Last updated August 2023
Master Services Agreement
Terms and Conditions
These Master Services Agreement Terms and Conditions, including any exhibits or Addenda attached hereto (collectively the “Terms and Conditions”), together with the Order Form are the “Agreement” or “Master Services Agreement” made as of the Effective Date (as defined in the Order Form) by and between EverTrue and Customer (each as defined in the Order Form), each of which are referred to herein as a “party” and collectively as the “parties”. Intending to be legally bound, the parties hereby agree as follows:
1. Definitions. In this Agreement, the following terms shall have the meanings set forth below:
1.1 “Addendum” or, collectively “Addenda” means any addendum attached to these Terms and Conditions. Each Addendum may, among other things, set forth additional provisions, terms or conditions regarding the specific Services to be provided by or on behalf of EverTrue under an Order Form.
1.2 “Affiliate” means, with respect to any person, any other person that is directly or indirectly Controlling, Controlled by, or under common Control with such person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
1.3 “Anonymous” means without disclosing any identifying information about Customer, Customer’s Users, constituents, or other Personal Information about individuals.
1.4 “Customer Data” means any data, information or material provided or submitted in its unaltered form by Customer (including Customer’s employees, agents and representatives) or Customer’s Users to EverTrue, in connection with using the Services or otherwise under this Agreement.
1.5 “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, Personal Information, EverTrue Technology, Feedback, other proprietary technology, business and technology processes and requirements, the terms of this Agreement (including pricing terms), product information, and financial information.
1.6 “Data Protection Legislation” means all applicable laws, rules, and regulations relating to data protection and privacy that apply to EverTrue’s processing of Customer Data that contains Personal Information, including the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act, and regulations promulgated thereunder.
1.7 “De-identified information” means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, other identification numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.
1.8 “Documentation” means EverTrue’s written instructions describing the functionality and use of EverTrue Technology and any information available on EverTrue’s website.
1.9 “EverTrue Technology” means all of EverTrue’s and its Affiliates’ respective proprietary technology, including the EverTrue Platform, and other software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, together with any derivative works or improvements of such proprietary technology.
1.10 “EverTrue Platform” means the software made available to Customer as a Service to, among other things, help understand, identify and segment constituents in order to drive engagement, research and fundraising results.
1.11 “Intellectual Property Rights” means all U.S. and foreign (whether statutory or non-statutory) copyrights, patent rights, trademark rights, proprietary rights in information and data, including trade secrets and know how, and moral rights and other personal rights in inventions and original works, and all other intellectual and industrial property rights, including all applications and registrations with respect thereto and goodwill associated therein.
1.12 “Order Form” means a completed client order form, executed by Customer and EverTrue.
1.13 “Personal Information” means information relating to an identified or identifiable individual.
1.14 “Services” means the services provided by or on behalf of EverTrue pursuant to this Agreement and as set forth on an Order Form, including the customization and implementation services described at Section 2, and access to any EverTrue Technology and other offerings that are, in each case, described in such Order Form.
1.15 “Third-Party Data” means data provided by a third party that EverTrue makes available to Customer via the Services.
1.16 “Updates” means any updates, patches, fixes, maintenance releases and the like that EverTrue may automatically download or incorporate into the EverTrue Technology to ensure its ongoing functionality, consistent with stated operational standards, as applicable.
1.17 “User” means Customer’s employees, Customer’s representatives, consultants or contractors, or any agents acting on behalf of Customer, in each case who are authorized to use the Services and have been supplied user identification and passwords by Customer or by EverTrue at Customer’s request.
2.1 Promptly after the Effective Date, Customer shall provide EverTrue with information, resources and assistance as necessary to enable EverTrue to customize and implement, as applicable, the EverTrue Technology for Customer’s purposes. If any such customization and/or implementation involves interfacing or connecting the EverTrue Technology to Customer systems including any third-party system, Customer shall be responsible for ensuring that EverTrue has the right to connect to such systems, for obtaining the consent of the owner or controller of the third-party system, for facilitating access to application programming interfaces (APIs) and other interfaces, and for notifying EverTrue in writing of any conditions or restrictions that apply to such connection or interface. EverTrue shall not be responsible for any defect or failure of the Services due to errors in the Customer Data or Customer’s systems or third-party systems.
