GiftWorks Subscription Agreement

GiftWorks Subscription Agreement

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This Subscription Agreement (“Agreement”) is entered into by and between FrontStream Holdings, LLC (the “Company”) and you and consists of the terms and conditions set forth below. By paying the fees required to access the Company’s Products and Services you acknowledge your assent to the terms of this Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SUBSCRIBING TO OR USING THE PRODUCTS OR SERVICES. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT USE THE COMPANY’S PRODUCTS AND SERVICES.

The Company may update this Agreement from time to time and the latest version will be posted on the Site. By accessing the Site or using the Services, you agree to be bound by the Agreement in its then current form. Accordingly, you should periodically review the current Agreement as it appears on the Site.

1. Definitions
“Authorized User” means your employees and individuals designated and authorized by you to access and use the Products and Services solely for your internal business purposes.

“Desktop Installed Version” means an installed version networkable to a server housed at your location or to a desktop hard drive.

“Giftworks Anywhere Version” means an online remote hosted version of the Desktop Installed Version which uses Citrix technology.

“Products” means all software and other applications and all modifications, updates, enhancements, or replacements for any of the foregoing, furnished by Company to you related to Donor Management version of your choice, Desktop Installed Version or Giftworks Anywhere Version. Each Product selected by you and the corresponding pricing shall be set forth in the Subscription Package.

“Services” means the online interactive databases, reports, and other materials provided by the Company hereunder related to Donor Management.

“Site” means Company’s website found at www.frontstream.com.

“Subscription Package” means the separate package selected by you of the Desktop Installed Version or the Giftworks Anywhere Version to be provided by Company to you and your Authorized Users.

“Term” means the time period during which you are authorized to access and use the Company’s Products and Services as specified in the Subscription Package.

2. Services.

2.1 Use. Subject to all terms and conditions of this Agreement, which may be revised at Company’s discretion from time to time, you and your Authorized Users may access and use the Products and Services available through the Site during the Term. Access to and use of the Site are subject to the terms and conditions of this Agreement and are permitted by Company solely for your internal use and benefit for the purposes of Donor Management. Specifically, the Products and Services are designed to facilitate tracking volunteers, events, third party integrations, FrontStream integrations, smart list querying tools, donors, tracking donations, making solicitations, creating receipts and otherwise generally maximizing income for non-profit entities (“Donor Relationship Management”). Any other access or use is strictly prohibited. No rights are granted to any of the Products or Services except as explicitly set forth herein. You are prohibited from selling or brokering the Products and/or Services to any person or entity that is not an Authorized User or sharing all or any part of the Products and/or Services with any party who is not an Authorized User.

2.2 Authorized Users. Company will provide you with: (i) one administrative login per user (for the Giftworks Anywhere Version); or (ii) software keys based on the number of records you have (for the Desktop Installed Version), to be used by your account administrator (“Administrator”). No person may access or use the Products or Services unless they are an Authorized User. The Administrator is authorized to allow use by Authorized Users. The Administrator shall be responsible for maintaining the security of your access to the Products and Services and preventing access by any party who loses status as an Authorized User. You are responsible for ensuring Authorized Users’ compliance with the Agreement, and you shall be liable for all acts or omissions by Authorized Users in violation of this Agreement, and for any damages incurred as a result thereof. Company may disable access to the Products and Services at any time in Company’s sole discretion if Company has any reason to believe that an Authorized User has violated the terms of this Agreement or otherwise poses a security risk.

2.3 Provision of Services. Subject to and conditioned on you and your Authorized Users’ compliance with the terms and conditions of this Agreement, Company will provide the Products and Services to you for the fees set forth in the Subscription Package. The Company will allow your Authorized Users to access the Products and Services in accordance with the terms set forth herein. The Products and Services to be provided are set forth in the Subscription Package as detailed on the FrontStream website.

2.4 Accuracy, Completeness and Timeliness of Information. You are solely responsible for the accuracy and completeness of any materials that you add to the Products and Services. The Company undertakes no obligation and has no responsibility for cross-checking, verifying or updating any of the materials you add. Company reserves the right to delete or modify any materials that you submit which the Company believes in good faith after due inquiry pose a risk to the Products, Services or any data that you have submitted.

