Master Terms and Conditions
DOUBLE THE DONATION – 360MATCHPRO
MASTER TERMS AND CONDITIONS
1.0 GENERAL. These Master Terms and Conditions (these “Terms and Conditions”) are made by and between Impact Ventures, LLC (d/b/a Double the Donation) (the “Provider”) and the client organization (the “Client”) executing and delivering any Order (each, an “Order”) or Statement of Work (an “SOW”), issued in connection herewith, and into which these Terms and Conditions are incorporated by reference. In the event of a conflict between these Terms and Conditions and any Order or SOW, these Terms and Conditions will control, unless such Order or SOW expressly states it shall supersede the applicable provision(s) of these Terms and Conditions.
2.0 DEFINITIONS. As used in these Terms and Conditions, and in addition to any other defined terms, the capitalized terms used herein are defined in the Definitions at the end of these Terms and Conditions.
3.1 General. All Services will be provided to Client according to these Terms and Conditions and one or more Orders or SOWs.
3.2 Platform Services. Provider will provide Client, End Users and other users authorized by Client pursuant to the relevant Order with access to “Double the Donation 360MatchPro Platform” (the “Platform Services”), as may be more particularly set forth in one or more Orders. Certain Platform Services, and related browser and operating system compatibility, may be more specifically described in such Order. During the Term and subject to Client’s compliance with these Terms and Conditions, Provider grants Client the worldwide, non-exclusive, non-transferable, non-assignable, and limited right and license to allow End Users to remotely access certain Platform Services located remotely in accordance with the terms hereof. Use of the Platform Services may be further limited by terms and conditions contained in any applicable Order. Certain service levels related to the performance of the Platform Services are more particularly described in the Service Level Agreement of Provider, which is located at https://doublethedonation.com/service-level-agreement/ and is incorporated herein by reference.
3.3 Support Services. Provider will provide customer care and Support Services to Client to the extent set forth in an Order or SOW, and (if applicable) the Service Level Agreement (“Support Services”). If a reported problem (or if Client otherwise requests assistance) is outside the scope of Support Services, Provider will notify Client to that effect and reserves the right, upon Client’s confirmation to move forward, to charge Client at Provider’s then-current standard hourly rates, for all associated work, for which Client agrees to pay Provider promptly upon receiving an invoice; provided, however, that Provider shall inform Client in advance of the possible incurrence of such fees and Client shall have pre-approved the same, in writing, prior to any such incurrence.
3.4 Maintenance. Client acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, the Provider infrastructure is designed to support updates without the need to suspend the Platform Services for an extended period of time. Provider has no obligation to provide notice to Client regarding such maintenance activities; provided, however, that Provider shall use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
3.5 Additional Services. To the extent that the same is expressly set forth in an Order or SOW, Client may be provided the option to receive or purchase: (1) integration and implementation services; (2) additional modules or features developed by Provider; and (3) additional modules or features available via third-party integration (collectively, the “Additional Services”). The delivery of and fees for the Additional Services will be as set forth in the applicable Order or SOW. Client must have an active subscription to the Platform Services to access, use or receive Additional Services.
4.0 OWNERSHIP RIGHTS.
4.1 For Provider. All title, ownership rights, and Intellectual Property Rights in and to the Provider Software, the Platform Services, Additional Services, and all Provider Marks (and all Derivative Works and copies thereof) are and will remain owned by Provider. Client acknowledges that the Provider Software in source code form remains Proprietary Information of Provider and that the source code is not licensed to Client by these Terms and Conditions or any SOW and will not be provided by Provider.
4.2 For Client. All title, ownership rights, and Intellectual Property in Materials that Client owns, and that Client uploads to Provider Software, will remain owned by Client. Provider shall be granted no rights and licenses therein, except to the extent necessary for the provision of Services by Provider to Client hereunder.
5.0 FEES AND PAYMENT TERMS.
5.1 Fees. Fees payable under these Terms and Conditions or any Order or SOW shall be in the amounts and payable on the terms set forth on the applicable Order or SOW and as otherwise set forth in Section 5.2 below. Except as otherwise may be set forth in an Order or SOW, all payments for fees shall be due in advance, within thirty (30) days from receipt by Client of an invoice for the same. After the Initial Term, and at the beginning of each Renewal Term thereafter, the fees for such upcoming Renewal Term shall remain the same as those applicable during the most recently completed billing cycle, except as the same may otherwise be agreed between the parties. All fees paid, and expenses reimbursed will be in the currency specified in the Order or SOW. Except as otherwise specified in the Order or SOW, payment must be done by check or ACH. If requested, Provider may elect in its sole discretion to accept a credit card, with an additional fee, as an additional valid payment method.
