LICENSED PRODUCT AND SERVICES AGREEMENT
Last Updated: June 2021
Any Agreement between customer herein referred to as Licensee, and DonorNinja, an Illinois corporation, is effective upon the date signed may be terminated by the Licensee upon thirty (30) days written notice.
Fees and Payment Schedule
Recurring Monthly Fees will be per invoiced to Licensee on a Monthly basis on the business day nearest the day of the executed agreement and will become due and payable upon receipt. Fees will be calculated based on DonorNinja package selected and subject to SUPPLEMENTAL TERMS AND CONDITIONS, Section 1, PRICING AND PROFILE INCREASES. Additional fees for add on services, professional services and third-party integrations will be invoiced as per the above or as agreed to between parties.
1.1 Documentation means all written user information, whether in electronic, printed or other format, delivered or made available to Licensee by DonorNinja with respect to Licensed Product, now or in the future, including instructions, manuals, training materials, and other publications that contain, describe, explain or otherwise relate to Licensed Product.
1.2 Embedded Applications means software developed by third parties that may be embedded in or bundled with the software developed by DonorNinja as part of Licensed Product.
1.3 Hosting Services means the hosting of the Licensee’s license to the Licensed Product and Third-Party Software by DonorNinja or its hosting providers from a server farm that is comprised of application, data and remote access servers used to store and run the Licensed Product and Third Party Software, including associated offline components.
1.4 Licensed Product(s) means all software (including Embedded Applications) and subsequent versions provided under Support Services and all related Documentation licensed to Licensee pursuant to this Agreement, now or in the future; provided, however, that Licensed Product shall not include any Third-Party Software.
1.5 Profile Counts means foundational constituents unitized at the donor level. This may include volunteers who are not donors if applicable module is enabled, but volunteers which are members, donors or any combination of constituent types will not duplicate against the profile count.
1.6 Professional Services means data conversion, implementation, site planning, configuration, integration and deployment of the Licensed Products or Hosting Services, application development, training, project management and other consulting services.
1.7 Support Services is defined in section 3.1. of the Support and Services Policies attached hereto.
1.8 Services means Support Services, Hosting Services and Professional Services collectively.
1.9 State Reporting Code (or SRC) means Licensed Product that may be available to Licensee to assist Licensee in meeting specific state reporting requirements and that is designated as State Reporting Code by DonorNinja, where applicable, for a fee and with advanced approval by an authorized DonorNinja representative.
1.10 Third Party Software means any software product designated as Third-Party Software by DonorNinja, and any related documentation supplied to Licensee. Any product designated as Third-Party Software is licensed by an entity other than DonorNinja, under different license terms than those set forth herein. Third Party Software is different from Embedded Applications in that DonorNinja licenses the Embedded Applications to Licensee as part of Licensed Product (but in some cases, such Embedded Applications may be subject to additional license terms as identified herein). DonorNinja is not the licensor of Third-Party Software.
2.2 Copies. Licensee shall not make copies of, otherwise reproduce, or allow any unauthorized and/or third-party access to any Licensed Product, except that: (a) Licensee may make copies of the software component of any Licensed Product, in executable code form, only for backup or archival purposes; and (b) Licensee may make unlimited printed copies for Licensee’s internal use of any Documentation delivered by DonorNinja to Licensee. Licensee shall retain and include all of DonorNinja’s or any third parties’ copyright and other proprietary rights notices on all copies of Licensed Product. Licensee shall not otherwise reproduce Licensed Product.
2.3 Supplemental Terms and Conditions. The product-specific terms and conditions set forth in the Supplemental Terms and Conditions attached hereto are incorporated herein by reference. These additional terms and conditions are applicable to the extent that Licensee licenses any of the specific products or modules listed therein.