2.2 If the customization or implementation of the EverTrue Technology described in Section 2.1 involves the incorporation of Customer’s name, logo or similar indicia (“Customer Marks”) into the EverTrue Technology, Customer hereby grants EverTrue the non-exclusive right and license to use and display the Customer Marks, solely during the Term, in furtherance of this Agreement, and for no other purpose. EverTrue obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and Customer retains all right, title and interest in the Customer Marks. All use of the Customer Marks by EverTrue, and all goodwill associated with such use, shall inure to the benefit of Customer. EverTrue agrees to comply with Customer’s trademark branding guidelines that are provided to EverTrue in writing in connection with such usage.
3. License and Restrictions.
3.1 Subject to the terms and conditions of this Agreement and Customer’s compliance with this Agreement, commencing on the applicable Subscription Start Date, EverTrue hereby grants to Customer a non-transferable, non-exclusive, worldwide right, during the Term, under its (and, only to the extent applicable, its Affiliates’) Intellectual Property Rights, to use (and to authorize Users to use) the Services, and any EverTrue Technology that is incorporated into the Services, solely for the purposes expressly authorized under the applicable Order Form, or if no purposes are specified, then for Customer’s internal business operations related to community relations (including fundraising and development purposes).
3.2 Customer shall not (and shall ensure that Users do not): (i) use the Services or EverTrue Technology except as expressly authorized by EverTrue; (ii) license, sublicense, sell, resell, transfer, assign, distribute, hypothecate, lease, loan or otherwise convey, commercially exploit or make available to any third-party the Services or EverTrue Technology except as expressly authorized in this Agreement, subject to the Documentation; (iii) send or otherwise make available to EverTrue or its Affiliates any software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, or otherwise interfere with or disrupt the integrity or performance of the Services; (iv) modify the Services or the EverTrue Technology, incorporate the Services or EverTrue Technology in whole or in part in any other product or create derivative works based on all or part of the Services or EverTrue Technology; (v) attempt to compromise, circumvent or invalidate any security device or protection for the Services; (vi) reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the EverTrue Technology or other Services; (vii) upload to or transmit from or through the Services anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, harmful or invasive of anyone’s privacy, may violate any law (including copyright, trade-mark and privacy laws) or may give rise to civil or other liability; (xiii) except as permitted by the applicable Documentation or otherwise by EverTrue in writing, use the Services for spamming, extraneous advertising, extraneous bulk message transmission, or other similar activity objectionable to EverTrue in its sole discretion; (ix) attempt to access any of EverTrue’s or its Affiliates’ systems, programs or data that are not licensed under this Agreement or any Order Form; (x) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; or (xi) access or use the Services, or permit them to be accessed or used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without EverTrue’s prior written consent. For the avoidance of doubt, nothing contained herein shall preclude or prohibit Customer from making updates to Customer’s IT infrastructure, provided that any such activities do not conflict with the restrictions set forth in this Section 3.2.
3.3 Customer agrees that it will not upload protected health information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act of 1996) (“HIPAA”) into the EverTrue Technology or the Services, and that furthermore it shall not use the EverTrue Technology or the Services in any way to transmit, view, access, or store any PHI. In no event shall EverTrue or its Affiliates be responsible for Customer’s failure to comply with the foregoing.
3.4 User logins are for authorized Users and cannot be shared or used by more than one individual User.
3.5 EverTrue or its Affiliates may, from time to time and at their sole discretion, include as part of the Services access to Third-Party Data. EverTrue and its Affiliates make no representations and disclaim all warranties with respect to the availability, accuracy or content of such Third-Party Data. EverTrue or its Affiliates may discontinue access to Third-Party Data at any time and at their sole discretion. Any reliance on such Third-Party Data for any purpose is done solely at Customer’s risk. Customer shall not use any Third-Party Data (whether alone or in combination with any other data) other than as a part of the Services. All rights to any Third-Party Data automatically terminate upon termination of this Agreement, and Customer shall, where practicable, delete all Third-Party Data upon termination of the Agreement, other than any data that has been derived from Third-Party Data in compliance with the terms of this Agreement prior to the termination. Customer hereby grants to EverTrue a non-exclusive, fully paid-up, royalty-free, worldwide right and license, along with the right to authorize Subcontractors and Affiliates, to use or otherwise exploit the Customer Data only as necessary to provide or operate the Services, and to provide or promote other products or services to Customer or otherwise communicate with Customer.
