforced in any
court of competent jurisdiction, and each party to this Agreement irrevocably
submits to the jurisdiction of the state and federal courts sitting in the City
of Minneapolis, Minnesota. Each party
(and each Authorized User) hereby waives any jurisdictional, venue, or inconvenient
forum objections to such courts. In any
arbitration proceeding or action to enforce the arbitrator's award, the
prevailing party shall be entitled to costs and attorneys’ fees.
(d) Force
Majeure. Except for a party’s
obligation to pay any Subscription Fees or other amounts due, neither party is
liable for failure to perform solely caused by unforeseeable force majeure
circumstances beyond such party’s control (“Force Majeure”). The party
experiencing the Force Majeure circumstances must notify the other party of the
delay as soon as reasonably possible, and cooperate in minimizing the impact of
such Force Majeure. If such
circumstances occur, the injured party may elect to terminate this Agreement in
whole or in part upon written notice.
(e) Waivers. The failure of either party to exercise any
right may not be construed to be a waiver unless agreed upon in writing in a
hardcopy format signed by both parties.
A waiver in any one instance will not constitute an amendment to this
Agreement or indicate any continued waiver of such right(s) on any other
occasion.
(f) Modifications
or Amendments. No modifications or
amendments may be made to this Agreement unless in hardcopy writing and signed
by MCF.
(g) No
Oral Agreements; Other Agreements.
This Agreement supersedes all prior oral communications and agreements
of the parties with respect to the Services and content hereof. Each party hereby acknowledges and agrees
that the parties may have entered into or may enter into other agreements that
relate to the Services and content hereof, and, to the extent possible, this
Agreement shall be interpreted to avoid any ambiguity, conflict or
inconsistency with such other agreements.
Sections 5, 6, 7, 8, 9, 10 11 and 13(g) shall control in the event of
any ambiguity, inconsistency or conflict with any other agreements between the
parties.
Exhibit A Subscription Plans and Subscription Fees
1. Annual Subscription
Fees. Subject to
the terms and conditions of the Agreement, unless Subscriber is a Member,
Subscriber shall pay the following annual Subscription Fees for the applicable
Subscription Plan elected by Subscriber:
Exhibit B Subscription and Billing Procedures and Policies
The following Billing Procedures
and Policies do not apply to Subscribers that are dues-paying Members of MCF.
1. Billing POLICIES. (a) Annual Subscription – Credit Card Payment. If Subscriber elects to pay the annual
Subscription Fee by credit card, then Subscriber agrees to have Subscriber’s
credit card billed annually, in advance, for the applicable Subscription Fee
for the Initial Term and each applicable Renewal Term. The Subscription Fees shall be billed to
Subscriber’s credit card each year on or about the anniversary of the
Subscription Plan start date. (By way
of example only: if Subscriber’s Initial Term begins on March 15, then
Subscriber’s credit card shall be billed on or about that date at the
then-current annual Subscription Fee for the applicable Subscription Plan for
the period between that date and March 14 of the following year. Unless either party provides the other
notice of termination of Subscriber’s Subscription Plan pursuant to
Section 12(a) of the Agreement or unless the Agreement is otherwise
terminated, Subscriber’s credit card will be billed once again at the
then-applicable rate on or about March 15 of the following year for the Renewal
Term.) The process shall repeat until
the Agreement is terminated in accordance with its terms. Subscriber shall receive notices approximately
sixty (60) days and approximately thirty (30) days prior to the end of the
then-current Initial Term or Renewal Term (as applicable) informing Subscriber
that Subscriber’s credit card shall be automatically charged for the upcoming
Renewal Term on the anniversary date of the Subscription Plan start date. (b) Annual
Subscription – Check Payment. If
Subscriber elects to pay the annual Subscription Fee by check, then Subscriber
shall receive a renewal notice and invoice approximately sixty (60) days prior
to the end of the then-current Initial Term or Renewal Term. Receipt of Subscriber’s payment of the
Subscription Fee for the upcoming Renewal Term shall be required before the end
the then-current Initial Term or Renewal Term, as applicable, or the
Subscription Plan and this Agreement, including Subscriber’s access to and use
of the Services, shall terminate at MCF’s discretion.
2. Online
Credit Card Payment Process.
