Terms of Use

Last Updated: Jan 3, 2017

Summary

Welcome to the daymaker.com website (the “Daymaker Website”) operated by Daymaker, Inc. (“Daymaker”, “we”, or “us”). By using the CommuniGIft Website, you acknowledge that you (a “user”) have read and agree to be bound by the following Terms of Use (the “Terms”) and by our Privacy Policy, and by all technical specifications, rules of operation, and security procedures, and any other terms and conditions set forth by Daymaker from time to time on the Daymaker Website. You agree to be bound by such terms as may be revised and posted from time to time, without notice and with the date of last revision listed above. Nothing in these Terms may be construed to create or confer any rights on third party beneficiaries. If you do not agree to any of the terms and conditions set forth herein, you may not use the Daymaker Website. We may terminate the account of any users who violate these Terms and may remove any content they may have contributed to the Daymaker Website.

All users who access the Daymaker Website are referred to herein as “users.” Users who make donations through the Daymaker Website are referred to herein as “Donors.” Users who are experiencing significant economic hardship and set up profiles on the Daymaker Website in order to directly or indirectly receive donations are referred to herein as "Children in Need.” Human service organizations and qualified retailers that work with us to create profiles for Children in Need and other fundraisers on the Daymaker site, and to coordinate and distribute donations are referred to herein as “Partners”.

USERS Eligibility Any use or access of the site from users under 18 is strictly prohibited and a violation of these Terms. By using the Daymaker Website you represent and warrant that you are 18 years of age or older. If you choose to create an account with us, you may be asked to provide an email address and password. We may ask you to provide certain personal information, such as name, phone number, and email address, in creating your user account.

If you create an account with us, we may send a monthly newsletter, system messages pertaining to account information, and other communications to your email. You may opt out of the monthly newsletter at any time by clicking the unsubscribe link on the newsletter email.

Website Content and Intellectual Property All content on the Daymaker Website, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are our proprietary property with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission, except that, if you are eligible to use the Daymaker Website, you are granted a limited non-exclusive license to access and use the Site and to download or print a copy of any portion of the Site Content solely for your personal use, provided that you keep all copyright or other proprietary notices intact. You may not republish Site Content on any Internet, intranet or extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Daymaker, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by us at any time without notice and with or without cause.

User Information Privacy and security of our user information is of vital importance to us. We will not share or sell names of users without their consent.

Prohibited Conduct The services you are receiving from Daymaker are provided for personal use to “help people in need”. You agree to use the Daymaker Website only for purposes that are legal, proper and in accordance with these Terms and any applicable law, rules or regulations. You may not and represent and warrant that you will not:

use the Daymaker Website in any manner that could damage, disable, overburden, or impair the Daymaker Website, or interfere with any other party's use and enjoyment of the Daymaker Website; attempt to gain unauthorized access to the Daymaker Website or the computer systems or networks connected to the Daymaker Website through hacking, password mining or any other means; create user accounts by automated means or under false or fraudulent pretenses; transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature to or through the Daymaker Website; defame, abuse, harass, stalk, threaten, deceive or otherwise violate the legal rights (such as rights of privacy and publicity) of others or post any content that contains explicit or offensive descriptions of sexual matters; upload, post, email or transmit, or otherwise make available through the Daymaker Website any inappropriate, defamatory, infringing, obscene, or unlawful content; upload, post, email or transmit, or otherwise make available through the Daymaker Website any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such content; upload, post, email or transmit, or otherwise make available through the Daymaker Website any materials that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms; run Maillist, Listserv, or any form of auto-responder or “spam” on the Daymaker Website; use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Daymaker Website, including to engage in the practices of "screen scraping," "database scraping" or any other activity with the purpose of obtaining content user information or other information; download any file posted by another user that you know, or reasonably should know, cannot be legally distributed in such manner; impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of any materials; remove any copyright, trademark or other proprietary rights notices contained in or on the Daymaker Website; submit content that falsely expresses or implies that such content is sponsored or endorsed by the Daymaker, any of its Partners, affiliates or any third parties; operate, conduct, or promote, directly or indirectly, raffles, lotteries or other similar gaming activities, whether for charitable purposes or otherwise; victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; violate the personal safety of other Daymaker users at any time use the Daymaker Website for any illegal or unauthorized purpose; promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual. Appropriate User Content The Daymaker Website may allow you and other users to upload, post, and/or share information, text, data, photographs, audio, video, images, graphics, logos, symbols, documents, and other content (collectively, “User Content”). Daymaker permits you to use the Daymaker Website, the Tools, and the services provided by Daymaker subject to your acknowledging and agreeing to the following conditions:

We will seek to remove or edit, with or without notice to you, any User Content that we deem to be unlawful, obscene, or in violation of these Terms. We may, but are not obligated to, remove any other User Content that we determine in our sole discretion is fraudulent, threatening, libelous, defamatory, or otherwise objectionable, or infringe or violate any party’s intellectual property or other proprietary rights. Our right to block or remove any User Content, however, is not a warranty, endorsement, representation, or guarantee regarding such User Content.

The posting of User Content is solely the responsibility of each User. Daymaker does not assume responsibility for the accuracy of any information, ideas or opinions posted by Users and is not liable for any claims, damages or losses resulting from such information, ideas, or opinions.

You have sole responsibility for your User Content and the consequences of posting User Content on the Daymaker Website. You bear sole responsibility for the consequences of posting User Content.

You agree that the User Content will accurately describe the collection and intended use of donations made via the Daymaker Website.

You agree that User Content posted by you and other users of the Daymaker Website does not necessarily reflect the views of Daymaker.

You represent and warrant that your User Content does not infringe the copyright, trademark, publicity/privacy right, and/or other intellectual property or proprietary rights of any third party.

By posting, uploading or otherwise sharing your User Content on the Daymaker Website, you:

grant to Daymaker a perpetual, non-exclusive, royalty-free, license to use the User Content for all purposes in furtherance of its purpose and mission, including but not limited to: displaying on the Daymaker Website, creating derivative works based on the User Content, and/or other uses for promoting a birthday page; permit, but not require, Daymaker to identify you as the provider of such User Content; represent and warrant that you have all necessary rights to grant the foregoing permissions; grant to Daymaker and other users of the Daymaker Website the right to access, display, view, store, and/or download such User Content, and post or forward such User Content to others; and agree that Daymaker has no liability or responsibility for the storage or deletion of any User Content that you submit or post, or emails you send through the Daymaker Website. Registration Data; Account Security In consideration of your use of the Daymaker Website, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Daymaker Website (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete; (d) be fully responsible for all use of your account and for any actions that take place using your account and (e) notify us immediately if you become aware of unauthorized use of you Registration Data or other security breach of the Daymaker Website. We may refuse to grant you access if you select a login that (i) impersonates someone else, (ii) may be protected by trademark or proprietary rights law, or (iii) is vulgar, offensive, or otherwise inappropriate, as determined by us in our sole and absolute discretion. Any attempt to access restricted areas of the Daymaker Website without authorization is prohibited.

DONORS Donations through Daymaker Daymaker agrees to distribute donations to Partners. All such donations become the property of Daymaker Partners, are non-refundable by Daymaker and are made in the user’s sole discretion and at your sole risk based on your sole determination and evaluation of the fundraiser. You are solely responsible for determining the tax deductibility of any donation. Donations made through Daymaker are tax deductible. In-kind donation letters can be found in the User's profile. Daymaker is not liable or responsible for any errors or omissions caused by the Processor or failures on part of the Processor.

Daymaker Gift Cards and Donation Codes Daymaker offers various gift cards and donation codes as a service to our donor community. These promotions may list an expiration date. If there is an expiration date, at the time of expiration, any unredeemed value will be automatically distributed to Daymaker Partners at Daymaker’s sole discretion.