3.6 EverTrue shall have the right to replace the Services, or a portion thereof, with another EverTrue service with substantially similar capabilities and functionalities in the event of a termination, sunset or merging of any Services. If any such change has a material adverse effect on Customer’s use of the Services, Customer may terminate the relevant portion of the Order Form(s) within thirty (30) days of receiving EverTrue’s notice by providing written notice to EverTrue, in which case Customer shall be entitled to a refund of any applicable fees prepaid to EverTrue for the period after termination of the relevant portion of the Order Form.
3.7 To the extent Customer Data contains any Personal Information, EverTrue shall not retain, use, sell, or disclose such Personal Information other than as expressly stated in this Agreement or as needed to provide the EverTrue Technology. Further, to the extent Data Protection Legislation applies to EverTrue’s processing of Personal Information on behalf of Customer, EverTrue’s Data Processing Addendum (“Data Processing Addendum”) shall apply and is hereby incorporated by reference. Customer acknowledges that EverTrue may update the Data Processing Addendum in EverTrue’s sole discretion from time to time, and may notify Customer of any such update by any reasonable means, including by posting such updated Data Processing Addendum on EverTrue’s website.
3.8 Customer hereby grants EverTrue a license giving EverTrue the right to access, aggregate, compile and utilize Anonymous Customer Data for purposes of benchmarking, measuring, and/or comparing such Anonymous Customer Data. Customer may opt out at any time, but this may impact certain components of the EverTrue Platform whereby the Customer may see a reduction of service within the EverTrue Platform and thus is not entitled to any refund of any applicable fees paid to EverTrue, nor will it qualify as cause for termination. Further, this license is separate from the Platform Performance Statistics for platform performance outlined in 3.9 below. Such Anonymous Customer Data shall not be treated as Confidential Information of Customer.
3.9 EverTrue may anonymize and/or aggregate Customer Data and use such anonymized and/or aggregated data without restriction. More specifically and without limiting the generality of the foregoing, Customer hereby authorizes EverTrue to collect, compile, use and disclose De-identified information collected in the performance of Services (“Platform Performance Statistics”), for the purpose of analyzing and reporting the effectiveness of the Services, and identifying usage trends, and for other purposes. Platform Performance Statistics shall not be treated as Confidential Information of Customer.
3.10 EverTrue shall host its portal for data management (“Data Manager”) on its or its third-party provider’s servers and provide Customer and Users with access to the Data Manager. EverTrue shall use commercially reasonable efforts to provide access to the Services twenty-four (24) hours per day, seven (7) days per week, subject to scheduled maintenance and Force Majeure. EverTrue will make best efforts to inform Customer at least twenty-four (24) hours in advance of any scheduled maintenance. If access to the Services becomes unavailable due to problems with the servers, EverTrue will diligently repair any such problems so as to maintain Customer’s ability to use the Services.
3.11 EverTrue has industry standard backup and recovery procedures in place that provide for redundant copies of the EverTrue Platform and Customer Data within the EverTrue Platform; however, Customer is responsible for backing up Customer Data on its own systems. Data transmission between Customer and third-party systems and EverTrue via any network outside the EverTrue Platform are exclusively Customer’s responsibility. Neither EverTrue nor its Affiliates assumes responsibility for the reliability or performance of any data network or any data integrity, communications or connection problems Customer may experience that fall outside the Services. Neither EverTrue nor its Affiliates guarantees against data loss or inaccuracies of Customer Data due to connectivity issues or Customer’s hardware failures.
3.12 Subcontracting. EverTrue may from time to time in its discretion engage third parties to perform Services (including any subcontractor of EverTrue, each a “Subcontractor”). EverTrue is and shall remain responsible and liable for all: (i) obligations of EverTrue under this Agreement and the performance required hereunder, including the proper supervision, coordination, and performance of the Services; and (ii) relevant and material acts and omissions of each Subcontractor (including such Subcontractor’s employees and agents, who, to the extent they are involved in providing any Services, are deemed EverTrue personnel) to the same extent as if such acts or omissions were made by EverTrue. The current list of Subcontractors is maintained at https://www.evertrue.com/subprocessors/. The Customer may subscribe to updates concerning the addition or replacement of any Subcontractors and Customer will have an opportunity to object to such changes on reasonable grounds within thirty (30) business days after being notified. If the parties are unable to resolve such objection, and Company is not otherwise able to provide the Services, either party may terminate the Agreement by providing written notice to the other party.
