Subject to the terms and conditions of this Agreement, the Subscriber hereby subscribes to Provider’s Association Management Software (“AMS”). Provider grants Subscriber and its Affiliates, a non-exclusive, revocable, non-transferable (other than as set forth in this Agreement), non-sub-licensable, right to access and use the AMS for its own internal business purposes in accordance with the terms and conditions set forth in this Agreement. Subscriber’s “Affiliates” means any entity owned controlled by, or under common control with Subscriber. All rights granted to Subscriber to access and use the AMS shall extend to Subscriber’s Affiliates.
Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, or otherwise commercially exploit or, subject to the below, make the AMS available in any way to any third party ; or (ii) access the AMS in order to (a) build a competitive product or AMS, (b) build a product using similar ideas, features, functions or graphics of the AMS, or (c) copy any features, functions or graphics of the AMS. Subscriber shall be permitted to allow contractors or other agents to access the AMS on Subscriber’s behalf while performing services on behalf of Subscriber, provided that any such contractors or agents who use the AMS on behalf of Subscriber as a user requiring Login access will be required to purchase additional user licenses if use by the contractor or agent causes Subscriber to exceed its maximum number of authorized users, if applicable, under this Agreement.
Provider shall provide support for the AMS and respond to service-related incidents and/or requests submitted by the Subscriber within the periods specified in the Priority Matrix and SLA Targets for Service Resolution, available at www.impexium.com/support.
The AMS is hosted on AWS and Microsoft Azure cloud servers. Provider agrees that the AMS will be accessible to Subscriber on the internet at least 99.5%, exclusive of AMS maintenance. Access to the AMS is governed by Provider’s Maintenance Policy.
A. Subscriber shall pay the Subscription and Implementation Services fees set forth on Exhibit B. Payment for the Subscription and Implementation Services (as defined in Exhibit B) shall be made by Subscriber per the payment schedule described on Exhibit B (Payment Schedule). If any undisputed invoiced amount is more than 60 days overdue, Provider may, without limiting its rights and other remedies, suspend Subscriber’s access to the AMS until such amounts are paid in full.
B. Subscription fees for the first year of the Initial Subscription Term are due on the Effective Date (the “Subscription Start Date”). Subscription Fees for subsequent years shall be due on the anniversary of the Subscription Start Date for each year in which the Software Subscription is in effect. Provider will issue renewal invoices to Subscriber for all amounts due in advance of the date due.
C. The Subscription Fees set forth in Exhibit B do not include taxes, out-of-pocket travel expenses or other expenses pre-approved in writing by Subscriber (including but not limited to airfare, parking, mileage and/or meals) associated with Implementation Services. All such expenses will be invoiced to Subscriber on a direct pass-through basis, with no administrative or overhead charge added. Unless taxes are collected and remitted by Provider (as indicated on the invoice presented to Subscriber by Provider), Subscriber is responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on Provider’s net income. Subscriber shall provide to Provider any certificate of tax exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability.
Both Provider and Subscriber shall maintain for the duration of this Agreement all necessary insurance coverages which shall be on a primary and non-contributory basis. At a minimum, such insurance shall include Cyber Liability Insurance, including coverage for Data Breach, with a limit of not less than two million US dollars ($2,000,000) and Umbrella Liability Insurance covering excess liability over a General Liability policy with a limit of not less than two million US dollars ($2,000,000) per occurrence.
The following definitions shall apply:
i. “Covered Data” means, in any form, format or media that is, (1) any Confidential Information and (2) any Subscriber Data or Personally Identifiable Information (PII).
ii. “Subscriber Data” means (i) all data delivered to Provider by or on behalf of Subscriber and/or its Affiliates in connection with the use of the AMS, and (ii) all data collected, created, or generated through the use of the AMS by or on behalf of Subscriber. Examples of Subscriber Data include members, donors, financials, product, and reports.
iii. Personally Identifiable Information (“PII”) means any information that, alone or in combination with other information, relates to an identifiable individual. PII includes first and last name, Social Security number, telephone number, e-mail address, home address, driver’s license number, passwords, and financial account information (such as credit or debit card numbers).
v. “Subscriber Confidential Information” means information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed under this Agreement, whether oral, written, or electronic. Without limiting the generality of the foregoing, Subscriber Confidential Information includes (whether or not marked or identified as confidential, proprietary, or trade secret) the terms and conditions of this Agreement, Covered Data, reports and materials generated by Subscriber using the AMS, financial, accounting, or tax information, pricing information, information relating to Subscriber’s current, past, or prospective members and Subscribers, member and Subscriber lists, business and marketing plans, and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate it is of confidential, proprietary or trade secret nature.