Anti-Credit Card Laundering Policy Only the authorized credit card holder may donate on the Daymaker Website. A third party may not use the Donor's card information or enter donations on behalf of the Donor. This practice is known as "credit card laundering" and violates Visa and MasterCard usage agreements. Daymaker may report any such abuses to the appropriate authorities. This restriction does not preclude the use of computer terminals or kiosks, with access to the Daymaker Website, for the authorized credit card holder to utilize in order to make a valid donation.

Daymaker’s Trademarks Daymaker grants Partners a limited, non-exclusive, royalty-free license to use the trademark “Daymaker®” solely for the purpose of promoting donations through the Daymaker Website. Daymaker reserves the right to monitor your use of its trademark “Daymaker®” and to require that you use it in conjunction with its quality control criteria or standards. Daymaker reserves the right to refuse or revoke permission to use the “Daymaker®” trademark any time, including in the event that you violate these Terms and/or engage in any activities which, in Daymaker’s sole discretion, may result in (a) physical or other harm to any person or entity, (b) violation of any third party rights, (c) violation of any law, regulation, or ordinance, (d) damage or diminishment of Daymaker’s reputation or goodwill, and/or (e) jeopardy to Daymaker’s public benefit corporation status. You may not incorporate any Daymaker trademark within any trademark, trade name, or domain name created by you.

ADDITIONAL LEGAL PROVISIONS Disclaimers We do not guarantee the accuracy of any User Content or content provided by third parties (“Third Party Content”). Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post on the Daymaker Website and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Daymaker Website or in connection with any User Content or Third Party Content. We are not responsible for the conduct, whether online or offline, of any User of the Site or Service. We cannot guarantee and do not promise any specific results (relating to donations or otherwise) from use of the Daymaker Website.

YOU UNDERSTAND THAT WE PROVIDE THE Daymaker WEBSITE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. Daymaker AND THE SOFTWARE, HARDWARE AND SERVICE PROVIDERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

The Daymaker Website may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Daymaker Website or combination thereof, including injury or damage to users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Internet and/or in connection with the Daymaker Website. Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone's use of the Daymaker Website, any User Content or Third Party Content posted on or through the Daymaker Website or transmitted to Users, or any interactions between users of the Site, whether online or offline.

We reserve the right to change any and all content contained in the Daymaker Website and any services offered through the Daymaker Website at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Daymaker.

Liability Limitation We expressly disclaim to the fullest extent permitted by law any and all responsibility and liability for the conduct of any charity, any Partner, or any Donor. Daymaker is not engaged in the provision of legal, tax, or other professional advice or services. If you are in need of such services, you should contact the appropriate licensed and qualified professional.

YOU AGREE THAT Daymaker NOR ANY OF ITS PARTNERS OR AFFILIATES WILL BE LIABLE TO YOU AND/OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO: THE Daymaker WEBSITE OR THE SERVICES PROVIDED BY Daymaker (AND YOUR USE OF, OR INABILITY TO USE, THE Daymaker WEBSITE OR SERVICES). ANY CLAIMS ARISING FROM THE Daymaker WEBSITE MUST BE BROUGHT WITHIN ONE YEAR OF THE DATE ON WHICH LIABILITY AROSE.

Hold Harmless and Indemnity Your use of the services provided by Daymaker is entirely at your own risk. You will hold harmless and indemnify us from and against any third-party claim arising from or in any way related to your use of the services provided by Daymaker, or the Daymaker Website, including without limitation any liability or expense arising from any claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.

User Disputes You are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users.

Links to Other Websites and Content The Daymaker Website may contain links to third party websites (“Linked Sites”). These links are provided only as a convenience. The inclusion of any link is not, and shall not be construed to imply, an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Daymaker of any information, materials, products, or services contained in or accessible through any Linked Site. In no event shall Daymaker be responsible for the information contained on any Linked Site or your use of or inability to use any Linked Site. Access and use of Linked Sites, including the information, material, products, and services on Linked Sites or available through Linked Sites, is solely at your own risk. Your access and use of the Linked Sites are governed by the Terms and privacy policies of such Linked Sites, and we encourage you to carefully review all such terms and policies. Although we take care to review the websites to which links are provided, we cannot guarantee the authenticity, or accuracy of any of the information contained therein.