4. Support Services.
4.1 Commencing on the applicable Subscription Start Date, EverTrue shall supply Customer with access to email support to handle support inquiries during the Term. Email support shall be available five (5) days a week, from Monday through Friday, from 8am – 6pm ET.
4.2 Commencing on the applicable Subscription Start Date, EverTrue shall supply Customer with various customer success services during the Term that may include in-person or on-premises User training. If Customer requires on-premises User training, Customer shall be responsible for reimbursing EverTrue for reasonable travel and out of pocket expenses related to EverTrue employees providing such User training.
5. Fees and Renewal Billing.
5.1 Customer shall pay EverTrue the charges set forth on the Order Form (the “Fees”). Unless otherwise provided in the Order Form, EverTrue may invoice the Fees as early as 30 days before the applicable Subscription Start Date, and annually thereafter as early as 30 days before the anniversary of the applicable Subscription Start Date (for any multi-year Initial Term), or as early as 30 days before the first day of the subscription start date for any Renewal Term (in the event of any renewal). If applicable to an Order Form, EverTrue may invoice any implementation fees on or after the Effective Date, unless otherwise provided in the Order Form. EverTrue may invoice any travel and out-of-pocket User training expenses after training is completed. Invoices are due and payable upon execution of an Order Form, upon the anniversary of the applicable Subscription Start Date (for any multi-year Initial Term), or upon the first day of the Renewal Term (in the event of any renewal), unless otherwise provided in the Order Form. All Fees shall be paid in United States dollars.
5.2 If this Agreement is renewed in accordance with Section 11.1 of this Agreement, EverTrue shall send an invoice for the Fees owed for the Renewal Term, as provided for in Section 5.1. The Fee for the Renewal Term will be subject to an increase over the prior term’s Fee of up to eight percent (8%).
5.3 Customer shall be responsible for, and shall pay or reimburse EverTrue for, all applicable state, local, federal and governmental taxes, duties or charges of any kind that may be levied upon either party in connection with this Agreement except for taxes levied on EverTrue’s net income unless Customer is a tax-exempt entity. Customer will furnish proof of such status upon written request.
5.4 If Customer fails to make any payment when due, without limiting EverTrue’s other rights and remedies: (i) EverTrue may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse EverTrue for all reasonable costs incurred by EverTrue in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, EverTrue may suspend Customers access to any portion or all of the Services until such amounts are paid in full.
6.1 Except as expressly granted in this Agreement, EverTrue and, where applicable, its licensors and its Affiliates, retain all of their respective right, title and interest in and to the EverTrue Technology and the Services, together with all Intellectual Property Rights in or pertaining to the EverTrue Technology and the Services, and no other right is created hereunder by implication, operation of law or otherwise.
6.2 The service marks, logos and product and service names associated with the Services (but excluding Customer Marks) are marks of EverTrue or third parties (collectively, the “Marks”). Customer shall have the right to use and display such Marks solely as a part of the Services and for the promotion of the Services to Users, subject to Customer’s compliance with the terms of this Agreement and any branding guidelines provided by EverTrue to Customer. All use of the Marks, and any goodwill associated therewith, will inure to the benefit of EverTrue.
6.3 If Customer provides to EverTrue any suggestions, feedback, input, recommendations or enhancement requests with respect to the Services or the EverTrue Technology (“Feedback”), Customer hereby assigns to EverTrue all right, title and interest in and to such Feedback, together with all Intellectual Property Rights in or to such Feedback. Customer hereby waives any moral rights Customer may have in any such Feedback.
6.4 Except as expressly stated in this Agreement, Customer retains all of its right, title and interest in and to the Customer Data and Customer Marks, together with all Intellectual Property Rights in or pertaining to the Customer Data and the Customer Marks, and no other right is created hereunder by implication, operation of law or otherwise.
7. Confidential Information.
7.1 Receiving Party shall not disclose to any third party the Disclosing Party’s Confidential Information and shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Each party shall limit access and use of Confidential Information to those of its employees and agents who require such access and use in connection with its rights and obligations under this Agreement. Each party shall take appropriate action with its employees and agents to satisfy its obligations hereunder and shall protect the other’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in any event with not less than a reasonable degree of care. Notwithstanding the foregoing, EverTrue shall have the right to disclose Customer Data to its Subcontractors as part of the Services, solely in accordance with the terms of this Agreement.