2.5 System Requirements/Users. You agree that you are solely responsible for checking and reviewing your system requirements according to FrontStream’s website in order for the Product or Service to function properly. You understand and agree that:
(i) For Desktop Installed Version you will have access to unlimited number of users as long as all the computers are connected to a network or to a desktop hard drive. Software keys are based on the number of records you have.
(ii) For the Giftworks Anywhere Version you will have access to one assigned user.

2.6 Authorized Users. You shall take all reasonable precautions to safeguard the Products and Services, to prevent any copies or disclosures thereof in violation of this Agreement, and to prevent any unauthorized access thereto. You are solely responsible for maintaining the confidentiality and security of passwords created by you, and hereby agree that, without the express written consent of Company, no password will be disclosed to any person other than Authorized User. You accept full responsibility for any use of or action taken under your passwords and agree to and hereby release Company from any and all liability concerning such activity. You agree to promptly notify Company of any actual or suspected loss, theft or unauthorized use of any of your password, the Products, the Services, and/or data, information or documentation transmitted via the Services. Company has no obligation to inquire as to the authority or propriety of any use of or action taken under your password and will not be responsible for any loss to you arising from any such use or action or from your failure to comply with these provisions. To notify company of any unauthorized use, contact the Company immediately at https://frontstream.zendesk.com.

2.7 Noncompetition. You hereby agree that you will not, directly or indirectly, for your own benefit or for the benefit of others, develop, distribute, market, sell, license or otherwise offer to any third party any products, services or materials that are similar to, and in competition with, Company’s Products and/or Services. You acknowledge that if you engage in any of the foregoing prohibited activity, Company shall, in addition to all other rights available under applicable law, have the right, at its sole option, to do any or all of the following: (i) immediately terminate this Agreement and all duties and obligations of Company hereunder, (ii) declare all amounts due and thereafter to become due to be immediately due and payable in full, and (iii) discontinue your access to and use of all Products and Services.

2.8 Telephone Support. Your Account Administrator may contact FrontStream’s technical support specialist (TSS) Customer Care team should support may be needed. If a team member is not available, your Account Administrator may leave a message with the message center and Customer Care will promptly return the phone call.

3. Term.

Except as otherwise provided herein, the Term shall commence on the date that Company accepts your subscription request by providing you with an administrative login or software key, depending on the version of your choice, and shall terminate on the last day of the period selected upon subscribing to the Services. The parties may agree to renew this Agreement for a mutually-agreed upon period. Upon the conclusion of the Term, access to use the Products and Services shall terminate unless you continue using the Products and/or Services and paying the corresponding pricing the Term shall renew for another period as originally selected upon subscribing to the Services.

4. Payment.

Charges for the Services are due and payable as set forth in your Subscription Package. Accounts unpaid thirty (30) days after date of invoice may have their access interrupted. Such interruption does not relieve you from the obligation to pay the past charges. Accounts in default are subject to an interest charge of 1.5% per month on the outstanding balance or the highest rate allowed by law. You agree to reimburse Company for all collection costs (including reasonable attorneys’ fees) and interest for any overdue amounts.

You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Company must pay based on the Products and Services you ordered, except for taxes based on Company’s income.

5. Compliance with Laws. You agree that your use of the Products and Services will be in compliance with all applicable laws and regulations, and that you will not use, or knowingly allow any other person to use, the Products or Services for or in connection with, any illegal purpose or harassing activity or in contravention of this Agreement. Specifically, you shall comply with the CAN-SPAM Act and applicable state privacy laws. You shall not use a false email or postal address, impersonate any person or entity or otherwise mislead as to the origin of the content, email or other communication or transmission. For communications covered by the CAN-SPAM Act, you shall also provide a mechanism that allows a recipient to opt-out of, or end, any future email messages from the sender and shall comply with any such requests.

