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HomeMy WebLinkAboutFOUNDANT TECHNOLOGIESFOUNDANT technologies ra PO Box 11888 Bozeman, MT 59719 Phone(877)297-0043 Fax(406)922-0073 INSURANCE ROT REQUIRED WORK MAY PROCEM, N-2016-162 CLERK OF COUNOjjt D'Am lug -6 -iii Technology for Doing Good, Better. Quote Date: November 3, 2016 Quote expires in 90 days Sylvia Vazquez The City of Santa Ana, Community Development Agency 20 Civic Center, M25 Santa Ana, CA 92701 714-647-5445 ism _F obb'd-aint Ce nt act Megan Dahl qty Item # Description Price 'Total -4 Grant Lifecycle Manager (GLM) Standard Two- year Licensed Subscription includes 5 GLM Grant Processes, hosting, maintenance and support with no limitations on GLPv2GSSCT the number of users or incoming requests. i $10,000.00 W'OKOO includes GLM Connect which provides access to external data from Foundation Center, GuideStar and Great Nonprofits. **Renewing fee due every2 years" Unlimited GLM Processes Two-year Licensed Subscription UNLProcess Unlimited GLN1 Processes Two•year Licensed $5,000.00 $5,000.00 Subscription I **Renewing fee due every 2 years" Administrator Training 2 Training for up to two administrators and includes GLM ADMIN TRAIN 2 one optional training session for reviewers/board $2,500.00 $2,500,00 members. **One-time fee** I Jumpstart Service Foundant will build the first draft of forms for I Process (LOI, .01 Evaluation, Application, Application Evaluation, and Follow Ups), Forms are due to Foundant 30 days after kickoff calk JUNAPSTART $500.00 $SOOJOO Foundant has 14 days to complete JumpStart after receiving all forms. After JumpStart is completed, all changes and additions to forms become the responsibility of the client. "One-time fee** h1c. F"O' bi'x I An8 i 11"/vwon, NI I -IS ; toll ti ee L', cfi: etft 4i - 6zk PaI F1 FOUNDANT technologies Technology for Doing Good, Better. I Expert Assist Your Foundant Client Success manager (CSM) will assist in tailoring GLM to fit your organization's identity and workflows while they train you. Also GLM EXP ASSIST IIncludes; custom Print Packets, I Tune up per $1,500.00 $1,500.00 year, assist building mail merge templates and 1 common reports. Client is responsible for ongoing management of tailored tools. **Renewing fee due every 2 years** ---- ------ - -- Applicant Training 45 minute customized training webinar for APPLICANT TRAIN applicants. Recording will be provided to client for$500.00 $500.00 future use, **One-time fee** Total U0,001).00 Inc 1'.0, Box 11 n�,S I BoZleipan, M1 .%'S to I I? UDAT technologies Technology for Doing Good, Better. Standard Terms and Conditions: 1, Foundant Technologies standard terms and conditions apply as stated in the Foundant Software and Hosting License Agreements, 2. Quoted prices are in U.S. dollars, All payments shall be in U.S. dollars and are due Net 30 from the invoice date. 3. All GLM Licenses include hosting, maintenance, upgrades and support with no limitations on the number of users. 4. This is a binding commitment, which is not subject to the issuance of any further purchase orders, confirmations or other events. 5. Foundant Technologies' Standard Terms and Conditions and this proposal represent the entire agreement between the parties and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by Foundant Technologies. 6. This order will be processed upon receipt of a copy of this letter signed by a representative of your organization. T, Special conditions override standard conditions in the event of an inconsistency. g. Foundant Technologies offers a 90 day money back guarantee on the cost of the software subscription from the date this order is processed. Should the client be unsatisfied for any reason after the 90 -day period, Foundant will provide a pro -rated refund for the remaining, unused portion of the software subscription fee, 9. GuldeStar Charity Check is licensed for up to 1,000 total lookups over the subscription term, if applicable based on the items purchased via this Quote. 10. Unless otherwise noted, client activity level is expected to be less than 5,000 online form submissions through GLM per year. Any deviation from this expectation should be communicated by client to Foundant at least four weeks prior to the initiation of such activity and Foundant reserves the right to limit access to GLM if adequate notice is not provided. 11. Should Foundant's prices increase prior to a renewal date, we commit that your next renewal will be no more than 10% increase over your most current subscription fee. 12- We collect and remit sales tax from our customers located in certain state and local jurisdictions, including those jurisdictions where software delivered as a service is taxable and where we maintain a physical presence. We determine your local taxing jurisdiction based on the billing address on your quote. Prices set forth in this quote do not take into account any taxes, Special conditions to the Foundant Standard Terms and Conditions Software License and Services Agreement with Customer, 1. Section 5(a) is amended to the following: Subject to earlier termination provided below, the Initial Term of this Agreement shall be for two (2) years (the "Initial Term"). The Initial Term of this Agreement may be extended for two (2) additional periods each equal to the Initial Term (each, a "Renewal Term") by a writing executed by Customer's City Manager and City Attorney. The Initial Term and the Renewal Term are collectively referred to herein as the "Term." 2. Section 12(a) payment terms are amended frorn 30 days to 60 days, 1-aanda.i, fechr:olog e , _„_ f'.(7 Ro4 I1t88 i Buzanrar s-11 �1)71k _ tt 1 tui X77,29-1,.00,10 i d rm[ 406,3tv122-' 1 i age a, F1 FOUNDANT technologies Technology for Doing Good, Better. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last date and year written below, ATTEST: MARTA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R, CARVALHO City Attorney By: Attorney RECOMMENDED FOR APPROVAL: 2 ROBERT C. CO EZ Deputy City Manager CITY OFSANTA ANA DAVID CAVAZOS City Manager Vendor: Name 6MA- (nvkb Title. Founclant Tax ID:Ct6 199P DUNS [;oAvII)a'I NT5�"71S toll I I c( "-- - - Foundant Technologies Standard Terms and Conditions Software License and Services Agreement with Customer INTRODUCTION This Agreement applies to the purchase of Sufmare or Services by Customer, It should be read in conjunction with the Quote Form, which identifies the products or services that Customer is purchasing. Parts of this Agreement may not apply to a particular Customer. PART ONE - DEFINITIONS 1. DEFINED TERMS In this Agreement: "Agreement" means this agreement and any appendix. "Authorized User", unless otherwise stated in a Quote Form, means an employee, board member, trustee, invited reviewer, grant applicant or grantee of Customer and/or Customer's affiliates, or of a person to whom Customer has outsourced services, each of whom is able to access the Software functionality described in the Quote Fonn. "Documentation" means user documentation provided electronically by Foundant for use with the Software. "Grant Making Entity" means any foundation, scholarship fund, government program or other organization providing financial or service assistance, support, or other awards for which the Software is used to process applications. "Grant Lifecycle Process" means the workflow procedures defined by a Grant Making Entity for a particular type of award. "Hosting Services" means the services provided by Foundant to Customer under the Hosting Service Level Appendix. "Hosting Service Level Appendix" means the terns and conditions of the Hosting Service, being an appendix to this Agreement. "Grant Process" means the online forms, users and workflow used to support a particular type of award for which applications are processed within the Software. Elements of the unique workflow may include but are not limited to items such as letters of intent, grant applications, evaluation criteria, review committees and grant reports. "Quote Forn" means a document provided by Foundant and signed by Customer (or in the case of a sale made through an authorized Foundant reseller, by the reseller), detailing the software and services provided by Foundant, and includes any attached statement of work, or appendix. "Professional Services" means the training, consulting, software development and other professional services identified on a Quote Foam, but does not include the Software, the Support Services or the Hosting Services. "Support Services" means the provision of upgrades and Software support. "Software" means the object code version of the proprietary computer software identified on a Quote Form and any subsequent revisions or modifications thereto famished to Customer by Foundant. "Work Product" means object code, source code, flow charts, documentation, information, reports, test results, Endings, ideas and any works and other materials developed by Foundant in providing the Professional Services to Customer, PART TWO - LICENSE AND SUPPORT 2. LICENSE GRANT (a) This Part Two shall apply only if the parties have agreed that Foundant shall license Software or provide Software support and maintenance to Customer. Foundant grants Customer an object code -only, non-exclusive, non -transferable (except as provided in Section 19) license to use the Software and the Documentation solely for Customer's internal business purposes and subject to the terms of this License Agreement (b) Customer may copy the Software, in whole or in part, only as necessary in connection with (i) Customer's installation thereof under this Agreernent and (ii) Customer's backup copies maintained for archival or emergency restart purposes. Customer may also copy the Documentation only for its authorized use of the Software, (c) As Foundant is providing Customer with Hosting Services, Foundant affirms that the only third party software required by Customer heremnder is browser software. 3. LIMITATIONS ON USE (a)Customer shall not (i) sell, rent, lease, sublicense or otherwise transfer or distribute any copies of the Software or Documentation to any third parties; (ii) modify, translate, reverse engineer, decunpile, or disassemble the Software (except to the extent applicable law specifically permits such activity) or modify the Documentation; (id) create derivative works based upon the Software or Documentation; (iv) alter, destroy or otherwise remove any proprietary notices (including the 'Powered By Foundant' link or labels on or embedded within the Software or Documentation; or (v) create, or cause the creation of unique Grant Lifecycle Processes that would result in the total number of active Grant Lifecycle Processes exceeding the maximum amount as defined on the Quote Form without Foundam's written approval. (b) Customer may use the Software to construct such number of Grant lifecycle processes only as listed in the Quote Fonn. (c) Customer acknowledges that (f) the Software and Documentation and all right, title and interest therein (including without limitation any copyright, patent, trade secret or other intellectual property right in and to the Software and Documentation) are the sole property of Foundant and its suppliers and that Customer receives no rights, title or interests in the Software or Documentation except as expressly set forth herein. 4. SUPPORT SERVICES (a) Foundant's Online Knowledgebase is available via a designated login for Customer's Authorized Users. Foundant will make reasonable efforts to ensure that this system is available 24x7x365 as a technical support resource for Customer. (b) Phone and e-mail technical support is available to Customer from 8:00 AM Mountain Time to 5:00 PM Mountain Time on standard business days. (c) Customer is responsible for providing initial support to those users submitting online forms to Customer. Foundant will main Customer to manage these inquiries. In instances where the user's inquiry is the result of a technical issue with the Software, Foundant will engage directly with the user for resolution. 5. LICENSE TERM AND ITTMINATION (a)Tlie license granted hereunder initiates upon the date the Quote is signed and expires per the tern noted on the Quote form. (b) Either party may t'erminat'e the license if the other breaches any material term and such breach is not cured within 30 days of written notice thereof. Upon expiration or termination of a license, Customer's rights under Part Two of this Agreement shall cease, Customer agrees to immediately cease use of the Software, and Foundant reserves the right to disable access for all Authorized Users of the Customer. Sections 14, 15, 16 and 19 shall survive the expiration or termination of the terminated license. (c) Upon termination or expiration of the license, Customer shall have 30 days to request all Customer computer files and data which tae stored in the Software. Foundant will deliver the requested computer files and data within 30 days of receiving said request. Computer files stored in the Software will be provided