5.2 Expenses. For any Additional Services provided by Provider, Client will reimburse Provider for actual, reasonable travel, lodging, living, and other incidental expenses incurred; provided, however, that the same must be specifically agreed by the Parties, pre-approved by the Client in writing, and incurred in accordance with any Client policy on such matters which has been provided to Provider.
5.3 Late Payments. Provider may, at its option, suspend the Services, in whole or in part, if Provider does not receive all amounts due and owing under this Agreement, which are not reasonably in dispute, when due; provided, however, that it shall resume normal provision of Services promptly following the resolution of any such condition, in the event that the Agreement has not been terminated pursuant to the terms of Section 11.2.
5.4 Taxes. The fees and expenses due to Provider shall be paid free and clear of any deduction or withholding on account of taxes. Client shall be responsible for all sales, use, value-added, ad valorem or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Platform Services (other than taxes based solely on Provider’s income). If and when Provider has the legal obligation to collect such taxes, Provider will invoice Client the amount of such taxes, and Client will pay such amount, unless Client provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Client will provide Provider with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Provider to establish that such taxes have been paid. The parties shall reasonably cooperate to more accurately determine each party’s tax liability and to minimize such liability to the extent legally permissible. For tax purposes, Client represents and warrants to Provider that the Platform Services will be considered by the parties as delivered in the locations specified in the Order or SOW, or Client’s principal business address, if not otherwise specified in the Order or SOW.
5.5 No Deductions or Setoffs. All amounts payable to Provider will be paid by Client in full, and without any setoff, recoupment, counterclaim, deduction, debit or withholding, for any reason (other than any deduction or withholding of tax, as may be required by applicable law).
6.0 CLIENT OBLIGATIONS.
6.1 Technical Requirements. Client shall be solely responsible for its hardware and related electronic equipment, software, and Internet access to be able to access and use the Platform Services. Acquiring, installing, maintaining and operating equipment, any Client Software, and Internet access is solely Client’s responsibility. Provider neither represents nor warrants that the Provider Software will be accessible through all browser releases or all versions of tablets, smartphones, or other computing devices, except as may be expressly set forth on the Order or SOW.
6.2 Use of Services. Client shall not and shall not knowingly permit others in using the Provider website, Provider Software or Platform Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Provider; (ii) publish, ship, distribute or disseminate any harmful, infringing, fraudulent, tortious, or unlawful material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that constitutes a criminal offense; (iv) misrepresent or in any other way falsely identify Client’s identity or affiliation, including through impersonation or altering any technical information in communications using the Platform Services; (v) knowingly transmit or upload any material through the Platform Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Provider’s, or any other person’s or entity’s, network, computer system, or other equipment; (vi) interfere with or disrupt the Platform Services, networks or servers connected to the Provider systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Platform Services; (vii) attempt to gain unauthorized access to the Platform Services, other Provider customers’ computer systems or networks using the Platform Services through any means; (viii) copy, modify or create derivative works or improvements of the Services or Provider Software; (ix) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Software, in whole or in part; (x) bypass or breach any security device or protection used by the Services or Provider Software or access or use the Services or Provider Software other than through the use of then valid access credentials; (xi) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any Services or Provider Software; (xii) access or use the Services or Provider Software for purposes of the development of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage; or (xiii) interfere with another party’s use of the Platform Services. Provider has no obligation to monitor Client’s use of the Provider Software and Platform Services; however, Provider reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of these Terms and Conditions or any Order or SOW, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
6.3 Account Activation. Provider will provide Client with an account in order to use the Services. To the extent provided in the Order or SOW, Client may be provided the opportunity to choose an account name for its web space that is not already in use by another customer. Client and End Users are fully responsible for all activities performed on or through their account. Client agrees that Client and each End User will: (a) provide true, accurate, current and complete information as prompted by the registration form, (b) maintain and promptly update the Registration Data to ensure the information is always true, accurate, current and complete, (c) immediately inform Provider of any unauthorized use of an account or any other breach of security, and (d) exit from the account at the end of each work session. Provider undertakes no obligation to verify the data provided by Client or its End Users. However, if Provider finds or suspects that the provided information is untrue, inaccurate, not current or incomplete, Provider may suspend or terminate Client’s or and End User’s account and refuse any and all current or future use of the Services (or any part of them).
