Terms of Service

Effective: December 5, 2018

Thanks for your interest in using Listen4Good’s (L4G) services (“Services”). Please read these Terms of Service (“Terms”) carefully as they constitute a legally binding agreement between you and L4G concerning the provision of Services to you, including your access to and use of any website through which the Services are made available to you. You indicate your agreement to these Terms by clicking on a button indicating your acceptance of them, or by accessing or using the Services.

In these Terms, “you” or “Client” refers to the entity or individual entering into these Terms with L4G, and “Listen4Good” or “L4G” refers to the capacity-building initiative developed by Fund for Shared Insight, of which Rockefeller Philanthropy Advisors is the fiscal sponsor.

1. SERVICES

1.1. Provision of Services.L4G will provide the Services to you in accordance with these Terms.

1.2. Changes to Services.Where L4G provides its Services under the software-as-a-service model, L4G continually seeks to improve and update those Services. You agree that L4G may modify and improve functionality from such Services at any time without prior notice.

2. SUBSCRIPTIONS

2.1. Duration of Subscriptions.Access to the Services are provided as a subscription. As of the effective date of these Terms, L4G provides its subscriptions as free subscriptions. Free subscriptions are for an indefinite period. If you are required to pay a fee for the Services, that subscription is for a limited duration, as described to you in connection with your purchase of the Services.

2.2. Right to Use.Subject to these Terms, L4G grants you a non-exclusive, non-transferable worldwide right to access and use the Services during the period of your subscription.

2.3. Ancillary Materials.L4G may make files and templates available, via our website as part of the Services (“Files”). L4G grants you a non-sublicensable, non-transferable, non-exclusive, limited license for you to use the Files, but solely as necessary to use the Services and in accordance with these Terms. The foregoing license will terminate upon termination of your right to use the applicable Services. All of L4G’s rights not expressly granted by the foregoing license are hereby retained.

3. FEES AND PAYMENT

3.1. Fees.L4G currently makes its Services available without charge. However, L4G may decide to charge for the Services in the future. In such an event, if you purchase a Service for a fee, you agree to pay L4G all applicable fees for that Service in accordance with the payment terms presented to you when purchasing that Service. Except as otherwise agreed or required by applicable law, payment obligations are non-cancelable and fees paid are non-refundable.

4. USER OBLIGATIONS

4.1. Client Responsibilities.

• Responsibility for Authorized Users.“Authorized Users” means your employees, agents, independent contractors and other individual authorized by you to access and use the Services. You are responsible for ensuring that your Authorized Users comply with these Terms and interact the Services in a manner consistent with your obligations under these Terms. You, and not L4G, are responsible for the acts and omissions of your Authorized Users (including breaches of these Terms caused by your Authorized Users) and any activity occurring in your L4G account.
• Account Security.You are responsible for protecting the confidentiality and security of your L4G account access credentials used by you and your Authorized Users to access the Services. You will use reasonable efforts to prevent unauthorized use of the Services. If you become aware of any unauthorized use of the Services or access to your Service accounts, you will terminate such use (if practicable) and promptly notify L4G.
• Responsibility for Client Data.“Client Data” means all data that is provided to L4G by, or on behalf of, you through use of the Services (including when sharing information with L4G as part of receiving coaching and consulting Services), and any data that third parties submit to you through the Services. Client Data includes any data contained in any SurveyMonkey account you use in conjunction with the Services and specifically authorize the Services to access (whether that SurveyMonkey account is provided through L4G or procured separately by you) (“SurveyMonkey Account”). You are responsible for any actions you take with respect to Client Data, including uploading it to the Services or using the Services to share or otherwise make available such Client Data to third parties. You are responsible for ensuring that you have all the rights and permissions needed to use Client Data in connection with the Services.
• Accuracy of Your Details.L4G sometimes sends notices to you using the email address registered with your L4G account. You will keep your contact and other details associated with your L4G account current and accurate. You will notify L4G in writing (such as by making changes via your L4G account’s profile page) of any changes to such details.

4.2. Client Restrictions.

• The Services are not intended for use by individuals who are under the age of 18. If you are under the age of 18, or under the age required in your jurisdiction for you to have the capacity to contract (“Minors”), you may not use the Services. You may not permit a Minor to access the Services.
• Prohibited Persons.You represent and warrant that you are not barred by any applicable laws from being supplied with the Services. You may not purchase or use the Services in any country that is subject to an embargo by the United States applicable to the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals. You will ensure that: (a) your Authorized Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on the lists specified above.