to Customer in same fo mall as they are stored. Computer data (that is, data stored in Software's internal databases) will be provided to Customer in one or more comma delimited text files (i.e. .CSV format). Foundant shall have no other obligation to maintain any Customer data stored in the Grant Lifecycle Manager system or to forward any data to Customer. Any requests for customization of this data export will be considered Professional Services and will be described in a separate Quote Form. 6. SOFTWARE WARRANTY (a) Foundant warrants to Customer that: (1) the Software will function substantially as described in the Documentation for so long as Customer is entitled to receive Support Services hereunder; (2) Foundant owns or otherwise has the right to license the Software and documentation to Customer under this Agreement; (3) on delivery, the Software will be free from any vims, time bomb, tromn horse, worm, drop dead device or other computer software code or routine designed to disable, damage or erase the Software, provided that the foregoing shall not apply if same could not have been detected by Foundant using commercially reasonable virus detection or other scanning practices. (b) If there is a material breach of the above warranties, Foundant's entire liability and Customer's exclusive remedy shall be: (1) if the Software does not function substantially in accordance with the applicable Documentation, Foundant shall, at its option, (i) promptly Foundant Technologies Standard Terms and Conditions Software License and Services Agreement with Customer modify the Software to conform to the Documentation; or (d) promptly provide a reasonable workaround solution which will reasonably meet Customer's requirements. If neither of the foregoing is commercially feasible, either party may terminate this Agreement, in which case Foundant shall refund to Customer all license fees paid to Foundant hereunder less an amount for use assuming straight fine depreciation over the license; (2) if the normal operation, possession or use of the Software by Customer is found to infringe any third party U.S. intellectual property right or Foundant believes that the Software is likely to do so, Foundant may, at its option, (i) obtain a license from such third party for the benefit of Customer, (ii) replace or modify the Software so that it is no longer infringing; or (iii) if neither of the foregoing is commercially feasible, terminate this Agreement, in which case Foundant shall refund to Customer all license fees paid to Foundant hereunder less an amount for use assuming straight line depreciation over the license term; (3) Ifthe Software contains a vires or similar device, Foundant shall replace the Software with Software which is free of such defects. (c) The remedies set forth above shall be Customer's sole and exclusive remedies. Foundant shall have no obligation hereunder for any Software that has been modified by Customer or any third party or any Software other than the then -current release and the immediately prior release thereof. Foundant shall have no obligation hereunder for errors, damage or problems caused by failure to provide a suitable operating environment, by any third party software, by accidental damage or by other matters beyond Foundant's reasonable control. PART THREE -HOSTING 7. HOSTING SERVICE LEVEL APPENDIX The Hosting Services are offered under the conditions set forth in Hosting Service Level Appendix, and for the tern identified in the Quote Fonn. As set forth in Section 9 of the Hosting Service Level Appendix, Foundant reserves the right to terminate the Agreement for violations of the Hosting Service Level Appendix. PART FOUR- PROFESSIONAL SERVICES 8. DELIVERY OF PROFESSIONAL SERVICES This Part Four shall apply only if the parties have agreed that Foundant shall deliver Professional Services to Customer. Foundant shall provide the Professional Services in accordance with the Quote Torn. 9. PROFESSIONAL SERVICES WARRANTY (a) Foundant warrants to Customer that (i) the Work Product shall substantially conform to any specification or statement of work detailed in the Quote Fomn and (u) the Professional Services will be performed with reasonable skill, care and diligence. du If them is a material breach of the above warranty, Foun lmrfs entire liability and Customer's exclusive remedy shall be if the Professional Services do not conform to the Quote Form or are not performed with reasonable skill, care and diligence, Foundant shall re -perform the Professional Services to the extent necessary to correct non -conformity. 10. CUSTOMER'S RESPONSIBILITIES Customer shall provide Foundant with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Professional Services, and shall do any thing that is identified in the Quote Form as the Customer's responsibility. If Customer tads or delays in its performance of any of the foregoing, Foundant shall be relieved of its obligations hereunder to the extent that such obligations are dependent upon such performance. 11. OWNERSHIP OF INTELLECTUAL PROPERTY Customer acknowledges that Foundant is the exclusive owner of the Work Product. Upon payment in full of any amount's due for Professional Services, Customer shall have an object code -only, non-exclusive, non -transferable (except as provided in Section l9pho license to use the Work Product for Customer's internal business purposes, which license shall continue for so long as, and be subject to the sane terms and conditions as the license to the Software. PART FI VC — GUIDESTAR SERVICES This Part Five and Appendix A shall apply only if the parties have agreed that Foundant shall deliver Guidestar Services to Customer. Foundant shall provide the Guidestar Services in accordance with the provisions described in the Quote Fomi and in accordance with the terms and conditions stated below. (a) Customer acknowledges that certain data available or otherwise accessible on or by means of the Software is provided pursuant to a license agreement with GuideStar USA, Inc. ("GuideStar"). By agreeing to the terns of this Agreement, Customer shall be deemed to agree to be bound by the provisions of the User Agreement of GuideStar attached or appended hereto as Appendix A, as the same may be amended from time to time, with references to the "GuideStar Site" therein deemed to refer to any data obtained from or by means of an interface or link with GuideStar's web site and any related services (collectively, "GuideStar Data"), and that the terms of the GuideStar User Agreement shall apply to Customer and Customer's use of any GuideStar Data; provided that, notwithstanding anything in such User Agreement to the contrary, (i) the only "Permitted Use" of the GuideStar Data shall be to learn about nonprofit organizations for the purposes of evaluating them as recipients of personal charitable donations; and (ib Customer will not be required to complete GuideStar's registration process to access such GuideStar Data through the Software. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, each of Foundant Technologies and Customer acknowledges and agrees that GuideStar (and its successors and assigns), a licensor of Foundant Technologies, is an intended third party beneficiary with full power and authority to enforce the provisions hereof to its benefit as it were a parry hereto. Customer agrees that Foundant Technologies may share any information provided by Customer to Foundant Technologies or otherwise related to Customer's use of any GuideStar Data, with GuideStar. PART SIX— FOUNDANT CONNECT This Part Six shall apply only if the parties have agreed that Foundant shall deliver Foundant Connect to Customer. Foundant shall provide Foundant Connect in accordance with the provisions described in the Quote Form and in accordance with the terms and conditions stated below. (a) Customer expressly acknowledges, understands mrd agrees that Foundant does not own, control or otherwise influence any of the information provided by Guidestar, GmafNonprofits and Foundation Center (Collectively the "Third Party Services"), cannot censor or edit the content of the Third Party Services and assumes no responsibility or liability for the content, privacy policies, security or practices of the Third Party Services. Foundant does not warrant that the provision of the Third Party Services will be uninterrupted; error free, timely, complete or accurate, nor does Foundant [Hake any warranties as to the results to be obtained frnnn use of the same. Customer acknowledges that the Third Party Services are provided for informational purposes only. Customer expressly agrees that Customer's use of the Third Party Services are at Customer's own risk. Accordingly, Customer agrees that Foundant will not in any way be liable to Customer or any other entity for any inaccuracies, errors, ornissions, delays, damages, claims, liabilities or losses, regardless of cause, in or arising from the use of the Third Party Services contained in the Software. PARTSEVEN-GENERAL 12. PAYMENTS (a) This Part Six applies to any transaction that occurs under this Agreement Customer shall pay Foundant the fees listed in the Quote Form. Unless expressly provided to the contrary in a Quote Form, all fees payable under this Agreement shall be paid net 30 days from the invoice date. Customer shall pay a finance charge on any overdue payment hereunder of one and one-half per cent (1-1/2%) for each month or portion thereof that such payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower, Interest shall compound monthly. Such fees do not hrclude any taxes, and Customer shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Foundant) based on or due as a result of any amounts paid to Foundant hereunder. Customer shall bear all of Fomrdauls costs of collection of overdue fees, including reasonable at omeys' fees. (b) Notwithstanding Section 12(a), ifCustomer purchases Foundant Technologies Standard'Fernls and Conditions Software License and Services Agreement with Customer Software, Professional Services, Support Services, or Hosting Services from an authorized Foundant reseller, Customer shall make all payments due in connection therewith to the reseller, and not to Foundant. However, Foundant is under no obligation to carry out its obligations under this Agreement if Foumdant has not received payment in full fiern the reseller. 13. WARRANTY DISCLAIMER EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6 OR 9 OF THIS AGREEMENT OR IN THE HOSTING SERVICE LEVEL APPENDIX, THE SOFTWARE, SUPPORT SERVICES, WORKPRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND FOUNDANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOUNDANT DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE. 14. LIMITATION OF LIABILITY (a) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER'S INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OF THE SOFTWARE OR WORK PRODUCT. (b) EXCEPT AS PROVIDED HEREAFTER, EACH PARTY'S TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO A QUOTE FORM MADE UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO FOUNDANT UNDER SUCFI QUOTE FORM DURING THE TWENTY FOUR (24) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PARTOF THE BARGAIN BETWEEN FOUNDANT AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO FOUNDANT HEREUNDER. NOTHING IN THIS SECTION 14(B) SHALL APPLY TO LIMIT CUSTOMER'S LIABILITY TO FOUNDANT IN CONNECTION WITH AN INFRINGEMENT OF FOUNDANT'S INTELLECTUAL PROPERTY RIGHTS, OR TO LIMIT EITHER PARTY'S LIABILITY TO THE, OTHER IN CONNECTION WITH AN INFRINGEMENTOF SECTION 16 OF THIS AGREEMENT. 15. CONFIDENTIALITY (a) Customer acknowledges that the Soltware, Documentation and Work Product contain valuable trade secrets which are the sole property of Foundant, and agrees to use reasonable care to prevent other parties from learning of these trade secrets. Customer will take all reasonable steps to prevent unauthorized access to or duplication of the Software, Documentation, and Work Product. (b) Foundant acknowledges that Customer's Giant Lifecycle Process(es) may contain valuable secrets which are the sole property of Customer. To the extent that Foundant becomes aware of the content of Grant Lifecycle Process(es), Foundant agrees to use reasonable care to prevent other parties firm learning of these secrets without prior written pennission of Customer. (c) Foundant acknowledges that Customer's data and files stored within the Software are the property of Customer and will be treated as confidential. Foundant agrees to use reasonable care to ensure the confidentiality of Customer's data. (d) The obligations of this Section 15 shall not extend to may information that (i) is now, or hereafter becomes, through no act or failure to act on the part of receiving party (the "Receiver"), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver's records; (iii) is hereafter famished to the Receiver by a thud party, as a matter of right and without restriction on disclosure; or Iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure. 