(a) Credit
Card Authorization. If Subscriber
elects to complete the Application process online using a credit card, then,
after (i) Subscriber has completed the Application process and provided MCF all
required registration data, (ii) Subscriber has indicated that Subscriber has
accepted the terms and conditions of this Agreement, and (iii) Subscriber’s
credit card payment is authorized, Subscriber shall be linked to a “Welcome”
page that will confirm Subscriber’s successful subscription. In addition, MCF shall send Subscriber an
e-mail confirmation of Subscriber’s subscription to the Services. The e-mail notice will serve as Subscriber’s
receipt of Subscriber’s subscription to the Services.
(b) Secure
Payment Processing. MCF utilizes a
third-party online credit card authorization service that uses secure server
encryption software to protect Subscriber’s credit card transaction. MCF shall have no responsibility or
liability for any inaccuracies or errors with respect to the authorization of
Subscriber’s credit card.
(c)
Unsuccessful authorization. If MCF cannot obtain satisfactory
authorization and validation of Subscriber’s credit card through MCF’s third
party vendor, then MCF shall have no obligation to accept Subscriber’s
Application and MCF may reject Subscriber’s Application without liability to
Subscriber and without any obligation to accept any subsequent Application from
Subscriber.
3. Payment by Fax or Mail. In lieu of subscribing
online with a credit card, Subscriber may complete the Application process and
provide payment information in one (1) of the following methods:
(a) Fax
or Mail Subscription with Credit Card. If Subscriber elects to complete the
Application process with a credit card using a print subscription form
(available at www.mcf.org/mngrants/UsrApp&Maintenance/ subscription.asp)
sent to MCF via fax or mail, then, after (i) Subscriber has completed the
Application process and provided MCF all required registration data, (ii)
Subscriber has indicated that Subscriber has accepted the terms and conditions
of this Agreement, and (iii) Subscriber’s credit card payment is authorized,
MCF shall send Subscriber an e-mail confirmation of Subscriber’s subscription
to the Services. The e-mail notice will
serve as Subscriber’s receipt of Subscriber’s subscription to the Services.
(b) Mail
Subscription with Check. If Subscriber elects to complete the Application
process with a check via fax or mail, then Subscriber shall provide MCF the
required information on a print subscription form (available at
www.mcf.org/mngrants/UsrApp&Maintenance/subscription.asp) and shall mail
the completed form with a check for the appropriate Subscription Fee to MCF at
the following address: Minnesota Council on Foundations, 15 S. Fifth Street,
Suite 600, Minneapolis, MN 55402-1570.
After (i) Subscriber has completed the Application process and provided
MCF all required registration data and (ii) Subscriber has indicated that
Subscriber has accepted the terms and conditions of this Agreement, MCF shall
send Subscriber an e-mail confirmation of Subscriber’s subscription to the
Services. The e-mail notice will serve
as Subscriber’s receipt of Subscriber’s subscription to the Services.
4. Account Inquiries. Before MCF will respond to any inquiries
regarding Subscriber’s billing or account information, Subscriber shall be
required to provide MCF confirmation of Subscriber’s User Name and Password. Subscriber acknowledges and agrees that each
Authorized User will be able to access billing or account information of
Subscriber, and Subscriber acknowledges and agrees that under no circumstances
shall MCF be liable to such Subscriber for any harm, damage, embarrassment or
other circumstances arising about of or as a result of such access by an
Authorized User.
5. Changes to account information. If Subscriber desires to
change any account information, including, without limitation, contact
information or credit card billing information, then Subscriber shall submit
any such actual or proposed change in such account information immediately to
MCF, using the e-mail address or telephone numbers provided below.
6. CONTACT
INFORMATION. With
respect to billing information, questions about the Application process, to
inform MCF that Subscriber has not received an email confirmation of a
successfully-completed Application, or for other payment or technical
information and product support, Subscriber may contact MCF Monday through
Friday (excluding MCF-recognized holidays), between 8:00 a.m. and 4:30 p.m.,
Central Time, at the following: (a) E-mail
- info@mcf.org
(b) Telephone
– 612/338-1989.
(c) Fax
– 612/337-5089.
(d) Mail
- Send all written correspondence to: Minnesota Council on Foundations, 100
Portland Avenue S., Suite 225, Minneapolis, MN 55401-2575.
When you
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