6. Confidentiality. You acknowledge and agree that the Services, Products, and the form, format, mode or method of compilation, selection, configuration, presentation or expression thereof on the Site, trade secrets, and other data (the “Confidential Information”) are the confidential and proprietary information of Company. You shall receive and maintain the Confidential Information as a confidential disclosure. You shall not disclose all or any part of the Confidential Information to any other person or entity, except as necessary to receive or implement the Products and Services as permitted hereunder and in accordance with the terms of this Agreement. You shall not use or permit any use of all or any part of the Confidential Information or attempt to sell, assign, convey, lease, sub-license, commercially exploit, and/or otherwise market or use all or any part of the Confidential Information in any way or manner, except as expressly permitted in this Agreement. Except as otherwise permitted in this paragraph, you may disclose the Confidential Information as follows: (i) with Company’s prior express written consent in each instance of disclosure, or (ii) if you are required by law to disclose the Confidential Information, but only after prompt notice to Company of such disclosure and sufficient time to review any proposed disclosure, such that Company has a reasonable opportunity to oppose or prevent a disclosure, and only to the extent so required. Company agrees not to disclose any of the information you provide to it, except as necessary to perform its duties hereunder; provided, however, that Company reserves the right to use your aggregated, de-identified data for its own purposes, including but not limited to performance of its obligations under this Agreement and optimization of its Products and Services.

7. Ownership of Intellectual Property.
To the fullest extent permitted or available under applicable law, Company hereby asserts and claims, and you hereby recognize and acknowledge, Company’s ownership of all right, title and interest in and to Confidential Information, Products, and Services provided hereunder. No right, title or interest, except for the limited use license set forth herein, is conveyed or transferred to you in any way or manner by this Agreement or in or by any schedule or addenda hereto. You shall not remove any copyright, trademark, or other confidentiality or proprietary notices from the Products or Services. You shall not remove, alter, modify or deface any copyright notice, trademark, logo, name, or other confidentiality or proprietary notices from the Products or Services, including, but not limited to, those which identify Company or any other party as the source of origin of such Products and/or Services, information or other documentation. You shall not take any actions which indicate that Company is not the source of origin of the Products and/or Services. Any suggestions or recommendations you make regarding the Products or Services shall become the exclusive property of Company.

8. Warranties; Disclaimers; Exclusive Remedy.

Company warrants to you that: (i) it has the right to provide the Products and Services to you, and (ii) the Services will perform in accordance with the descriptions set forth in the Subscription Package. If the Services provided for any given month during the Term are not performed as warranted, then you must provide written notice to Company no later than five (5) business days after such event to allow Company to correct the Services. Company shall provide corrected Services or information as soon as reasonably practicable following receipt of written notice of nonperformance.

THE SITE, PRODUCTS, AND SERVICES ARE PROVIDED TO YOU ON AN “AS-IS, WITH ALL FAULTS” BASIS, AND YOUR USE THEREOF IS AT YOUR OWN RISK. COMPANY MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. COMPANY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, PRODUCTS, AND SERVICES (1) WILL BE UNINTERRUPTED OR ERROR-FREE, (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS, OR (3) IS COMPLETELY SECURE. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE ARE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE AND THE PRODUCTS, SERVICES, AND MATERIALS CONTAINED THEREIN. YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Some jurisdictions do not permit the exclusion or limitation of implied warranties. Therefore, only if required by applicable law, some or all of the exclusions or limitations above may not apply. You may have other rights from jurisdiction to jurisdiction.

THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION OR ON-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE. YOU AGREE THAT YOU MUST COMMENCE ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE PRODUCTS, SERVICES, OR THE SITE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED.

FOR ANY BREACH OF THE ABOVE WARRANTIES, AND IF YOU ESTABLISH THAT YOU INCURRED DAMAGES, LIABILITIES, LOSSES, FEES, OR COSTS AS A DIRECT RESULT OF SUCH BREACH, THEN COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE FEES PAID BY YOU TO COMPANY FOR THE APPLICABLE SUBSCRIPTION PERIOD. SUCH REMITTANCE OF FEES PAID REPRESENTS YOUR EXCLUSIVE REMEDY, AND COMPANY’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE. THE FOREGOING LIMITATIONS OF LIABILITY REPRESENT THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

No employee, salesperson, vendor or other agent or purported agent of Company is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of Company. Furthermore, you acknowledge that it is your responsibility to verify any information upon which you or any of your Authorized Users use or rely.

9. Indemnity.

You hereby indemnify and agree to defend and hold harmless Company and its affiliates, officers, directors, employees, agents, contractors, licensors and any information providers and any other service or software providers for Company, from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) resulting from or incurred as a result of (i) your breach of or default under the terms or conditions of this Agreement, or (ii) any negligence, gross negligence or willful misconduct by or on behalf of you or your employees or agents. Company reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and in such case, you agree to cooperate with Company in the defense of such matter.