16. INDEMNIFICATION (a) Subject to Section 14(b), Foundant shall indemnify, defend and hold Customerhamrless from any damages awarded against Customer (including, without limitation, reasonable costs and legal fees thereby incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Software by Customer as permitted hereunder infringes any copyright, trade secret or United States patent ("Legal Action"). Notwithstanding the foregoing, Foundant shall have no indemnification obligations with regard to any Legal Action arising out of (i) combination of the Software with software or products not supplied, or approved in writing by Foundant; (ii) any repair, adjustment, modification or alteration to the Software by Customer or any [turd party, unless approved in writing by Foundant; (iii) any breach by Customer of its obligations under this Agreement; or (iv) any refusal by Customer to install and use a non -infringing version of the Software offered by Foundant under Section 6(b). Section 6(b) and this Section 16(a) state the entire liability of Foundant with respect to any intellectual property infringement by the Software. (b) Notice of Legal Action. Customer shall give prompt written notice to Foundant of any Legal Action within thirty (30) days of its first knowledge thereof and shall furnish copies to Foundant of all communications, notices and/or other actions relating to any Legal Action. Customer shall give Foundam the sole control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of Foundant and shall give Foundant such assistance as Foundart reasonably requests to defend or settle such claim. Foundant shall conduct its defense at all times in a manner which is not adverse to Customer's interests. Customer may employ its own counsel to assist it with respect to any such chum. Customer shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Foundant or its counsel, or because Foundant fails to assume control of the defense. Customer shall not settle or compromise any Legal Action without Foundant's express written consent. Foundant cannot settle a Legal Action on Customer's behalf without Customer's prior consent, which shall not be unreasonably withheld. Customer's material failure to comply with this Section. 16(b) shall relieve Foundant of its indemnification obligation under Section 16(a). 17. PUBLICITY (a) Foundant shall have the right to flet Customer as a customer on Foundant's website, on publicly available customer lists, or in media releases. (b) Customer, at its sole discretion, shall cooperate with any reasonable request by Foundant for assistance in the preparation of a case sandy documenting Customer's experience in using the Software. The final text of the case study shall be subject to Customer's written approvalbefore publication. 18. VERIFICATION At Foundant's discretion, but no more frequently then three (3) tunes in any twelve (12) month period, Foundant shall have the right to audit Customer's implementation of the Software for verification of comphance with the terns set forth in the Quote Porto. 19. MISCELLANEOUS (a) This Agreement, including any appendices, together with the Quote Form, represents the entire agreement of the parties, and supersedes any prior or conternpomneous understandings, whether written or oral. In the event of a conflict between the Agreement and the Quote Form, the Quote Form shall Prevail. (b) This Agreement may not be amended, waived or modified except as expressly provided herein or in writing by the parties. (c) 'Ibis Agreement will be governed by and construed in accordance with the laws of Montana (excluding its choice of law mles). The parties hereby consent to the exercise of exclusive imisdietion by the state or federal courts in the State of Montana for any claim relating to the enforcement of, or any rights under, this Agreement. (d) Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Foundant. Foundant may not withhold such consent in the case of an assignment by Customer of its rights and obligations to an entity that has Foundant'rechnologies Standard Terns and Conditions Software License and Services Agreement with Customer acquired all, or substantially all of Customer's assets, or to an assignment which is part of a pre -determined asset transfer to a new foundation organization. (e) Customer shall not export or re-export, directly or indirectly, any Software, Documentation or Confidential Information to any countries outside the United Slates except as permitted under the U.S. Commerce Deparhnent's Export Administration Regulations. Foundant'rectmologies Standard Terms and Conditions Software License and Services Agreement with Customer Appendix A Guidestar User Agreement USER AGREEMENT READ THE TERMS AND CONDITIONS HEREIN CAREFULLY BEFORE CONTINUING OR USING THE GUIDESTAR SITE (AS DEFINED BELOW'). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THE GUIDESTAR SITE. YOUR CLICKING ON THE BUTTON MARKED "I ACCEPT" AND YOUR CONTINUED USE OF THESE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS AND THIS USER AGREEMENT. This User Agreernent is a binding contract between You and Philanthropic Research, Inc. ("GuideStar"). Your access to and continued use of the GuideStar Web site located at www.guidestar.org (including any successor site) (the "GuideStar Site") constitutes your acceptance, without limitation, of the terns and conditions of this User Agreement. If You do not agree to be bound by these terns, You may not access or use the GuideStar Site. You acknowledge that you have read the terms and conditions herein and that you accept such terms and conditions. YOU AGREE TO READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE GUIDESTAR SITE OR ANY FEE-BASED PRODUCT (AS DEFINED BELOW). If you do not agree to these terms and conditions, you may not use the GuideStar Site or any Fee - Based Product. Permitted and Prohibited Uses Permitted Uses. Upon Your acceptance of this Agreement by clicking on the button marked "I Accept", You are granted limited, non-exclusive and nontransferable license to access and use the GuideStar Site (including its database and certain other contents, but excluding portions of the GuideStar Site relating to Fee-based features or services, such as features and services associated with "GuideStar Select' and "GuideStar Premium" (collectively, "Fee -Based Products")) for the following purposes (collectively, "Permitted Uses"): a. to team about nonprofit organizations for the purposes of evaluating them as