6.4 Password Confidentiality. Each End User that uses the Platform Services must choose a password when registering. Client will cause such End Users to maintain the confidentiality of the passwords. Client will also be assigned a password or passwords for access to and use of the Platform Services. Client acknowledges that once the initial password provided to the Client is changed, Provider does not retain the technical ability to retrieve such passwords. Client is fully responsible for all activities that occur using Client and End User passwords. Client acknowledges and agrees that Provider shall not be liable for any loss that Client or any End User may incur as a result of someone else using a password that has been assigned to or obtained by Client or its End Users, either with or without the knowledge of Client or the applicable End User; nor shall Provider be liable or responsible for any unauthorized access or misuse of the Platform Services by Client or any of its End Users.
6.5 Compliance with Law. Client will notify Provider without any undue delay of any discovered unauthorized use of the Platform Services or any other breach of security that is known or suspected by Client, provided Client is legally able to give such notice. Provider may suspend the Services in the event of a violation of Sections 6.2 or 6.5, until such violation ceases and Provider receives reasonable assurances that such violations will not continue. If Provider believes, in its sole discretion, that the software, computing equipment or network systems owned or controlled by Provider (collectively, “Provider Systems”) are being currently used for criminal activity, in a manner that violates the legal rights of Provider, Provider’s customers (including Client), any user or other third party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the Provider Systems places the Provider Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to Client.
6.6 Application Programming Interface Provisions.
(a) Provider has developed and may provide access to an application programming interface (“API”) that may be used to access the Platform Services (the “DD API”). Client may use the DD API solely as described in the Documentation and with the Platform Services as identified in the applicable Order.
(b) Provider provides certain aspects of the Documentation in relation to the DD API, which may disclose certain snippets of code as examples of how to use the DD API. Provider expressly disclaims and shall have no liability with respect to how the DD API or code snippets within the DD API are used.
(c) Client may access the DD API through a login and API keys (“DD API Credentials”). Client is responsible for securing its DD API Credentials. Provider allows Client to control, track, and monitor End Users with access to Client’s DD API Credentials. Client expressly understands and acknowledges Client is responsible for all End Users who have access to and make use of the DD API. Client expressly understands and agrees that Provider does not control, track, or monitor the dissemination of any DD API Credentials, and, therefore, any misappropriation of DD API Credentials may neither be apparent to nor discoverable by Provider without notice. Client shall contact Provider immediately if Client becomes aware of any unauthorized use of Client’s DD API Credentials or any other breach of security regarding the Platform Services, which may be caused by Client’s use of the DD API.
(d) Client may not use the DD API for any purpose, function, or feature not described in the Documentation or otherwise communicated to Client by Provider. Provider may set limits on the number of DD API calls that Client can make at its sole discretion without notice. For example, Provider may limit the number of Client’s DD API calls in the interest of service stability. If Client exceeds the limits as set forth by Provider, Provider may moderate Client’s activity or cease offering Client access to the DD API altogether in Provider’s sole discretion. Client agrees to such limitations and will not attempt to circumvent such limitations. Provider may immediately suspend or terminate Client’s access to the DD API without notice if Provider believes, in its sole discretion, that Client is in violation of this Agreement.
(e) Due to the nature of the Platform Services, Provider will update the DD API and Documentation from time to time, and may add or remove functionality. Provider will provide Client with notice in the event of material changes, deprecations, or removal of functionality from the DD API so that Client may continue using the Platform Services with minimal interruption.
(f) Client agrees to accept responsibility for any damages and/or losses caused as a result of, or in connection with, but not limited to, any requests initiated through the DD API using Client’s DD API Credentials.
7.0 NON-DISCLOSURE AND CONFIDENTIALITY.
7.1 Disclosure. Each party may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of these Terms and Conditions, “Trade Secrets” means information that is a trade secret under law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information; the “Disclosing Party” refers to the party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
7.2 Requirement of Confidentiality. Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated. Client acknowledges that the Provider Software and Documentation are the Proprietary Information of Provider. With regard to the Trade Secrets, the obligations in this Section 7.2 shall continue for so long as such information constitutes a trade secret under applicable law. With regard to the Confidential Information, the obligations in this Section 7.2 shall continue for the Term set forth in the Order or SOW and for a period of two (2) years thereafter. The foregoing obligations shall not apply if and to the extent that: (i) Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach; (ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Proprietary Information, then Recipient may disclose the requested Proprietary Information; provided however, that, Recipient shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms hereof and shall disclose only that part of the Proprietary Information which Recipient is required to disclose.
