Terms & Conditions
LICENSE AGREEMENT – ABACUS MAJOR DONOR ASK CALCULATOR
This License Agreement (“Agreement”) is made and entered into between Copley Raff, Inc., a Massachusetts corporation, with its principal place of business at 164 Brook Farm Road, Unit 164, Boston, MA 02132 (“Licensor”), and the “Licensee”.
WHEREAS, Licensor has developed certain software that provides a Software-as-a-Service product called “ABACUS” for assisting advancement officers to determine a bold and respectful amount to ask a donor for a 3-year pledge for an agreed upon purpose for a nonprofit organization;
WHEREAS, Licensee desires to license the ABACUS product from Licensor; and
WHEREAS, Licensor is willing to license the ABACUS product to Licensee on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.1 “Agreement” means this Licensing Agreement.
1.2 “Confidential Information” means any non-public information of a party, including but not limited to technical, business, financial, and other proprietary information, disclosed by one party to the other party under this Agreement, whether in writing or orally.
1.3 “Documentation” means any user manuals, installation guides, help files, and other written materials relating to the ABACUS product provided to Licensee by Licensor.
1.4 “Intellectual Property Rights” means all rights in and to patents, trade secrets, copyrights, trademarks, trade dress, and any other intellectual property rights recognized in any jurisdiction worldwide.
1.5 “Software-as-a-Service product” means the ABACUS software-as-a-service product provided by Licensor under this Agreement, including any updates, upgrades, or modifications made by Licensor from time to time.
- LICENSE GRANTS
2.1 Licensor Grant. Licensor grants to Licensee a non-exclusive, non-transferable, and limited license to access and use the Software-as-a-Service product for the internal use of Licensee and its authorized users that may include Licensee Organizations and designated staff of Licensee Organizations.
2.2 Restrictions. Licensee shall not: (i) sublicense, distribute, rent, lease, loan, or transfer the Software-as-a-Service product to any third party other than its Licensee Organizations; (ii) modify, reverse engineer, decompile, disassemble, decrypt, derive any source code from, or create derivative works based on the Software-as-a-Service product; (iii) remove any proprietary notices, labels, or marks on the Software-as-a-Service product; (iv) use the Software-as-a-Service product to develop or provide a similar product or service to any third party; or (v) use the Software-as-a-Service product for any unlawful purpose or in any manner that violates any applicable laws, regulations, or industry standards.
2.3 Specialized Services. During the term of this Agreement, Licensor may request Licensor to perform computer professional services in the nature of software development, customization add-in, documentation, and/or integration services (“Specialized Services”). For example, the parties may enter into a separate “White Label Addendum” or a “Statement of Work” with regards to customization of ABACUS. All Specialized Services requested by the Licensee must be set out in a separate written agreement to establish the terms, conditions and costs for such services.
2.4 Ownership. Licensor retains all right, title, and interest in and to the Software-as-a-Service product, including all Intellectual Property Rights in the Software-as-a-Service product. This Agreement does not transfer any ownership or Intellectual Property Rights to Licensee. The Licensee has the right to use all Information provided via Licensor’s Data analysis process solely in connection with Licensee fundraising and marketing programs.
2.5 Licensee Grant. All user data generated by the Licensee and/or its Licensee Organizations (“Licensee Data”) will be available to both Licensee and Licensor. Licensor is granted the right to use Licensee Data for its analytic purposes provided that no donor names are used for any public purpose.
2.6 Fee. In exchange for the License granted under this Agreement, Licensee will pay Licensor the Fee set out in the Order.
3. REPRESENTATIONS BY LICENSOR
Licensor represents and warrants to Licensee as follows:
3.1 Licensor has all rights and licenses necessary to deliver the Information to the Licensee and grant the Licensee all rights granted in this Agreement to analyze and use the Information.
3.2 To the knowledge of Licensor without investigation, the Information does not infringe upon or otherwise violate any copyright, trade secret, trademark, patent, invention, right of privacy, known third party rights, or non-disclosure requirements of any third party. In furtherance of these representations and Licensee’s reliance thereon, Licensor shall indemnify and hold Licensee, its officers, directors, agents, and employees harmless against all claims, demands, or liabilities of or to third parties arising from or in connection with Licensor’s breach of its representations or warranties as to third party infringement under this Section 3.2. Said indemnification shall survive the expiration or termination of this Agreement.
