NetSolutions Services Agreement - Blackbaud Inc.
BLACKBAUD RE:NETSOLUTIONS(TM) SERVICES AGREEMENT
This is a legal agreement between your organization ("CLIENT") and Blackbaud,
Inc. ("BLACKBAUD") a South Carolina corporation having a principal place of
business at 2000 Daniel Island Drive, Charleston, SC 29492.
The Effective Date of this Agreement is the date of the Agreement to Purchase
covering the Services. Client acknowledges its unconditional acceptance of this
Agreement when it accepts and executes the Agreement to Purchase.
1. SERVICES PROVIDED BY BLACKBAUD. For the term of this Agreement, Blackbaud
shall provide Client with its NetSolutions services ("SERVICES"). Blackbaud
retains all right, title and interest in and to the Services, all materials
furnished by Blackbaud, and all trademarks, service marks and trade names
worldwide, subject to a limited license necessary to perform this
Agreement.
2. FEES AND PAYMENT. Client shall pay annual fees in advance and in a timely
manner, but no later than 10 days after invoicing. Unless otherwise
provided, annual fees entitle Client to 5,000 transactions per month per
module. Additional annual transaction blocks may be purchased in accordance
with Blackbaud's then current rates.
3. TERM. This Agreement commences the date Client purchases the Services and
unless terminated sooner pursuant to Section 8, shall be effective until
the date one year following. Unless Client or Blackbaud notifies the other
in writing at least sixty (60) days before the end of the Term (including
any extension) of its intention to terminate this Agreement, the Term shall
be automatically extended for additional one (1) year periods.
4. CONFIDENTIAL INFORMATION. Each party shall treat the proprietary
information of the other party as strictly confidential and shall not
disclose such information to any third party except to those third parties
operating under non-disclosure provisions no less restrictive than in this
Section and who have a justified business "need to know". Client shall
protect the deliverables resulting from Services with the same degree of
care. This Agreement imposes no obligation upon the Parties with respect to
Confidential Information which either party can establish by legally
sufficient evidence: (a) was in the possession of, or was rightfully known
by the Recipient without an obligation to maintain its confidentiality
prior to receipt from Owner; (b) is or becomes generally known to the
public without violation of this Agreement; (c) is obtained by Recipient in
good faith from a third party having the right to disclose it without an
obligation of confidentiality; (d) is independently developed by Recipient
without the participation of individuals who have had access to the
Confidential Information; or (e) is required to be disclosed by court order
or applicable law, provided notice is promptly given to the Owner and
provided further that diligent efforts are undertaken to limit disclosure.
5. INDEMNITY.
5.1 BY BLACKBAUD. Blackbaud shall indemnify and defend Client against any
claims that the Services delivered to Client infringes any United States or
Canadian patent or copyright, provided that Blackbaud is given prompt
notice of such claim and is given information, reasonable assistance, and
the sole authority to defend or settle said claim. Blackbaud shall have no
liability to indemnify and defend Client to the extent (i) the alleged
infringement is based on infringing information, data, or content created
or furnished by or on behalf of Client or (ii) the alleged infringement is
the result of a modification made by anyone other than Blackbaud.
5.2 BY CLIENT. Client shall indemnify and defend Blackbaud against any
claims that any of Client's content provided and included on the donation
site infringes or violates any rights of third parties, including without
limitation, rights of publicity, rights of privacy, intellectual property,
trade secrets or licenses.
6. WARRANTIES AND REPRESENTATIONS.
6.1 EACH PARTY. Each party warrants that: (i) it has the right and power to
enter into this Agreement, (ii) an authorized representative has executed
this Agreement, and (iii) it will comply with any applicable laws and
regulations pertaining to this Agreement and the provision of Services.
Blackbaud warrants that the Services will be performed in a professional
and workmanlike manner in accordance with recognized industry standards.