7.3 Return of Materials. Upon the request of the Disclosing Party, Recipient shall promptly destroy or deliver to the Disclosing Party its Proprietary Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, Recipient shall be permitted to retain such copies of Proprietary Information as necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.
7.4 Data Use. Client agrees that data derived by Provider from Provider’s performance of the Services or input by Client may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, except that such analysis shall be performed solely by Provider and such analysis shall be performed only in conjunction with data derived by Provider from Provider’s performance of services for other customers, input by other Provider customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by Provider for any lawful purpose, including determining future hardware and communications needs for Provider systems and determining trends associated with warehouse use, operation, and efficacy. Notwithstanding anything herein to the contrary, De-identified Data shall not contain (i) any Proprietary Information of Client, (ii) any information that identifies or can be reasonably used to identify an individual person, (iii) any information that identifies or can be reasonably used to identify Client or its affiliates, suppliers, or End Users, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Client. Except as otherwise provided herein, Provider shall only use Client’s Proprietary Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
7.5 Protection of Client’s Proprietary Information. Provider agrees to use commercially reasonable efforts consistent with industry practices and applicable law to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Client’s Proprietary Information. In addition to the foregoing, the Provider maintains the Information Protection and Security Standards (“IPSS“), which are located at https://doublethedonation.com/ipss/ and are incorporated herein by reference, as the same may be updated by the Provider, from time to time, and will observe the same throughout the Term of this Agreement. In the event of any proposed material change to its IPSS, the Provider will provide the Client with at least thirty (30) days’ prior written notice, and, in no event may any such change represent a material degradation to the security standards of the Provider, or the Client shall be entitled to terminate this Agreement by written notice in case of any implementation of the same.
7.6 Personal Data; Provider Corporate Giving Database.
(b) Provider owns its corporate giving information database, which includes matching gift and volunteer grant information. This includes the database structure, wording, lists of companies (including their subsidiaries and alternate variations), forms, guidelines, instructions, and additional fields. Provider shall in any case retain ownership of its database of corporate giving information and any variations made to the database (the “Corporate Giving Database”), whether in part by Client’s efforts or otherwise. Client can use the Corporate Giving Database data associated with these efforts for its individual outreach to donors. Client will not replicate, download, disseminate, publish, copy or otherwise reproduce the Corporate Giving Database, nor will Provider use the Corporate Giving Database for any purpose outside the scope of performing donation-raising activities with the Platform Services, as contemplated by these Terms and Conditions and any Order or SOW. Due to the collaborative nature of its database, Provider cannot and does not make any representation as to the accuracy of any information in its database.
8.0 LIMITED WARRANTY. Provider represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted herein; (iii) the Services delivered hereunder will operate substantially in conformity with its Documentation under normal use and circumstances; (iv) the Documentation accurately reflects the material features and functions of the Services; (v) it shall materially comply with applicable federal, state and local laws, rules, and regulations when performing its obligations hereunder; and (v) to Provider’s knowledge, the Services do not contain, and will not transmit to Client or its systems, any viruses, Trojan horses, timebombs, or any other code, programs or mechanisms that disrupt, modify, delete, harm, or otherwise impede the operation of computer systems.
OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, NEITHER PROVIDER, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CLIENT, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES OR OTHERWISE REGARDING THESE TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SYSTEM THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY PROVIDER, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CLIENT’S REQUIREMENTS. THE CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CLIENT’S PURPOSE.
9.0 LIMITATION OF LIABILITY.
9.1 Limitation of Remedy. In no event shall either party, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to the other party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill under or in any way relating to these Terms and Conditions or any Order or SOW resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal or equitable theory, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.
9.2 Maximum Liability. Except for claims arising (a) pursuant to Section 7.2, or (b) in connection with any indemnification obligation hereunder, IN NO EVENT SHALL PROVIDER’S LIABILITY FOR ANY DAMAGES TO CLIENT OR TO ANY OTHER PERSON OR ENTITY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EXCEED THE PRO RATA PORTION OF FEES RECEIVED BY PROVIDER FROM CLIENT APPLICABLE TO THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH ACTION.