4.3. Acceptable Uses.You are responsible for your conduct, Client Data, and communications with others in connection with your use of the Services. You will comply with the following requirements in connection with your use of the Services:

• You may not purchase, use, or access the Services for the purpose of building or improving a competitive product or service, or for any other competitive purposes.
• You may not use any method (whether manual or automated) to extract or scrape data from L4G’s Services.
• You may not use automated methods, including bots, to create L4G accounts.
• You may not sell, resell, or lease any Service without L4G’s written consent.
• You may not reverse engineer any Service, nor assist anyone else to do so, to the extent this prohibition is permitted by law.
• You may not circumvent or attempt to circumvent any limitations that L4G imposes on your account in accordance with these Terms (such as account suspensions for abuse).
• You may not attempt to access the Services other than through the interfaces and instructions that we provide to you.
• You may not probe, scan, or test for vulnerabilities in the Services or of any L4G system or network, without L4G’s prior written consent.
• You may not use the Services to store or transmit any code, agents, software, or links to such materials that are intended to do harm, such as viruses, worms, Trojan horses, and malware.
• You may not use the services for any unlawful purposes or unlawful activities, including storing or transmitting infringing, defamatory, or otherwise unlawful or tortious material.
• You may not engage in abusive or excessive use of the Services, which is use significantly in excess of average use patterns that materially adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. 

4.4. Suspension of Services.L4G may limit or suspend the Services to perform maintenance, or if we reasonably believe that the Services are being used by you or your Authorized Users in violation of applicable law or in breach of these Terms.

5. INTELLECTUAL PROPERTY & CLIENT DATA

5.1. Definition.“Intellectual Property Rights”means current and future worldwide rights under patent, copyright, design rights, trade secret, trademark, moral rights, and other similar rights, whether registered or unregistered.

5.2. Client IP.As between the parties, you retain ownership of all Intellectual Property Rights in the Client Data. You grant L4G and its affiliates a worldwide, royalty-free, non-exclusive license to use, host, copy, transmit, modify, display, and distribute Client Data for the limited purposes of exercising L4G’s rights and fulfilling L4G’s obligations under these Terms and applicable law, which includes the purposes of L4G providing, maintaining, and improving the Services, conducting research, and providing you with advice, coaching, and consulting services about the surveys and other content you create or collect via the Services.

5.3. Survey Data. As between you and L4G, you own all Intellectual Property Rights in the survey responses you collect through your SurveyMonkey Account (“Survey Data”). You grant L4G and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive limited license to use, copy, transmit, modify, adapt, display and distribute Survey Data for L4G’s own research and learning purposes, provided that any disclosure of Survey Data to a third party (who does not provide services to L4G under a duty or obligation of confidentiality) will not reveal your identity without your consent, nor reveal any personal information of survey respondents.

5.3. L4G IP.As between the parties, L4G retains ownership of the Services (including the Files) and all related Intellectual Property Rights. No licenses or rights are granted to you by L4G, other than as expressly provided for in these Terms. These Terms do not grant you any right to use L4G’s trademarks or other brand elements.

5.4. Client Feedback. If you provide L4G with feedback about the Services, L4G may use that feedback and incorporate it into L4G’s products and services without any obligation to you.

5.5. Content Review.You acknowledge that, in order to ensure compliance with L4G’s legal obligations, L4G may be required to review certain content submitted to the Services to determine whether it is illegal or whether it complies with these Terms (such as when unlawful content is reported to us). You agree that we may perform such review and take action to mitigate any illegal or non-compliant activity, including modifying, blocking, or deleting content we believe to be illegal or non-compliant. However, L4G has no obligation under these Terms to monitor or review any content submitted to the Services.

6. THIRD PARTY SERVICES

6.1. Your SurveyMonkey Account.If your SurveyMonkey Account was provided via L4G, you agree to use that account in compliance with the SurveyMonkey Acceptable Uses Policy located at https://www.surveymonkey.com/mp/legal/acceptable-uses-policy/. L4G may access your SurveyMonkey Account and Client Data contained in it as part of providing you with the Services and exercising our rights under Section 5 (Intellectual Property & Client Data). 

6.2. Third Party Services.The Services may contain links to third party websites or services (such as third party integrations, like your SurveyMonkey Account, and other third party-branded services) (“Third Party Services”). Such links are not necessarily an endorsement of those Third Party Services. L4G does not control Third Party Services, and your use of them may be subject to different terms and privacy practices. L4G is not responsible for the availability or accuracy of any Third Party Services, or anything that is made available through them.

7. SECURITY & PRIVACY

7.1. Security.L4G has implemented and will maintain appropriate technical, physical, and organizational measures designed to protect Client Data against unauthorized or unlawful processing, and against accidental loss of, or damage to, such Client Data.

7.2. Client Privacy Obligations.You warrant and represent that you are entitled to transfer Client Data to L4G for the purposes of L4G processing any personal information contained in the Client Data in accordance with these Terms. You will ensure that any relevant individuals to which such personal information relates (“data subjects”) have been informed of, and have given their consent to, such processing as required by applicable data protection laws.

8. TERM AND TERMINATION

8.1. Term.These Terms start on the date you first accept them and continue until the date on which all subscriptions and Services under these Terms have terminated.