3.3 Licensor will obtain the Information from reliable sources and run reasonable control checks on the Information but will not be subject to liability for the truth or accuracy of the Information conveyed or for its completeness or errors or mistakes made by humans or machines. Licensor shall take reasonable steps to control the continuing quality of the Information. Application of such quality control procedures constitutes the full extent of warranty concerning the information provided. The Licensee acknowledges that it may be necessary or advisable from time to time, in the ordinary course of Licensor’s business, for Licensor to add, delete, and substitute information it makes available to its Licensees, including the Licensee. Licensor expressly reserves the right to revise the Information and to make changes in content. Licensor will give the Licensee written prior notification of any such changes.
3.4 Licensor makes no warranties except for those set forth above and disclaims all other warranties, whether express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose. Licensor makes no warranty of any kind that the services, or any products or results of the use thereof, will meet the Licensee’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error-free. These disclaimers must be conveyed to all Licensee authorized users of the Information. Licensor’s sole and exclusive liability and Licensee’s sole and exclusive remedy for breach of the limited warranty outlined in this Section 3.4 shall be reperformance of the affected services or, at Licensor’s option, a refund to Licensee of a portion of the fees previously paid by Licensee corresponding to the defective services.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY (I) LOSS OF USE, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (II) LOSS OF GOODWILL OR REPUTATION; (III) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (IV) FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
4.2 IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LICENSOR FOR THE INFORMATION AND SERVICES THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
4.3 EXCEPT AS PROVIDED IN THIS AGREEMENT AND ANY EXHIBIT, LICENSOR IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED BY ANY PERSON OR PARTY AS A RESULT OF THE USE OF OR RELIANCE ON THE INFORMATION OR SERVICES SUPPLIED. IN NO EVENT WILL LICENSOR BE LIABLE FOR LOSS OR DAMAGE INCURRED BY ANY PERSON OR PARTY DUE TO THE USE OF THE LICENSEE’S SOFTWARE, DATA, OR EQUIPMENT.
4.4 LICENSOR SHALL NOT BE LIABLE OR RESPONSIBLE TO LICENSEE, NOR BE DEEMED TO HAVE DEFAULTED OR BREACHED THIS AGREEMENT, FOR ANY FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY TERM OF THIS AGREEMENT WHEN AND TO THE EXTENT SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM ACTS OR CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF LICENSOR INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, FLOOD, FIRE, EARTHQUAKE, EXPLOSION, GOVERNMENTAL ACTIONS, WAR, INVASION OR HOSTILITIES (WHETHER WAR IS DECLARED OR NOT), TERRORIST THREATS OR ACTS RIOT, OR OTHER CIVIL UNREST, NATIONAL EMERGENCY, REVOLUTION, INSURRECTION, EPIDEMIC, PANDEMIC, LOCKOUTS, STRIKES OR OTHER LABOR DISPUTES (WHETHER OR NOT RELATING TO EITHER PARTY’S WORKFORCE), OR RESTRAINTS OR DELAYS AFFECTING CARRIERS OR INABILITY OR DELAY IN OBTAINING SUPPLIES OF ADEQUATE OR SUITABLE MATERIALS, MATERIALS OR TELECOMMUNICATION BREAKDOWN OR POWER OUTAGE.
5. TERM AND TERMINATION
5.1 This Agreement shall be effective for a term of the Agreement beginning on the Effective Date of the Order and shall continue for a period of the Order (the “Initial Term”) and successive Orders that may follow the initial Order.
5.2 Upon any material default under this Agreement by either party, the other party shall give written notice of such default to the defaulting party. Unless the default is cured within thirty (30) days after delivery of such notice, then, without limitation of any other remedy available herein, the non-defaulting party may terminate this Agreement by delivery of a notice of termination to the defaulting party at any time before such default has been cured. Notwithstanding the foregoing, if the Licensee cannot cure the default within the thirty (30) day cure period despite the defaulting party’s good faith efforts and diligence, and if the defaulting party commences the cure within the thirty (30) day cure period and thereafter uses good faith efforts and reasonable diligence to cure the default, then the non-defaulting party shall not be entitled to terminate this Agreement until the sixtieth (60th) day after delivery of the default notice.
5.3 Notwithstanding anything to the contrary contained herein, if Licensee fails to pay to Licensor any amount as and when due hereunder, Licensor may at its sole discretion discontinue any or all Information and/or Services provided hereunder and/or exercise any rights it may have at law, in equity, under this Agreement or otherwise, all without any obligation to provide notice or an opportunity for Licensee to cure in connection therewith.