3.1 Restrictions on Use of the Licensed Product and Services. Licensee shall use the Licensed Products and Services only for the internal business purposes of Licensee. Licensee shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Licensed Products or Services; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Licensed Products or Services, in whole or in part, for competitive purposes or otherwise; (iii) write or develop any derivative works based upon the Licensed Product or Services; (iv) modify, adapt, translate or otherwise make any changes to the Licensed Products or Services or any part thereof; (vi) use the Licensed Products or Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without DonorNinja prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Licensed Products or Services; or (viii) otherwise use or copy the same except as expressly permitted herein. Licensee shall not transfer, assign, provide or otherwise make Licensed Products, Services or this Agreement available to any other party without the prior written consent of DonorNinja. Any attempted sublicense, assignment or transfer of any rights, duties or obligations by Licensee in violation of this Agreement shall be void. Licensee shall hold DonorNinja harmless from claims for damages resulting from Licensee’s misuse of the Licensed Products and Services, including DonorNinja’s intellectual property.
3.2 Intellectual Property Rights. Licensed Product is proprietary to DonorNinja and/or third parties and is protected by copyright, trade secret, and other intellectual property rights. The placement of a copyright notice on any portion of Licensed Product does not mean that such portion has been published and will not derogate any claim of trade secret protection for the same. Title to all complete or partial copies, and all applicable rights to copyrights, patents, trademarks and trade secrets in Licensed Product, are and shall remain the property of DonorNinja or their other owners, as applicable.
3.3 Confidentiality. Licensee agrees to keep Licensed Product confidential and to prevent unauthorized disclosure or use of Licensed Product in Licensee’s possession. Licensee shall notify DonorNinja immediately in writing of any unauthorized use or distribution of Licensed Product of which Licensee becomes aware and shall take all steps necessary to ensure that such unauthorized use or distribution is terminated. For any Licensed Product for which DonorNinja makes available passwords or other user identification technology to access such Licensed Product, Licensee shall advise all users of such passwords or other user identifications that such passwords or user identifications must be maintained in confidence and not transmitted or shared.
11.1 Termination for Breach. DonorNinja shall have the right to suspend performance under this Agreement in the event that Licensee is in breach of any of its obligations under this Agreement. In addition, either party shall have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that DonorNinja shall have the right to terminate this Agreement immediately upon written notice in the event that Licensee breaches any of its obligations under Section 3. Licensee further acknowledges that, as breach of the provisions of Section 3 could result in irreparable injury to DonorNinja, DonorNinja shall have the right to seek equitable relief against any actual or threatened breach thereof, without proving actual damages.
11.2 Effects of Termination. In the event of any termination of all or any portion of this Agreement, Licensee shall not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. In addition, the provisions of Sections 3, 5, 6, 9, 11, 12 and 13 shall survive termination of this Agreement. Immediately upon any termination of a license for any Licensed Product under this Agreement, Licensee shall, at its own expense, either return to DonorNinja or destroy all copies of such Licensed Product and associated Third Party Software in its possession or control, and shall forward written certification to DonorNinja that all such copies of such Licensed Product and Third Party Software have either been destroyed or returned to DonorNinja.
11.3 Liquidated Damages. In the event that Licensee enters into a multi-year contract with DonorNinja and Licensee terminates the contract or any portion thereof, Licensee agrees to pay DonorNinja the remaining sum due to DonorNinja through the stated term of the contract as liquidated damages, as actual damages being impossible to calculate. This clause shall not apply in the event Licensee terminates this Agreement as a result of DonorNinja’s breach in accordance with Subsection11.1 herein. Notwithstanding the foregoing, Licensee shall not be liable for said liquidated damages in the event that: (i) Licensee provides DonorNinja at least thirty (30) days’ advance notice of termination prior to the effective date anniversary; and (ii) said termination is a result of the non-appropriation of funds for Licensee’s contract. Licensee shall not utilize this clause as a right to terminate the contract for convenience. DonorNinja reserves the right to seek documentation evidencing the non-appropriation of funds.
13.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINIOS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement shall not be subject to the Uniform Computer Information Transactions Act.