7.2 The obligations set forth in this Section 7 shall not apply to information (a) previously known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (b) which is or becomes publicly known through no wrongful act of the Receiving Party, (c) received from a third-party under no confidentiality obligation with respect to the Confidential Information, or (d) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party. If Receiving Party is legally required (including by statute, administrative order, or court order) to disclose any Confidential Information, Receiving Party shall, to the extent not prohibited by law, provide the Disclosing Party prompt notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with respect to that disclosure.
7.3 Each party agrees that, in addition to any other remedies available, the other shall be entitled to seek injunctive relief to enforce the terms of this Section 7.
7.4 Each party is responsible for: (i) the security of Personal Information on the systems under its control; and (ii) data security issues arising from its systems or directly resulting from its own third-party vendors or subcontractors, if any, in connection with the Services. Each party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Personal Information (collectively, a “Security Incident”). In the event of a Security Incident involving the other party’s Personal Information, the affected party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Personal Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d) in the event Personal Information was compromised and it is reasonably suspected that such compromise could result in a breach of this Section 7, promptly notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation.
7.6 EverTrue will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of data in violation of any laws applicable to the Services. Customer also acknowledges that by issuing User identifiers and passwords for its authorized Users, Customer controls, defines and manages access to the data that will be used by Customer and its Users within the EverTrue Platform. Customer is responsible for (i) compliance with all foreign and domestic privacy laws and regulations that may be applicable to Customer’s use of the EverTrue Platform and Services, (ii) securing all necessary prior consents for the collection, storage, delivery of Customer Data to EverTrue, and use of data within the EverTrue Platform, and (iii) creation of, and compliance with, applicable policies regarding access and use by Users of any data.
8. Warranty; General Obligations.
8.1 EverTrue warrants that during the Term, the Services will perform substantially as described in accordance with the Documentation made available by EverTrue. Customer’s sole remedy and EverTrue’s sole responsibility for any failure of the Services to conform to this warranty shall be EverTrue’s commercially reasonable efforts to modify the Services so as to conform to this warranty, or, if EverTrue is unable to do so, a pro-rated refund of the fees paid for the period of non-conformance of Services. In the event of any uncured material breach of this warranty lasting longer than thirty (30) days from Customer’s written notice to EverTrue of same, Customer may terminate this agreement in accordance with Section 11.2.
8.2 Customer covenants that throughout the Term, Customer shall be responsible for all activity occurring under Customer’s User accounts and shall: (a) comply with all applicable laws and regulations with respect to Customer’s use of the Services and EverTrue Technology under this Agreement, including those related to data privacy and the transmission of technical or personal data; (b) only use the Services as contemplated by this Agreement; and (c) assume all liability for any unauthorized use of the Services by Customer and Customer’s employees, officers, Affiliates and agents. Customer acknowledges that EverTrue shall have the right, from time to time, to provide Updates or otherwise upgrade the Services. Customer shall notify EverTrue immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
8.3 EXCEPT AS STATED IN SECTION 8.1, EVERTRUE PROVIDES THE SERVICES TO CUSTOMER “AS IS” AND DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EVERTRUE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY EVERTRUE EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY FOR THE SERVICES, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. IN ADDITION, EVERTRUE HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II) ANY IMPAIRMENT OR DISRUPTION OF CUSTOMER’S CONNECTION TO THE INTERNET OR ACCESS TO THE SERVICE. EVERTRUE’S LICENSORS AND AFFILIATES EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES.
9. Limitation of Liability.
9.1 EXCEPT AS PROHIBITED BY LAW, NEITHER CUSTOMER NOR EVERTRUE (AND, WHERE APPLICABLE, ITS LICENSORS AND AFFILIATES) SHALL IN ANY EVENT BE HELD LIABLE, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION.
9.3 EXCEPT AS PROHIBITED BY LAW THE MAXIMUM AGGREGATE LIABILITY OF EVERTRUE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT (EXCEPT AS STATED OTHERWISE IN SECTION 9.4 BELOW) SHALL NOT EXCEED THE LESSER OF (A) TWO (2) TIMES THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED, AND (B) $100,000.00.