recipients of personal charitable donations; or b. if You are an entity or governmental agency: i investigating nonprofit entities for purposes of providing goods or services to them or for entering into other types of business relationships with them, ii fulfilling Your business or organizational mission of making charitable donations to nonprofit entities; iii conducting comparative or other "best practices" research purposes; iv for Your own internal business use; and v in the case of governmental agencies, performing regulatory or research functions related to nonprofit entities. Prohibited Uses. You may not: I. use the GuideStar Site other than is authorized by this Agreement; 2. use the GuideStar Site for the benefit of any third party, other than as part of Permitted Use; 3. republish or distribute information from the GuideStar Site (including by posting same on any other Web site); 4. mortify information from the GuideStar Site except in connection with a Permitted Use; 5. disassemble, decode, decompile, or otherwise reverse engineer the GuideStar Site, including, without limitation, any interfaces or software programs comprising the GuideStar Site; 6. take any action that would impede or interfere with the operation of the GuideStar Site or alter the contents of the GuideStar Site, or alter or interfere with any other content, site or software that GuideStar owns or controls; 7. directly or indirectly, change, recompile, refiame, rent, sell, distribute or publish any of the GuideStar Site, GuideStar Database and/or GuideStar Content, or any portion thereof; 8. use any data mining, robots or similar data gathering and extraction methods with respect to the GuideStar Site or any portion thereof; or 9. use the GuideStar Site directly or indirectly in competition with GuideStar in any way whatsoever. Access to the GuideStar Site Except as provided below with respect to library Patrons (as defined below), if You are an individual, You will select a user name and password at the [rine You complete Your registration on the GuideStar Site. If You are an entity or governmental agency, You will, upon purchasing any of GuideStar's Fee -Based Products that permit access by one or more of your authorized users (which (unless Your agreement with GuideStar with respect to such Fee -Based Product expressly provides otherwise) may be Yom employees but not independent contractors or third parties), be permitted to designate those of You authorized users who will be permitted to access such Fee -Based Product on Your behalf, subject to the maximum number of authorized users to which You are permitted to grant access to such Fee -Based Product, as provided in the subscription or other agreement pursuant to which You purchased such Fee -Based Product. Stich authorized users must complete GuideStar's registration process in order to receive passwords that will permit them to access such Fee -Based Product. (For the avoidance of doubt, if you are an authorized user of an entity or governmental agency (including, without limitation, a library) that has purchased one or more Fee -Based Products, all of the rights, obligations and agreements stated in this User Agreement as applicable to "You" shall apply equally to you as such an authorized user.) Only one individual may access the GuideStar Site ata time using the same username and password You are responsible for maintaining the confidentrality of the user name and password and are fiilly responsible for all activities that occur under Your user name or password, and, if You are an entity or governmental agency, for all activities that occur under the user names and passwords of Yom authorized users to the extent such user names and/or passwords are used or misused in connection with any Fee -Based Product purchased by You. You me responsible for ensuring that no unauthorized person will have access to Yom user name, password or account. It is Your sole responsibility to monitor and control access to and use of Your user name, password and account. Your user time, password and account are not transferable. You grant GuideStar and all other persons and entities involved in the operation of the GuideStar Site the right to transmit, monitor, store, retrieve and use Yom information in connection with the operation of the GuideStar Site. You agree to (a) immediately notify GuideStar of any unauthorized use of Your user name, password or account or any other breach of security, and (b) ensure that You exit from Yom account at the end of each session. GuideStar cannot and will not be liable for any loss or damage arising from You (or any authorized users') failure to comply with the provisions of this Section. If Your access to the GuideStar Site is provided by or through a third party library that has entered into an agreement with GuideStar to allow its legitimate Patrons to access any Fee -Based Product without requiring such Patrons to log in individually with user name and passwords, by using the GuideStar Site (including, without limitation, such Fee -Based Product), You agree to abide by all of the provisions of this User Agreement, except that the provisions above regarding registration and use of a user name and password may be inapplicable to You use of the GuideStar Site and such Fee -Based Product to the extent such use is made via access provided by such library. "Patron' means an individual member of the public authorized to access and use a library in accordance with the rules and policies applicable to such library. GuideStar reserves the right, for any reason and without notice, in its sole discretion, to terminate, change, suspend, or interrupt access, in whole or in part, to the GuideStar Site. GuideStar further reserves the right to impose Foundant Technologies Standard'Verms and Conditions Software License and Services Agreement with Customer additional or other registration, password and other security precautions on access to and use of the GuideStar Site, Use of Cookies GuideStar may use cookie technology to help personalize Your experience on the GuideStar Site. A cookie is a small file that is sent to Your computer by a site's server. A cookie can be a record of Your visit to a site, including information such as Your user name, registration information, time of last visit, pages viewed, etc. A cookie created by one site's servers can be retrieved only by that site's servers, You have the ability to accept or decline cookies. Most web browsers automatically accept cookies, but