8.2.Termination for Cause.A party may terminate these Terms or a subscription for cause upon written notice: (a) if 30 days have elapsed following written notice to the other party of its material breach of these Terms and such breach remains uncured at the end of such 30 day period; or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, liquidation, or assignment for the benefit of creditors. Use of the Services in violation of applicable law is deemed to be a material breach of these Terms.

8.3. Termination without Cause.You may terminate your free subscriptions at any time upon written notice. L4G may terminate your free subscriptions for any reason upon 14 days’ prior written notice.

8.4. Consequences of Termination.If you have a paid subscription:

• Any Termination. Upon termination of the subscription, you will remain liable to pay any fees payable to us for the period prior to the effective date of termination.
• Termination for L4G Breach.If the subscription is terminated by you due to L4G’s material breach, L4G will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the effective date of termination of that subscription.
• Termination for Your Breach; Your Termination without Cause. If the subscription is terminated by L4G due to your material breach, or is terminated by you without cause, L4G will invoice, and you will pay, any accrued but unbilled fees and any unpaid fees covering the remainder of the term of that subscription had it not been terminated.

8.5. Survival.The following Sections will survive termination of these Terms: 5 (Intellectual Property & Client Data), and 8 (Term and Termination) to 12 (General).

9. WARRANTIES

9.1. Mutual Warranties.Each party represents and warrants that: (a) it has full power and authority to enter into these Terms; and (b) it will comply with all laws and regulations applicable in connection with its provision or use of the Services, as applicable.

9.2. Disclaimers.EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, L4G MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. L4G PROVIDES THE SERVICES ON AN “AS IS” BASIS AND, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKES NO REPRESENTATIONS REGARDING THE AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.You are responsible for making, maintaining, and protecting backups of Client Data and, except as required by law, L4G will not be liable for any failure to store, or for loss or corruption of, Client Data.

10. INDEMNITIES

10.1. By You.You will indemnify, defend, and hold harmless L4G, its directors, officers, employees, agents, and affiliates from and against all liabilities, damages, expenses and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim (collectively “Claims”) regarding or in connection with: (a) Client Data, including Claims that Client Data infringes or misappropriates a third party’s Intellectual Property Rights or violates applicable law; or (b) any content or data provided by you or Authorized Users.

10.2. Indemnification Procedures.A party seeking indemnification under these Terms will promptly notify the other party of the claim and reasonably cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense.

11. LIABILITY

11.1. Exclusion of Certain Liability.TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL L4G BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS FOR: (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, UNDER ANY THEORY OF LAW, INCLUDING TORT, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF L4G KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11.2. Liability Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, L4G’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS FOR ALL CLAIMS OF ANY KIND WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO L4G UNDER THESE TERMS DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO LIABILITY FOR: (A) FRAUD OR WILFUL MISCONDUCT, OR (B) DEATH OR PERSONAL INJURY.

12. GENERAL

12.1. Amendments.These Terms may only be amended if authorized representatives of each party agree in a signed writing.

12.2. Assignment.Neither party may assign these Terms without the other party’s prior written consent (such consent not to be unreasonably withheld). Notwithstanding the foregoing, a party may assign these Terms without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of that party’s assets or of the business line to which the subject matter of these Terms relates. Any other attempt to transfer or assign is void.

12.3. Counterparts.These Terms may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument.

12.4. Dispute Resolution. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce these Terms or arising out of or in connection with these Terms, each party irrevocably submits to the exclusive venue and personal jurisdiction of the state courts located in San Francisco County, California, and the federal courts located in the Northern District of California. In any legal proceeding instituted by a party to enforce these Terms, the prevailing party shall have the right to collect from the other party the reasonable costs and expenses incurred by the prevailing party in conducting the legal proceeding, including reasonable attorneys’ fees and disbursements, and court costs.

12.5. Entire Agreement.These Terms (including any terms incorporated herein by reference), constitute the entire agreement between you and L4G and they supersede any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning their subject matter. Any terms appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.

12.6. Force Majeure.Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, or governmental action) that was beyond the party’s reasonable control.

12.7. Governing Law.These Terms are governed by the laws of the State of California, without giving effect to any of its conflict of laws principles.

12.8. Interpretation. The use of the words “includes,” “including,” “such as,” “for example,” and similar terms are deemed not to limit what else might be included.

12.9. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.

12.10. Notices.Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be deemed to be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email, provided that if you wish to send L4G a notice of breach or termination for breach, you must send such notices to L4G by postal mail or courier. L4G may send all notices to the email address that you have specified in your L4G account. Notices to L4G must be sent to PO Box 805, Narberth, PA 19072 or, if permitted by email, to feedback@fundforsharedinsight.org.

12.11. Relationship.The relationship between you and L4G is that of independent contractors and not legal partners, employer/employee, joint venturers, or agents of each other.

12.12. Severability.If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.

12.13. Third Party Beneficiaries. There are no third party beneficiaries to these Terms. Your Authorized Users are not third party beneficiaries to your rights under these Terms.