10.1 Provider Indemnification.
(a) Provider shall indemnify, defend, and hold harmless Client and its officers and End Users against any third-party claim that (i) the Provider Software infringes any patent, copyright, or trademark, or misappropriates any trade secret (except for claims which are specifically excluded under the terms of Section 10.2), or (ii) Provider has violated Section 7.2 of these Terms and Conditions. If any Provider Software becomes, or, in Provider’s opinion, is likely to become, the subject of a claim of infringement, Provider may, at its sole option, (x) obtain for Client the right to continue using the Provider Software; (y) replace or modify the affected Provider Software so that it becomes non-infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms as determined by Provider, terminate the license or Subscription Services for the affected portion of the Provider Software and refund any prepaid subscription fees for the affected portion of the Provider Software.
(b) Notwithstanding any terms contained in this Section 10.1, Provider shall have no liability for infringement claims if the alleged infringement is based on or arises from (i) combination or use of the Provider Software with software or other materials not provided or recommended for use by Provider, (ii) the modification of the Provider Software by anyone other than Provider, or at Provider’s direction, (iii) the use of the Provider Software not in accordance with the Documentation or these Terms and Conditions, or (iv) the use of other than the then most current version of the Provider Software if the use of the most current version of the Provider Software would have eliminated the infringement, and Client was notified of and given a reasonable opportunity to use the most current version thereof.
10.2 Client Indemnification. Client will indemnify, defend, and hold harmless Provider against all claims, actions or proceedings, arising out of any claim: (i) that any Client Software, Marks, or Materials provided by Client or its End Users or inputted into the Provider Software, or the permitted use of the same by Provider, infringes or violates any third party patent, copyright or trade secret right; (ii) related to taxes, fees, tariffs, levies, duties or charges imposed on Provider or any costs or expenses incurred by Provider as a result of Client’s failure to comply with its obligations under Section 5.4 (Taxes); or (iii) involving Client’s violation of Section 7.2 of these Terms and Conditions.
10.3 Indemnification Obligations. The indemnification provided in Sections 10.1 and 10.2 is conditioned on (i) the party to be indemnified (“Indemnified Party”) giving the indemnifying party (“Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.
11.0 TERM AND TERMINATION.
11.1 Initial Term. These Terms and Conditions shall commence on the Effective Date indicated on the first-executed Order between Client and Provider. These Terms and Conditions shall continue through the Initial Term and through any Renewal Terms indicated thereon or amendments thereto, or any successive SOW executed between Client and Provider. Except as otherwise specified, these Terms and Conditions will automatically renew for additional periods equal to the expiring term, unless either party gives notice of non-renewal at least sixty (60) days before the end of the expiring term. Unless earlier terminated as provided herein, these Terms and Conditions shall continue in full force and effect until the termination or expiration of the Initial Term or last Renewal Term in effect (the “Agreement Term”).
11.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate these Terms and Conditions, and any Order or SOW executed hereunder, as provided below:
(a) By either party if the other party commits a material breach of these Terms and Conditions and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other party;
(b) By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws; or
(c) By Provider if any amounts owed remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to Client.
11.3 Effect. Upon termination for any reason, all rights and licenses granted by Provider to Client will immediately cease. Upon any Client’s prompt request, Provider shall make Client’s Materials reasonably available to it for a period of thirty (30) days. Upon any duly effected termination by Client pursuant to Section 11.2(a) or (b), Provider shall promptly refund any pre-paid but unearned fees to Client.
11.4 Survival. Termination of these Terms and Conditions or any Order or SOW will not affect the provisions regarding Provider’s or Client’s treatment of Confidential Information and Trade Secrets, provisions relating to the payments of amounts due, indemnification provisions, the provisions of Section 12, and provisions limiting or disclaiming Provider’s liability, each of which shall expressly survive such termination.
12.1 Authority. Each party and signatory thereof represents and warrants that it has the legal power and authority to enter into these Terms and Conditions and any Order or SOW. When executed and delivered by both parties, any Order or SOW, and these Terms and Conditions, will collectively constitute the legal, valid and binding obligations of such party, enforceable against such party in accordance with its terms.
12.2 Governing Law. These Terms and Conditions and any Order or SOW will be exclusively construed, governed and enforced in all respects in accordance with the internal laws (excluding all conflict of law rules) of the State of Georgia (US) and any applicable federal laws of the United States of America. Each party agrees that any claim or cause of action whether in law or equity, arising under or relating to these Terms and Conditions or any Order or SOW may be brought in a State or federal court in the State of Georgia and each party hereby consents to the jurisdiction and venue of such courts.