A. OWNERSHIP OF SUBSCRIBER DATA. Subscriber shall be the sole and exclusive owner of all right, title, and interest in and to the Covered Data. Nothing in this Agreement shall be construed in any way as restricting Subscriber’s right to full use and enjoyment of Covered Data in any manner as determined by in this Agreement (without limitation) (i) Subscriber’s right to create, reproduce, store, and share with any person or entity, texts, reports, lists, or other compilations of Covered Data produced, downloaded, or compiled using the Software, and (ii) Subscriber’s right to work with an alternative provider of services to implement a successor data management system in advance of any anticipated termination of this Agreement for any reason.
B. PROVIDER’S USE OF COVERED DATA. Subscriber hereby grants to Provider a limited, non-exclusive license to use Covered Data solely as needed to perform Provider’s obligations under this Agreement. Provider shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Covered Data for Provider’s own purposes or for the use or benefit of any person or entity other than Subscriber and/or its Affiliates. Subscriber agrees that Provider may utilize data capture and analysis tools to monitor and improve the AMS and Provider services, provided, however that any such use will only use data that has been scrubbed to preclude its attribution to a specific data subject without the use of additional information which shall be kept separate subject to technical and organizational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.
C. COVERED DATA BACKUP. Provider shall maintain a backup of Covered Data and mechanisms for timely recovery of such data in the event the AMS is interrupted, or the primary data storage becomes unavailable. Full backups of Subscriber’s Covered Data are run on daily basis and incremental backups every two hours.
D. COVERED DATA DOWNLOADS AND RETURN. Upon request and payment of labor and delivery fees, if applicable, Provider shall, within five (5) business days of Subscriber’s request, deliver to Subscriber or such other person or entity as directed by Subscriber, an extraction of Covered Data.
Impexium client data is protected by our Data Protection & Privacy standards, which can be found at this link: https://impexium.com/data-protection-privacy/
Subscriber agrees that the terms and conditions of this Agreement, the AMS, and its underlying software care, technology and features roadmap, the Providers pricing structures are Confidential and trade secret information property of Provider (“Confidential Information”.) Provider agrees that Covered Data shall be considered Subscriber’s Confidential Information.
A. Confidential Information will remain the property of the disclosing party. The receiving party agrees: (i) to hold disclosing party’s Confidential Information in strict confidence; (ii) to limit disclosure of disclosing party’s Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the disclosing party’s Confidential Information for the purposes of this Agreement; (iii) not to disclose any of disclosing party’s Confidential Information to any third party; (iv) to use disclosing party’s Confidential Information solely in accordance with the terms of this Agreement in order to carry out its obligations or exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with the disclosing party in every reasonable way to cease such unauthorized use or disclosure.
B. Except with respect to PII, the confidentiality obligations under this Section 8 will not apply to information that the receiving Party can demonstrate: (i) at the time of disclosure is generally available to the public; (ii) has become generally available to the public through no breach of this Agreement or other wrongful act by the receiving Party; (iii) is independently developed by the receiving party without regard to the Confidential Information of the other Party; or (iv) is required to be disclosed by Law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving Party shall attempt in good faith to furnish prompt written notice of such required disclosure to the disclosing Party and reasonably cooperate with the disclosing Party, at the disclosing Party’s expense, in any effort made by the disclosing Party to seek a protective order or other appropriate protection of its Confidential Information.
C. The Parties agree that any breach of the confidentiality obligations set forth herein may cause the disclosing Party substantial and irreparable damages; therefore, if the receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing Party, the disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive and equitable relief.
A. Provider represents and warrants that the AMS will be available to Subscriber in accordance with the service level agreements set forth in Section 2, that the AMS will perform in all material respects in accordance with the help documentation published on the AMS support portal. Provider further represents and warrants that: (i) it is the owner of the software or, if not the owner, it has any and all rights necessary to use the software and permit use by Subscriber as described in this Agreement, and (ii) neither the software or documentation, nor the use of the AMS or documentation by Subscriber, will violate or infringe upon any third party’s intellectual property, trade secret, or other proprietary rights. The Software may contain features designed to interoperate with third-party products or services (for example, through a Marketplace or otherwise). Any acquisition or integration by Subscriber of such third-party products and services, and any exchange of data between Subscriber and third-party products or services is solely between Subscriber and the applicable third-party. Provider does not guarantee, warrant, or support third-party products or services or guaranty their continued availability or integration with the AMS.