13.2 Compliance Verification. During the term of the Agreement and for a period of one year following its termination, DonorNinja shall have the right to verify Licensee’s full compliance with the terms and requirements of the Agreement. Licensee shall (A) provide any assistance reasonably requested by DonorNinja or its designee in conducting any such audit, including installing and operating audit software, (B) make requested personnel, records, and information available to DonorNinja or its designee, and (C) in all cases, provide such assistance, personnel, records, systems access and information in an expeditious manner to facilitate the timely completion of such compliance verification. If such verification process reveals any noncompliance, Licensee shall reimburse DonorNinja for the reasonable costs and expenses of such verification process incurred by DonorNinja (including but not limited to reasonable attorneys’ fees), and Licensee shall promptly cure any such noncompliance; provided, however, that the obligations under this section do not constitute a waiver of DonorNinja’s termination rights and do not affect DonorNinja’s right to payment for Services and interest fees related to usage in excess of the quantities purchased.
13.3 General Provisions. Neither party shall be held liable to the other party for failure of performance where such failure is caused by supervening conditions beyond that party’s control, including acts of God, civil disturbance, strikes or labor disputes. If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, this Agreement shall be enforced to the maximum extent possible to effectuate the original express intent of the parties. Licensee may bring no action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has arisen. Licensee agrees that the terms of this Agreement, including all pricing for DonorNinja’s products and services, shall be kept confidential and not disclosed to any third party without the prior written consent of DonorNinja.
13.4 Facilities. Licensee acknowledges that certain Services are intended to be performed by DonorNinja off-site (e.g., through remote communication capabilities). If any portion of the work will be performed on Licensee’s premises, Licensee agrees to provide appropriate access to utilities, work space and other on-site accommodations reasonably necessary to enable DonorNinja to perform such work.
13.5 Confidentiality. DonorNinja agrees to use commercially reasonable efforts to maintain the confidentiality of Licensee confidential information that is disclosed to DonorNinja in connection with the performance of services, and to use such Licensee confidential information solely for purposes of performing services hereunder. DonorNinja shall require its employees, agents and subcontractors performing work hereunder to do likewise. For purposes of this Section, “Licensee confidential information” shall mean any constituent or personnel data belonging to Licensee, or any other Licensee information or data labeled or identified as confidential at the time of disclosure, provided, however, that this definition and the obligations of this Section shall not extend to any information that: (a) is or becomes publicly known through no fault or negligence of DonorNinja; (b) is or becomes lawfully available from a third party without restriction; (c) is independently developed by DonorNinja; or (d) is disclosed without restriction by Licensee to any third party at any time.
13.6 Limited License. Licensee grants to DonorNinja a non- exclusive, royalty free license, to use equipment, software, Licensee data or other material of Licensee solely for the purpose of performing its obligations under the Agreement. However, DonorNinja may use and distribute the Licensee data for any lawful purpose outside the scope of the Agreement, provided always that such Data must be aggregated and/or de-identified.
13.7 Export. Without in any way limiting the restrictions on transfer set forth elsewhere in this Agreement, Licensee specifically agrees that Licensee will not, directly or indirectly, export or transfer any export- controlled commodity, technical data or software: (a) in violation of any laws, regulations, rules or other limitations imposed by any government authority; or (b) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or other approvals.
13.8 U.S. Government Restricted Rights. Licensed Product is a “commercial item” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and all as amended from time to time. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §227.7202 and 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government end users acquire Licensed Product only with those rights set forth herein.
13.9 Entire Agreement. This Agreement, inclusive of the Supplemental Terms and Conditions and the Support and Services Policies incorporated herein, or any addendums, amendments, and/or exhibits mutually executed and attached hereto, constitutes the complete and entire agreement between the parties with respect to its subject matter, and supersedes all prior discussions, understandings, arrangements, proposals and negotiations with respect to same. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Licensee with respect to Licensed Product or any related support or services, and DonorNinja hereby refuses any such different or additional provisions in purchase orders or other documents. By mutual agreement of the parties, this Agreement is effective upon receipt and supersedes all prior Agreements entered into by the parties, the parties’ agents, and/or the parties’ previous affiliates. This Agreement shall not be modified or amended without the written agreement of both parties.