5.4 The Licensee may terminate this Agreement at any time, without cause, by providing at least thirty (30) days prior written notice to Licensor; provided, however, that no such termination shall relieve Licensee of its obligation to pay for: (i) any Services provided up to the effective date of termination; or (ii) any Information supplied or being processed by Licensor. In addition to the foregoing, as consideration for the right to terminate this Agreement under this Section 5.4, Licensee shall, upon termination, pay Licensor a termination fee in an amount equal to the Termination Fee set forth in the Order.
LICENSEE ACKNOWLEDGES AND AGREES THAT THE SERVICES, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR DOES NOT MAKE (AND HEREBY SPECIFICALLY DISCLAIMS) ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT TO INTELLECTUAL PROPERTY RIGHTS, OR ANYTHING ELSE.
7.1 Non-Compete / Non-Solicit. Licensor hereby agrees that it will not solicit or contract with any entity that Licensor learns of or gets introduced to by Licensee during the term of this Agreement and for a period of 1 year thereafter.
7.2 Recognition. Licensee hereby agrees that, during the term of this Agreement, Licensor may use Licensee’s name and those of any Licensee Organizations on its website and in business development communications for promotional purposes.
7.3 Train the Trainer. If requested by Licensee, the Licensor will provide one (1) train the trainer session (for up to 90 minutes) at no additional cost.
7.4 Insurance. Licensor hereby agrees that it will, at its own expense, carry and maintain insurance coverage during the term of this Agreement with the following policy limits: Cyber insurance $1M limit on nine coverages in addition to Professional Liability and Business owners umbrella liabilities with aggregated limits of $2M.
7.5 FCRA. The Licensee acknowledges that Licensor is not a consumer reporting agency or subject to the Fair Credit Reporting Act (FCRA). Accordingly, no service provided by Licensor shall, under any circumstance, be utilized for any purpose covered under the FCRA.
7.6 Assignment. Neither this Agreement nor any interests or duties hereunder may be assigned by either party without the prior written consent of the other.
7.7 Governing Law and Venue. This Agreement shall be governed by and construed and enforced per the laws of the Commonwealth of Massachusetts, excluding its choice of law rules regardless of its place of execution. In the event of a dispute hereunder, the parties agree to submit to the exclusive jurisdiction of the state courts of, and federal courts sitting in, the Commonwealth of Massachusetts. No waiver of any term or condition of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition.
7.8 Notices. All notices given under this Agreement must be in writing and sent by certified/registered mail or express courier to the addresses listed in the header of this License.
7.9 Enforceability. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect.
7.10 Amendments. Only by written agreement of the parties may this agreement be modified or amended in any manner whatsoever.
7.11 Duly Authorized. Each party represents and warrants that its respective representative, whose signature appears below, is duly authorized by all necessary corporate actions to execute this Agreement.
7.12 Entire Agreement. This Agreement, including all Exhibits, contains the entire understanding between Licensor and Licensee and supersedes all prior written and oral understandings relating to the subject matter hereof. This Agreement may be executed in counterparts to form a single, integrated document.
All fees are due and payable within 30 days of the Start Date.
Licensor does not offer refunds or early cancellations on any Licensed products.
“Licensee Organizations” and their authorized users may use ABACUS subject to the terms and conditions set forth in the License Agreement.
Licensee shall be responsible and liable for ensuring that all Licensee Organizations and their authorized users comply with the terms and conditions of the License Agreement.
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Licensor has implemented technical, administrative, physical, and organizational safeguards and security measures that are consistent with industry standards and practices and otherwise meet the requirements of applicable federal, state, and local law, including applicable state data privacy laws, in order to: (i) protect Licensee Data and Confidential Information against unauthorized destruction, loss, alteration, access, misuse or disclosure, and (ii) ensure the availability, integrity, and confidentiality of Licensee Data and Confidential Information in possession of Licensor or its affiliates, contractors, and personnel (or to which any of the foregoing has access) (the “Data Safeguards”). In this respect, Licensor shall employ appropriate methods, including encryption, encrypted devices, and secure communication lines to secure Licensee Data’s privacy and security and to minimize the risk of unauthorized access.
LICENSOR DATA SECURITY COMPLIANCE
Licensor warrants that it shall require all of its employees, contractors, agents, and other authorized individuals who have access to its data centers to adhere to its written security policies and procedures regarding remote electronic access or physical access to a data center which shall be available to Licensee upon execution of this Agreement and as requested thereafter. Licensor shall enforce such security policies and procedures and take appropriate corrective action against individuals who fail to adhere to such security policies and procedures, including termination.