B. Subscriber and Provider each represents and warrants that it, and any individual signing on its behalf, has full authority to (i) execute this Agreement and (ii) bind itself to this Agreement.
C. DISCLAIMER: EXCEPT FOR THE WARRANTIES MADE HEREIN, PROVIDER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, USEFULNESS OR RESULTS OF ANY RECOMMENDATIONS MADE VIA THE AMS. THERE IS NO WARRANTY THAT INFORMATION WITHIN THE AMS, PROVIDER’S EFFORTS, OR THE AMS ITSELF WILL FULFILL ANY OF SUBSCRIBER’S PARTICULAR PURPOSES OR NEEDS. EXCEPT AS SPECIFIED HEREIN, THE AMS IS PROVIDED “AS IS.” THE WARRANTIES PROVIDED UNDER THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
A. Provider will indemnify, defend and hold Subscriber and its subsidiaries, Affiliates, and their respective officers, directors and employees, harmless from and against any claim, demand, action, liability, loss, fine, penalty, cost or expense (including, without limitation, reasonable attorney’s fees) arising from or relating to: (i) any allegation that the AMS or documentation infringes any patent, copyright, trademark, trade secret, or any other proprietary or intellectual property right of a third party, or (ii) any Data Breach not caused by Subscriber’s negligence. Provider’s indemnification obligation under (i) does not cover third party claims solely arising from: (1) modifications to the AMS by anyone other than Provider or its authorized agents and contractors; (2) except as reasonably necessary to use the AMS as contemplated under this Agreement, use of the AMS by Subscriber in combination with other software or equipment not provided by Provider, where the AMS, but for such combination, would not be infringing; or (3) Subscriber’s failure to use the AMS in accordance with the terms and conditions set forth in this Agreement.
B. Subscriber will indemnify, defend and hold Provider and its subsidiaries, affiliates, officers, directors and employees harmless against (1) any claim or demand by a third party, including without limitation reasonable attorney’s fees, alleging that any Covered Data infringes any intellectual property rights of a third party, or due to Subscriber’s violation of privacy or spamming laws or regulations; or (2) Data Breach caused by Subscriber’s negligence or intentional misconduct.
C. Claims for indemnification shall be made promptly and the claimant shall cooperate in the defense of the claim, including by providing such documents and records requested by indemnitor related to or arising from the claim or the defense of the claim. Failure to provide prompt notice of a claim shall relieve the indemnifying Party of its obligations whenever such failure prejudices the indemnifying Party’s ability to defend the claim.
A. Subscriber acknowledges that it alone is responsible for the results obtained from its use of the AMS, including without limitation the completeness, accuracy and content of such results.
B. TO THE EXTEND PERMITTED BY LAW, PROVIDER’S LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS), SHALL BE LIMITED TO THE TOTAL AMOUNT DUE FROM SUBSCRIBER FOR THE SUBSCRIPTION FEE FOR THE INITIAL SUBSCRIPTION TERM OF THIS AGREEMENT, WHETHER OR NOT PAID BY SUBSCRIBER.
C. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
A. The initial term of the SaaS Subscription (“Initial Subscription Term”) shall be as defined on the Cover Page of this Agreement. Subscriber’s annual Subscription shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless either party provides notice of termination at least ninety (90) days prior to the end of the initial term or relevant renewal period.
B. If either Party believes that the other Party has failed in any material respect to perform its obligations under this Agreement, then that Party may provide written notice to the defaulting Party describing the alleged failure in reasonable detail. If the defaulting Party does not cure or begin to cure (and cure within a reasonable time thereafter) the material failure within thirty (30) calendar days after receiving such written notice, then other Party may terminate this Agreement by written notice to the Party in default. Termination of this Agreement will be in addition to, and not in lieu of, other remedies available to the terminating Party.
C. Either Party may, at its option, terminate this Agreement upon six (6) months written notice to the other Party in the event that: (i) the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding; (iii) a petition in bankruptcy is filed against the other Party and such petition is not removed within ninety (90) days after such filing; (iv) a receiver is appointed to manage the other Party’s assets or there is an assignment for the benefit of the other Party’s creditors.