SUPPLEMENTAL TERMS AND CONDITIONS
SUPPORT AND SERVICES POLICIES
Errors shall mean a reproducible failure of Licensed Product to operate in accordance with its standard Documentation, despite the proper installation and use of Licensed Product in a proper operating environment and on hardware and system software sufficient to meet DonorNinja’s then-current minimum requirements, which are subject to change as New Versions are released. User mistakes are not Errors within the meaning of these Policies. Errors may be due to problems in Licensed Product, the Documentation, or both.
Fix shall mean a patch, service pack or corrective update of Licensed Product that DonorNinja may prepare in its discretion on an interim basis, prior to issuance of a New Version, to correct programming Errors that prevent or obstruct normal operation of Licensed Product in accordance with the applicable then-current Documentation.
New Products shall mean new products, programs or modules developed by DonorNinja that provide features, functions or applications not included in the Licensed Product originally licensed by Licensee and for which additional license fees apply as determined by DonorNinja. A New Product may be usable with or in addition to the Licensed Product originally licensed by Licensee. New Products will be licensed to Licensee under the terms of DonorNinja’s then-current license agreement only after payment of applicable fees.
New Version shall mean an updated version of Licensed Product issued by DonorNinja, which may include Fixes, together with such other modifications, updates, enhancements and improvements to Licensed Product that DonorNinja may, in its discretion, develop and deem ready for distribution and that DonorNinja standardly provides to all customers with a current support subscription to such Licensed Product.
Support Services shall mean those support services described in Section 3.1 below that will be provided hereunder with respect to Licensed Product during Licensee’s Support Term.
Support Term shall mean the length of time Support Services are to be provided hereunder and for which Licensee has paid any applicable Support Services fees, including any initial Support Term and any renewal Support Terms.
Telephone and E-mail Support shall mean telephone and e-mail support services, available Monday through Friday, during DonorNinja’s normal business hours, exclusive of DonorNinja’s holidays, regarding Licensee’s use of Licensed Product and any problems that Licensee experiences in using Licensed Product.
3.1 Support. Support Services, if so purchased, shall include: (a) Telephone and E-mail Support; (b) access to an online support website, as maintained by DonorNinja for customers maintaining a current support subscription; (c) Fixes, as developed and made generally available by DonorNinja in its discretion to address Errors that Licensee is experiencing in using Licensed Product; and (d) New Versions, as developed and made generally available by DonorNinja. Support Services do not include New Products. DonorNinja determines, in its sole discretion, what constitutes a New Product (for which additional license fees apply), and what improvements and enhancements to existing Licensed Product functionality are to be included in a New Version (and are therefore provided at no charge to customers with a current support subscription).
3.2 Custom Programs. For any custom programs developed for Licensee by DonorNinja, Support Services are available only on a time and materials basis at DonorNinja’s current rates and charges for these services; support for custom programs is not included in Support Services. In addition, to the extent that Licensed Product includes any functionality that allows Licensee to customize screens or reports, DonorNinja will support the application infrastructure utilized to create such customizations but will not be responsible for supporting any such customizations.
3.3 Requisite Training. In order to receive Support Services described herein, Licensee must purchase appropriate training regarding the use and operation of Licensed Product. Telephone and E-mail Support may be limited to a specified number of authorized representatives of Licensee who have been appropriately trained.
(12) months of such payment, unless otherwise agreed in writing by DonorNinja; any portion of any prepaid services amount that has not been used by Licensee toward services actually rendered within such twelve (12) month period shall be forfeited.
III. HOSTING SERVICES