Changes to Services, Website, and the Terms By using our services, you are agreeing to these Terms. Please read them carefully. You are responsible for regularly reviewing these Terms so that you will be apprised of any changes. Your continued use of the Daymaker Website following any changes to these Terms is your agreement to the changes and you are bound by the then-current version of these Terms. If any changes to these Terms Use are unacceptable to you, you must cease use of the Daymaker Website.

Notices Daymaker may but is not obligated to provide you with notices regarding the services provided by Daymaker, the Daymaker Website, or these Terms by regular mail, email, or postings to the Daymaker Website.

International Use The Daymaker Website is controlled and operated from within the United States. Daymaker makes no representation that the Daymaker Website is appropriate or available in locations outside the United States. Those who choose to access the Daymaker Website from other locations are responsible for compliance with applicable laws. International users must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence.

Terms and Termination These Terms apply to your use of the services provided by Daymaker and the Daymaker Website at all times. You may terminate under these Terms at any time by emailing [email protected], or your membership may be terminated by us at any time and for any reason. Upon termination or expiration of these Terms, your obligations and our proprietary rights, disclaimer of warranties, indemnities, limitations of liability and miscellaneous provisions survive, but your right to use the Daymaker Website immediately ceases.

Daymaker reserves the right, at its sole discretion, to immediately, with or without notice, suspend or terminate these Terms, and/or your access to all or a portion of the Daymaker Website and/or remove any registration information or User Content from the Daymaker Website, for any reason (including if you breach of any of the provisions of these Terms). Daymaker also reserves the right to change the Daymaker Website without notice to you, at any time.

Miscellaneous These Terms constitute the entire agreement between the parties with respect to all of the matters herein and supersedes all other agreements, understandings, and discussions of the parties. If any provision of these Terms shall be held to be unlawful, void, or unenforceable, then that provision shall be deemed severable from these Terms and will be deleted and replaced by a valid and enforceable provision which achieves, as far as possible, the same objectives as the severed provision was intended to achieve. The remaining provisions of these terms and conditions shall continue in full force and effect. No waiver or forbearance to seek a remedy by any party of any breach by any other party of any of its covenants, obligations and agreements hereunder shall be a waiver of any subsequent breach of any other covenant, obligation or agreement.

You may not assign, sublicense or otherwise transfer any right or obligation set forth herein without Daymaker’s prior written consent. Any purported assignment in violation of the preceding sentence is void and of no effect. These Terms are binding upon the parties' respective successors and permitted assigns. Except as otherwise expressly provided herein, all remedies provided for herein shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.

The Parties shall act as independent contractors, and nothing contained in these Terms shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as agents, partners, joint ventures, co-owners, employer/employee franchisor/franchisee, or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purposes whatsoever.

The failure of Daymaker to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms is held invalid, the remainder of these Terms shall continue in full force and effect. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

These Terms shall be governed by the laws of the District of Columbia without regard to its conflict of law provisions. Any disputes arising under or related in any way to these Terms or the Daymaker Website shall be litigated or otherwise heard in the state or federal courts located in the District of Columbia and the parties hereto hereby consent to the exclusive jurisdiction of such courts.

Daymaker may assign any of its rights or obligations under these Terms to another party without notice or consent for any reason.

Copyright Complaints If you believe that any material on the Daymaker Website infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent as set forth below:

Name of Agent Designated to Receive Notification of Claimed Infringement: Attn: Daymaker Staff

Full Address of Designated Agent to Which Notification should be Sent:

1875 Connecticut Ave NV

Washington DC, 20009

E-Mail Address of Designated Agent: [email protected]

To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, the registrations of users who are deemed to be infringers.

Contact For questions about these Terms please contact us at: [email protected]