browser settings can usually be modified to decline all cookies, or to notify the user each time a cookie is sent and permit cookies to be accepted or declined on an individual basis. If You (or one of Your authorized users, if any) choose to decline cookies, You (or such authorized user) will need to enter Your (or such authorized user's) user name and password each time You (or such authorized user) desire to log in to the GuideStar Site, and use of the GuideStar Site by You (or such authorized user) may also otherwise be negatively impacted. Communications from GuideStar You understand and agree that, as pan of Your use of the GuideStar Site, GuideStar may send to You certain communications from time to time, including (a) product announcements, such as announcements concerning upgrades, modifications and/or enhancements to the GuideStar Site and any other products or services offered by GuideStar; (b) service announcements, such as announcements regarding possible interruptions or other conditions that may affect access to and/or 1180 of the GuideStar Site and/or any other products or services offered by GuideStar; (c) subscription -related announcements, such as notification or impending subscription expirations and opportunities to upgrade subscriptions; and (d) other administrative updates. You thither understand and agree that Your agreement to receive such communications is a condition to Your use of the GuideStar Site and other products and services offered by GuideStar, and that You will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new feature that augments or enhances the GuideStar Site, shall be subject to this Agmeinent. Registration Information and Privacy Policy As a condition of Your right to use the GuideStar Site, You agree to provide us with nue, accurate and complete information as required by the registration process, including Your legal name, address, telephone number, and e-mail address (collectively, "Registration Data"), to allow us to share Your Registration Data with third parties For the purpose of verifying the information you provide and to otherwise use such Registration Data consistent with our Privacy Policy. You agree to the terns of our Privacy Posey, which is incorporated by reference. Legal Notices and Proprietary Rights You acknowledge and agree to the terns of GuideSmes Legal Notices, which are incorporated by reference. You agree not to take any action that would infringe, misappropriate, or violate GuideStar's intellectual property interests. You agree not to upload or otherwise place any information on the GuideStar Site that would infringe or otherwise violate anyone's intellectual property interests or other rights, or that is false, misleading, defamatory, or otherwise contrary to law or regulation. ACCURACY AND WARRANTY DISCLAIMERS GuideStar does not warrant or guarantee the aecumay, quality, completeness, currency, or validity of any information on the GuideStar Site (including, without limitation, database accessible via the Site and its content) or linked from the GuideStar Site. The descriptive infonnation is derived from IRS Forms 990, Forms 990 -EZ, and Fonns 990 -PF filed by the nonprofit organizations or their voluntary responses to a GuideStar questionnaire. The financial data are taken from the IRS Business Master File, IRS Forms 990, Forms 990 -EZ, Forms 990-117, or information provided to GuideStar by organizations that are not required to file returns with the IRS. The classified ads and news releases are also provided by the organizations. GuideStar does not edit or control the financial information it receives, although it may (in its sole discretion) note obvious mathematical errors that it believes may exist in the materials as received by it. Due to, among other things, the possibility of human and/or mechanical error, GuideStar shall not be responsible for any errors or omissions on the GuideStar Site. GuideStar makes no representations as to the accuracy or integrity of the information contained therein, including, without limitation, the GuideStar Content. GuideStar shall not be liable for any damages of my kind incurred as a result of the information posted on the GuideStar Site including, without limitation, the GuideStar Content, GUIDESTAR MAKES NO WARRANTY THAT THE GUIDESTAR SITE IS BUG FREE OR ERROR FREE, THAT SAME WILL OPERATE WITHOUT ANY INTERRUPTION, OR THAT USE OF SAME WILL RESULT IN ANY PARTICULAR RESULTS. THERE ARE NO WARRANTIES AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY INFORMATION OR AGAINST INFRINGEMENT. THE GUIDESTAR SITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS." GUIDESTAR HAS MADE AND MAKES NO OTHER WARRANTIES, AND IT DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, OR ARISING BY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES RELATING TO NONINFRINGEMENT, NONINTERFERENCE, ACCURACY, MERCHANTABILITY, TIMELINESS, PERFORMANCE, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR THAT ANY INFORMATION, EFFORTS, SERVICES OR SYSTEM PROVIDED BY GUIDESTAR WILL FULFILL ANY OF YOUR PARTICULAR PURPSOSES OR NEEDS. GUIDESTAR MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD PARTY'S SOFTWARE AND/OR EQUIPMENT. LIMITATIONS ON LIABILITY; INDEMNITY IN NO EVENT SHALL GUIDESTAR (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS) HAVE LIABILITY FOR PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST DATA) ARISING IN CONNECTION WITH THIS USER AGREEMENT, THE GUIDESTAR SITE, ANY DATABASE OR CONTENT THEREON OR THE USE OR INABILITY TO USE THE GUIDESTAR SITE, OR ANY DATABASE OR CONTENT THEREON, REGARDLESS OF THE LEGAL. THEORY ON WHICH SUCH DAMAGES ARE CLAIMED OR REGARDLESS OF WHETHER GUIDESTAR HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOT ALL STATE LAWS ALLOW SUCH LIMITATIONS, AND YOUR RIGHTS MAY VARY. You agree to indemnify, defend and hold harmless GuideStar, its affiliates, and their respective officers, directors, employees, agents, successors, assigns, licensors, partnere, joint venturers, customers and any other person or entity involved in the creation, production and/or distribution of the GuideStar Site, from and against any and all claims, liabilities, costs and expenses (including, without limitation, attomeys' Fees and expenses) incurred in connection with or arising from any breach by You of this User Agreement or resulting in connection with or arising from Yom use of the GuideStar Site. Foundant Technologies Standard Terms and Conditions Software License and Services Agreement with