D. Upon termination or expiration of this Agreement, Provider shall deliver all Covered Data to Subscriber or to such other person or entity as directed by Subscriber. Labor, material, and delivery fees may apply and must be paid in advance of Provider of delivering Covered Data. After Subscriber has notified Provider that Subscriber has received its Covered Data, Provider will comply with any direction from Subscriber to destroy any copies of Covered Data remaining in Provider’s possession, custody, or control and will certify to Subscriber in writing that such destruction is complete. With regard to all materials other than Covered Data, Provider and Subscriber shall each deliver to the other, or at the election of the Party to whom delivery would otherwise be made, destroy, all documents, data, and other information that were provided in connection with this Agreement, including, in the case where Provider is the requesting Party, Confidential Information. Each of Provider and Subscriber will return or destroy all copies of said documents, data and other information within thirty (30) days of such termination or expiration. Upon either Provider or Subscriber’s request, the other shall deliver a certification of such return or destruction to the requesting Party.
A. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflicts of laws rules.
B. Disputes. In the event of a dispute arising out of this agreement, the Parties agree to submit the dispute to arbitration in Fairfax County, Virginia before a recognized, established, alternative dispute resolution (ADR) firm agreed to by the Parties. The arbitration shall be conducted in accordance with the discovery rules of the Federal Rules of Civil Procedure and in accordance with the Federal Rules of Evidence (collectively, the “Rules”), unless modified by agreement of the Parties. In the event the Parties are unable to mutually agree upon an ADR firm, the Parties shall submit their proposed arbitration firms to the courts of the Fairfax County, Virginia, for selection. The Parties agree that the claim period for a dispute is one year from the event giving rise to the dispute.
A. Any notice or other communication required or permitted to be made or given by either Party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; or (ii) one business day after being sent by express courier service. All notices will be sent to the other Party at its address as set forth on the Cover Page (in the case of Provider, “Attn: Legal Department”) or at such other address as such Party will have specified in a notice given in accordance with this Section 10.
B. Subscriber shall not assign Subscriber’s rights or obligations under this Agreement without the prior written consent of Provider and any such purported assignment shall be void. Notwithstanding the foregoing, Subscriber may assign this Agreement in its entirety with Provider’s consent, to Subscriber’s Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Subscriber’s assets.
C. Any conduct by Subscriber that in Provider’s discretion restricts or inhibits another subscriber’s use of the AMS is expressly prohibited. Subscriber shall not interfere with or disrupt the integrity or performance of the Software or that data contained therein, or attempt to gain unauthorized access to the AMS or its underlying applications, services, related systems or networks.
D. This Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.
E. The section headings contained herein are for reference only and shall not be considered substantive parts of this Agreement.
F. The provisions of this Agreement are severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. If any provision of this Agreement is declared to be unenforceable, a court or arbitrator shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserve the original intention and economic position of the Parties.
G. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If either Party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the Party may have under this Agreement.
H. Provider and Subscriber are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties.
I. Subject to Subscriber’s prior approval, Provider may issue a press release (“Press Release”). Either Party may use the company name and/or logo of the other Party on such Party’s public web sites, electronic communications and promotional materials solely to disclose the Provider-Subscriber business partnership; provided, however, that (i) when using Subscriber’s name and/or logo, Provider will comply with Subscriber’s usage guidelines, as Subscriber may provide to Provider and amend from time to time; and (ii) when using Provider’s name and/or logo, Subscriber will comply with Provider’s usage guidelines, as Provider may provide to Subscriber and amend from time to time.
J. Neither Party will hire, employ, or contract for services, or attempt to hire, employ or contract for services, directly or indirectly through a third party, any current employee of the other Party without the prior written consent of the other Party, during the term of the Agreement and for a period of twelve (12) months after termination of this Agreement. Either Party may hire any prior employee or agent of the other Party so long as said employee or agent has been terminated from such relationship with such other Party for at least twelve (12) months. Notwithstanding the foregoing, nothing shall prohibit either Party from hiring a current or former employee of the other Party who responds to a general advertisement for employment.
K. This Agreement, including all Exhibits hereto, represents the entire agreement and understanding between Subscriber and Provider with respect to the subject matter hereof, superseding all previous oral or written communications, representations or agreements regarding such subject matter. This Agreement may be modified only by a writing signed by both Parties.
L. Force Majeure. Neither party shall be liable hereunder to the other party nor shall a party be in default by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, terrorism, criminal acts of third parties, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause (whether or not similar to any of the foregoing) beyond the reasonable control of such party (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the Force Majeure Event continues, provided such party.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Documentation” means the system documentation, help documentation, release notes which describe the features, functionality, configuration, and capabilities of the AMS.
“Provider” means the AMS company named in the Agreement.
“Subscriber” is defined as the legal entity signing the Agreement referencing these Terms and Conditions.
“Term” means the Initial Term and any renewal terms during which a specified number of Users are authorized to use the Service pursuant to the Agreement.