10. Survival. The following paragraphs shall survive expiration or termination of this Agreement: Section 2 and 4 through 9.

11. Termination; Default.

Without limiting any other provision of this Agreement, the occurrence of any of the following shall constitute a default by you under this Agreement: (i) your failure to fully perform any of your duties and obligations under this Agreement, (ii) your violation of any of the terms or provisions of this Agreement or (iii) any substantial part of your assets becomes subject to any levy, seizure, assignment or sale for the benefit of or by any creditor or government agency. Upon the occurrence of any of the foregoing defaults by you, Company shall, in addition to all other rights available under applicable law, have the right (then or at any time thereafter during the continuance of such default), at its sole option, to do any or all of the following: (i) immediately terminate this Agreement and all duties and obligations of Company hereunder, (ii) declare all amounts due and thereafter to become due to be immediately due and payable in full, and (iii) discontinue your access to and use of all Products and/or Services.

Notwithstanding the foregoing, the Company reserves the right to terminate this Agreement or suspend or terminate your access to and use of the Products and Services, or any portion thereof, in its sole discretion, at any time without notice and effective immediately. The Company shall not be liable to you or any third party for the termination or suspension of the Services, access to the Products, access to the Site, or any claims related to the termination or suspension of the Services or access to the Products.

Upon termination of this Agreement for any reason whatsoever, you shall discontinue your access to and cease all use of the Products and Services.

12. Use Restrictions.

You shall not copy, modify, duplicate, download or otherwise transfer the Products, Services or any part thereof, except as necessary to do so in order to access or use the Products and Services in accordance with this Agreement. You shall not attempt or permit others to attempt to modify, adapt, translate, convert to another programming language, decompile, reverse compile, disassemble or reverse engineer the Products or Services. Further, you shall not directly or indirectly upload, download, manipulate, transmit, publish, broadcast or otherwise provide or disseminate any content (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the patent, copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or (c) that is defamatory, obscene, threatening, or abusive.

13. Miscellaneous.

13.1 Assignment. You agree that neither party to this agreement may assign or transfer any rights or obligations arising under the terms of this Agreement without the prior written consent of the other party hereto, which shall not be unreasonably withheld, provided however, that Company may assign this Agreement to any affiliates and successors in interest in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement. Any purported assignment in violation of this section shall be void and of no effect.

13.2 Notice.

Except as otherwise provided in this Agreement, any notice to you that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by you when registering for the Site or subscribing to the Services or to such other address as provided in writing by you to Company for such purposes.

Except as otherwise provided in this Agreement, any notice to Company that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: your account administrator or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to: General Counsel, 11480 Commerce Park Dr #300, Reston, VA 20191

If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

13.3 Force Majeure.

Performance of any duty or obligation hereunder by either party shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event beyond a party’s reasonable control.

13.4 Waiver or Consent.

Any failure by either of the parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by the Company must be in writing and signed by an authorized representative of the Company.

13.5 Remedies Cumulative.

You acknowledge and agree that any violation of any term, condition or provision of this Agreement would cause Company and its providers irreparable harm for which there would be no adequate remedy at law, and that Company shall be entitled to temporary, preliminary and permanent injunctive relief against any such violation. Such injunctive relief shall be in addition to, and in no way shall limit, any other rights or remedies which Company may have at law or in equity.

13.6 Merger.

This Agreement and the Subscription Package constitute the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

13.7 Independent Parties.

Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or agency relationship between the parties, or as authorizing either party to act as an agent for the other.

13.8 Governing Law.

This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Virginia applicable to agreements made and wholly performed therein. Any dispute hereunder shall be resolved by binding arbitration conducted in Reston, Virginia under the rules of the American Arbitration Association.

FrontStream Holdings LLC is a registered ISO of Elavon, Inc. Georgia, Chase Paymentech Solutions, LLC, First National Bank of Omaha, Omaha, NE, BMO Harris Bank, N.A., Chicago, IL, Deutsche Bank, USA, New York, NY and Wells Fargo Bank, N.A., Walnut Creek, CA.

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