ACCESS AND BREACHES
Licensor will not attempt to access or allow access to Licensee Data that is not required for the performance of the services hereunder or otherwise authorized by the Licensee. Licensor shall notify Licensee within forty-eight (48) hours of: (a) Licensor’s determination that an actual or suspected breach of Licensee Data has occurred, or (b) in the event of Licensor’s determination that any actual or suspected unauthorized use, disclosure, acquisition or access to Licensee Data has occurred that requires Licensee, under applicable federal or state law, to make a notification to any third party (including, without limitation, to any affected individual) (a “Triggering Event”). To the extent Licensee is required to notify any third party of such breach, unless otherwise required by law, Licensee shall have the sole right to make such notification, including determining the content, methods, and means of such notification. Notwithstanding the foregoing, Licensor shall reasonably cooperate with Licensee in formulating such notification, but Licensor shall not make any such notification at its own initiative without Licensee’s prior written consent. Licensor will pay the reasonable costs and expenses of investigation, remediation, notification, and penalties to the extent the Triggering Event is caused by the grossly negligent acts or omissions of Licensor, its subcontractors, or any Licensor personnel, or there has been a material breach of this Agreement by Licensor or any Licensor personnel, subject to the terms and conditions of the License.
Licensor shall use commercially reasonable efforts to ensure that the data centers, solutions, and/or programs used by Licensor in providing the Services are protected against known or suspected Disabling Devices by implementing appropriate processes for detecting, preventing, and recovering from virus attacks, including all necessary data and software back-up and recovery tools and arrangements. “Disabling Devices” shall mean any software, equipment, tools or data: (a) designed or able to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of the systems, or any software, equipment, tools or data (e.g., “viruses” or “worms”); (b) that would disable the Licensor systems, or Licensee’s access to the Licensee Data, or impair in any way their operation including, for example, based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (e.g., “time bombs”, “time locks” or “drop dead” devices); (c) that would permit a third party to access Licensee Data, to cause such disablement or impairment, or otherwise to circumvent the security features of the Licensor systems or services, or Licensee Data hosted by Licensor (e.g., “traps”, “access codes” or “trap door” devices); or (d) which contains any other harmful, malicious or hidden procedures, routines or mechanisms which would cause the Licensee systems to cease functioning or to damage or corrupt storage media, software, equipment, tools, data or communications or any part of the Licensor systems, or otherwise interfere with operations.
DATA AVAILABILITY AND DISASTER RECOVERY PLAN
Licensor shall implement a disaster recovery plan to ensure that all Licensee Data is preserved for as long as Licensee requires such Licensee Data to be preserved and readily available at all times to Licensee. The disaster recovery plan shall include the following procedures: Licensor shall ensure that a backup of its systems, including the Licensee Data, is conducted every other night by Licensor, which at a minimum, shall include daily incremental backups. Backups are conducted digitally at Licensor’s expense. In addition, Licensor shall ensure that all Licensee Data hosted by Licensor is securely stored and preserved on both primary and backup data centers, and in the event of failure of the primary data center or other interruption of access to the Licensee Data, that Licensor shall readily restore the redundant copy of such Licensee Data and the hosting services, accessible and usable by Licensee (from the back-up data center or other location or means as agreed by the parties).
Licensor shall not directly or indirectly transmit or transfer to or allow access from any offshore location to any information or Licensee Data without Licensee’s prior written consent, which Licensee may withhold consent for any or no reason.
Violations of this Agreement include, but are not limited to, any attempt to avoid user authentication or security of any host, network, or account. This includes accessing content not intended for visitors and logging into an account you are not expressly permitted to access. Attempting to force a denial of service by email bombing, packet spoofing, or ping flooding, among other measures, is strictly prohibited. The Licensee is forbidden to perform any network monitoring, including probing the security of networks or attempting to intercept data not intended for the Licensee.
The Licensee must ensure that only users who are a part of their organization and who have authorization can access and use the Service under this Agreement. Such access and use only enable the Licensee to conduct its business in the normal course. The Licensee agrees to take all necessary precautions to ensure that no unauthorized persons have access to the product. All authorized persons having access refrain from unauthorized disclosure, duplication, reproduction, or storage on locations accessible by users who do not have authorization.
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