12.3 International Conventions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to these Terms and Conditions, any SOW, or the parties hereunder.
12.4 Communications. All communications required or otherwise provided under these Terms and Conditions, or any Order or SOW, shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail to the respective addresses set forth either on the first Order, as may be amended by the parties by written notice to the other party in accordance with this Section.
12.5 Assignment. Neither party may assign its rights and duties under these Terms and Conditions, or any Order or SOW, without the prior written consent of the non-assigning party, which, in the case of a proposed assignment to affiliates or successors-in-interest, shall not be unreasonably withheld. Any assignment in violation of this Section 12.5 shall be void and of no effect. These Terms and Conditions, and each Order or SOW, shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
12.6 Severability. In case any one or more of the provisions of these Terms and Conditions should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
12.7 Entire Agreement. These Terms and Conditions, and any Order or SOW into which they are incorporated, and the Service Level Agreement (if applicable), constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
12.8 Waiver. No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.9 Modifications. No amendment to or modification of any Order or SOW is effective, unless it is in writing, identified as an amendment to or modification of the same and is signed by an authorized representative of each party. Notwithstanding the foregoing, Provider reserves the right, in its sole discretion, to make any changes to these Terms and Conditions, from time to time, by posting the same to the link integrated into any Order or SOW referencing the same; provided that it shall provide reasonable notice of the same to Client. In addition to the foregoing, the Provider may make any changes, from time to time, to the Services and Provider Software that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Services.
12.10 Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, epidemic or other public health emergency, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties. In the event that any event of force majeure is continuing for more than sixty (60) days, then either party may move to terminate these Terms and Conditions and any affected SOW, by notice, without further liability to either party.
12.11 No Third-Party Beneficiaries. These Terms and Conditions are personal to the parties and no third parties shall be considered beneficiaries hereof, for any purposes.
12.12 Insurance. Provider, at its own cost and expense, shall obtain and maintain in force during the term of this Agreement and any Order or SOW issued hereunder, the minimum insurance coverages provided at https://doublethedonation.com/insurance-addendum (the “Insurance Addendum”). The General Liability Insurance and Auto Insurance referenced in the Insurance Addendum shall be primary and non-contributing. Each of such insurance policies shall be issued by insurance companies with an A.M. Best rating of “A-” or better. Each of the insurance policies required hereunder shall provide that the same shall not be canceled or altered without first giving thirty (30) days prior written notice thereof to Client. No such cancellation or alteration shall affect Provider’s obligation to maintain the insurance coverages required hereunder. Provider shall, upon written request, furnish Client with a current certificate of insurance evidencing each of the insurance policies, coverages and limits described above prior to the commencement of the performance of any Services hereunder and shall provide Client with further renewal certificates of insurance, promptly, upon request.
“Client Software” means the software and any other Materials owned or used by Client to access the Platform Services.
“Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, or Derivative Works to the referenced software or other Materials.
“Documentation” means the user documentation, DD API documentation, and any other operating, training, and reference manuals relating to the use of the Services, as supplied by Provider to Client, as well as any Derivative Works thereof.
“Effective Date” means the date on which these Terms and Conditions commences, as indicated herein and/or in the first Order.
“End User” means all of Client’s employees and other third parties who are authorized by Client to use the Platform Services.
“Initial Term” means the first term for the delivery of Services which incorporate these Terms and Conditions, as indicated in any Order.
“Intellectual Property Rights” means any and all rights to exclude, existing, from time to time, in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, semiconductor chip protection law, trademark law, unfair competition law, or other similar rights.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship.
“Provider Software” means the Internet-based software products, DD API, and related Services provided by Provider, that are more particularly described on an Order and that are accessible to Client and its End Users via a browser and Internet connection to the Provider server for their use of the Platform Services.
“Renewal Term” means any successive term for the delivery of Services which incorporate these Terms and Conditions, as indicated in any Order.
“Service Level Agreement” means Provider’s agreement to provide certain service availability and support levels in connection with any Order issued in connection herewith related to access to the Platform Services, which is incorporated herein and is available at https://doublethedonation.com/service-level-agreement/. The Service Level Agreement may be amended, from time to time, in Provider’s sole discretion, upon reasonable notice to Client.
“Services” means all services provided by Provider under these Terms and Conditions including the Platform Services, Additional Services, and Support Services.
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