Customer Endorsement Disclaimer GuideStar does not endorse, support, sanction, or verify the information or material on or accessible via the GuideStar Site. Unless otherwise specifically indicated, GuideStar does not endorse and has no affiliation with any of the organizations mentioned, listed in, described on or linked to via the GuideStar Site, and it makes no representations or warranties whatsoever with regard to those organizations or any other organization, entity or person. Disclaimer Regarding Financial and Legal Advice The information on the GuideStar Site is provided for educational and informational purposes only. Such information or materials do not constitute and are not intended to provide legal, accounting, or tax advice and should not be relied on in that respect. We suggest that You consult an attorney, accountant, and/or financial advisor to answer any financial or legal questions. Classified Ads and Nonprofit Resources Disclaimer Please note: GuideStar's classified ads are a FREE service. GuideStar reserves the right to edit, categorize, revise, or decline any classified advertisement. We reserve the right to refuse any ad we deem inappropriate, In addition, GuideStar has the right to terminate any ad at any time for any reason, including if we team that the user has provided false or misleading information. Parties posting ads are responsible for the accuracy and content of their ads. Check you ad and if you find an error, please correct it immediately. GuideStar will not be liable for any damages arising out of effom or omissions. GuideStar and its affiliates make no representations or warranties of any kind, whether express or implied, regarding any of the classified ads located on the GuideStar Web site. Buyer beware and due diligence are recommended before entering into any agreement with a classified advertiser. We will not be held liable for any damages of any kind relating to any ad. Termination; Equitable Remedies GuideStar may terminate this User Agreement at any time, with or without notice and with or without cause. Terms of this User Agreement that, by their nature, survive the termination or expiration of this User Agreement, shall so survive. You acknowledge and agree that any unauthorized use or disclosure by you of the GuideStar Site or any hhfiingement or violation of GuideStar's intellectual property rights, shall cause GuideStar irreparable injury for which GuideStar could not be fully compensated by money damages. You agree that, in the event of such a violation, GuideStar would be entitled to seek and recover (in addition to any other available remedies) preliminary mid permanent injunctive relief without the necessity of posting bond or security, and further that GuideStar would be entitled to recover from you its attomeys' fees and costs incurred in seeking and obtaining such relief. Force Majeure GuideStar shall have no liability whatever for delays or interruptions in delivery or accessibility of any of the GuideStar Site, interruptions of service or other breach of this User Agreement due to fire, explosion, lightning, power surge or failure, water, acts of God, war, civil disturbance, terrorism, acts or omissions of communications carriers, or other causes beyond GuideStar's reasonable control. Dispute Resolution This User Agreement shall be governed and consumed by the laws of the Commonwealth of Virginia, without regard to its choice of law rules, You agree that, by entering into this User Agreement and accessing and/or using the GuideStar Site, You are transacting business in the Commonwealth of Virginia and are subject to jurisdiction in its courts. Any legal or equitable action arising from this User Agreement or in connection with the GuideStar Site shall be commenced and maintained in a court of competent subject matterjurisdiction within the Commonwealth of Virginia, and you consent to personal jurisdiction and venue in any such court. In the event it is held that jurisdiction or venue is wanting in such a court, an action then may be commenced in any other court having properjurisdiction under applicable statutes and court rules. In the event of any dispute adjudicated between the parties, whether in litigation or permitted appeal, the prevailing party shall be entitled to recover from the party not prevailing its reasonable attomeys' fees and costs incurred in such proceeding. The parties agree that neither may bring a claim or assert a cause of action against the other, in any forum or manner, more than one (1) year after the cause of action accrued, except where the party could not have reasonably discovered the wrong giving rise to the claim within the basic facts supporting the chain within one (1) year. Modification of this User Agreement GuideStar reserves the right, in its sole discretion, to modify, alter, or otherwise revise this User Agreement (as well as the License Agreements to our Fee -Based Products, Legal Notices, and Privacy Policy referenced in the User Agreement) at any time by posting such modified versions on the GuideStar Site. You agree to monitor regularly the User Agreement as it appears on the GuideStar Site. Your continued use of the GuideStar Site atter the posting of any modified versions shall constitute agreement to the modified User Agreement. This User Agreement may be modified by Your agreement to a License Agreement or License Agreements to one or more or our Fee -Based Products. This User Agreement may not otherwise be modified or amended. Notices Except as is stated herein to the contrary, any notices to GuideStar must be given by postal mail sent to GuideStras headquarters as then listed on the GuideStar Site. Any notices to You will be sent to the e-mail address that you provide to GuideStar. Severabitty Should any term of this User Agreement be finally held by a court of eompetentjurisdiction to be invalid, unenforceable, void, or otherwise contrary to law or equity, GuideStar and you agree that such provision shall be automatically severed and the remainder of this User Agreement that can be given effect shall continue to be given effect. Entire Agreement This User Agreement constitutes the entire agreement between GuideStar and You with respect to the subject mater of this User Agreement, and it supersedes all prior agreements, understandings or representations between You and GuideStar with aspect to the subject matter of this User Agreement, This User Agreement may not be modified except in writing and as is permitted herein.