BLACKBAUD EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION)
TO THE EXTENT PERMITTED BY LAW, AND FURTHER BLACKBAUD EXPRESSLY EXCLUDES
ANY WARRANTY OF NON-INFRINGEMENT (EXCEPT AS SPECIFICALLY
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PROVIDED), TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO
THE EXTENT PERMITTED BY LAW.
6.2 ASSURANCES OF CLIENT. Client acknowledges that it is the end user of
the Services and that Client is a 501(c) organization under IRS regulations
and has legal authority to accept charitable donations. Client shall: (a)
designate and provide a point of contact, responsible for decisions
regarding the donation site, and for answering and resolving questions and
issues relating to the Services; (b) provide to Blackbaud all images and
content, if any, desired for the donation site in the format required by
Blackbaud, and all images and content shall be legally permissible content
that does not infringe any third party rights; (c) advise Blackbaud of any
changes to Client's operations, or banking relationships or other
information that would require a change in the donation site; (d) pay all
applicable fees and expenses as same become due.
7. LIMITATION OF LIABILITY. BLACKBAUD'S MAXIMUM LIABILITY FOR ANY ACTION
ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER
IN TORT OR CONTRACT, SHALL BE LIMITED TO THE AMOUNT OF SERVICES FEES PAID
BY CLIENT FOR THE SERVICES FROM WHICH THE CLAIM AROSE. IN NO EVENT SHALL
BLACKBAUD BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST
PROFITS, HOWEVER ARISING, EVEN IF CLIENT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK
SET FORTH HEREIN. BLACKBAUD SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN
THE EVENT OF ANY LOSS OR INTERRUPTION IN HOSTING SERVICES DUE TO CAUSES
BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION
OR FAILURE OF TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS,
INTERNET SLOWDOWN OR FAILURES.
8. TERMINATION. Either party may terminate this Agreement in the event of a
material default by the other and failure to cure such default within 10
days after notice thereof. Client's failure to fully pay any fees due
within 10 days after the applicable due date shall be deemed a material
breach. Any such termination does not relieve Client of its obligation to
pay past due fees as well as legal fees and costs of collection. In the
event of any loss or interruption in hosting services due to causes similar
to and including scheduled maintenance, repairs, or causes beyond the
reasonable control or foreseeability of Blackbaud, such loss or
interruption shall not be a material default or cause for termination.
9. GENERAL. Blackbaud performs this Agreement as an independent contractor,
not as an employee of Client. Nothing in this Agreement is intended to
construe the existence of a partnership, joint venture, or agency
relationship between Client and Blackbaud. No modification to this
Agreement nor any failure or delay in enforcing any term, exercising any
option, or requiring performance shall be binding or construed as a waiver
unless agreed to in writing by both parties. Except for Client's obligation
to pay Blackbaud, neither party shall be liable for any failure to perform
its obligations under this Agreement if prevented from doing so by a cause
or causes beyond its control, including without limitation, acts of God or
public enemy, failure of suppliers to perform, fire, floods, storms,
earthquakes, riots, strikes, war, and restraints of government. All notices
or other communications referenced under this Agreement shall be made in
writing and sent to the address designated above or otherwise designated
from time to time in writing by the Parties. All notices shall be deemed
given to the other party if delivered by registered or certified first
class mail, postage prepaid; recognized courier delivery; electronic mail
or fax. The terms of this Section 5 shall survive termination of this
Agreement. This Agreement shall be governed by the laws of the State of
South Carolina. Except as otherwise specifically stated herein, remedies
shall be cumulative and there shall be no obligation to exercise a
particular remedy. If any provision of this Agreement is held to be
unenforceable, the other provisions shall nevertheless remain in full force
and effect. This Agreement constitutes the entire understanding between the
Parties with respect to the subject matter herein, supersedes all prior
oral and written understandings, and may only be amended or modified by a
writing signed by a duly authorized representative of each party. This
Agreement may be executed by facsimile.
CLIENT: BLACKBAUD:
By: ________________________________ By: ________________________________
Name: _____________________________ Name: ______________________________
Title: ____________________________ Title:______________________________