9.4 IN NO EVENT SHALL EVERTRUE’S MAXIMUM AGGREGATE LIABILITY (I) UNDER SECTION 7 (CONFIDENTIALITY), THE DATA PROCESSING ADDENDUM OR SECTION 10 (INDEMNIFICATION) EXCEED $100,000.00; AND (II) FOR FRAUD OR INTENTIONAL MISCONDUCT EXCEED $1,000,000.00.
9.5 IN NO EVENT SHALL EVERTRUE’S LICENSORS OR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.1 EverTrue shall indemnify Customer from and against claims that Customer’s use of the Services or the EverTrue Technology, as expressly authorized by the Agreement, infringe any third party’s U.S. copyrights, patent rights, trademark rights and trade secret rights, and all damages and costs awarded or paid in settlement and reasonable attorney’s fees with respect thereto, provided that Customer (a) promptly notifies EverTrue of any such claim and cooperates with EverTrue in the defense thereof and (b) gives EverTrue sole control of the defense and settlement of the claims. EverTrue will have no obligation with respect to any claim arising out of or based upon Customer Data, Customer Marks, Customer’s modification of the Services or use of the Services in a manner not permitted by this Agreement.
10.2 If the Services or the EverTrue Technology or any part thereof provided under this Agreement is the subject of a claim, suit or proceeding for infringement of any U.S. Intellectual Property rights, or in the event of any adjudication that the Services or EverTrue Technology infringes upon any U.S. Intellectual Property rights, EverTrue, at its expense, shall (a) secure for Customer the right to continue using the Services or the EverTrue Technology or part thereof, or alternatively replace or modify the Services or the EverTrue Technology or part thereof to make it non-infringing; or (b) if the foregoing is not commercially reasonable, either party shall have the right to terminate this Agreement upon written notice to the other party and EverTrue shall refund any fees prepaid to EverTrue for the period after such termination, provided that EverTrue’s obligation to refund such prepaid fees shall not impact Customer’s remedies against EverTrue for non-conforming Services under this Agreement. For clarity, any changes made by EverTrue to the EverTrue Technology pursuant to the preceding sentence shall not impact EverTrue’s warranty to the Customer contained in Section 8.1 of this Agreement.
10.3 Except as prohibited by law, Customer shall, at its own expense, indemnify and hold EverTrue, its licensors and its Affiliates and its and their respective officers, directors, employees and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any and all claims (i) alleging that the Customer Data or Customer Marks, or any use thereof, infringes or violates the Intellectual Property rights, contract rights, or other rights of any third party; (ii) related to Customer’s fraudulent or willful misconduct; or (iii) related to Customer’s violation of the license provisions in Section 3. EverTrue shall (a) promptly notify Customer of any such claim and cooperate with Customer in the defense thereof and (b) give Customer sole control of the defense and settlement of the claims provided however, that Customer may not settle any claim against EverTrue unless EverTrue consents to such settlement, and further provided that EverTrue will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
11. Term and Termination.
11.1 Term. This Agreement shall be effective as of the Effective Date and shall continue for the period set forth on the Order Form (the “Initial Term”) and, upon expiration of the Initial Term, shall automatically renew for successive one (1) year renewal terms (each successive renewal term, a “Renewal Term”) (collectively, the “Term”), unless (i) either party provides written notice of its intent not to renew prior to sixty (60) days before the expiration of the then-current term, or (ii) this Agreement is otherwise terminated in accordance with this Section 11.
11.2 Termination for Breach; Suspension. Either party may terminate this Agreement if the other party commits any material breach of this Agreement and fails to remedy the breach within thirty (30) days after written notice of the breach is given. In the event that EverTrue fails to remedy the material breach within thirty (30) days after written notice of the breach is given, Customer will be entitled to reimbursement of a pro rata portion of the corresponding Fee (for example, if the Agreement is terminated on the sixth (6th) month anniversary of a one-year Renewal Term, then one-half of the Fee paid by Customer to EverTrue corresponding to such Renewal Term shall be reimbursed to Customer). Notwithstanding the foregoing, if Customer’s account is overdue (except with respect to fees or charges then under a reasonable and good faith dispute), in addition to any of the other rights or remedies available to EverTrue hereunder, at law or at equity, EverTrue reserves the right to, in its sole discretion, terminate this Agreement or suspend Services, provided that EverTrue has provided Customer fifteen (15) days prior written notice of its intention to terminate or suspend the Agreement and Customer has failed to bring its account current during such period. EVERTRUE AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER, REGARDLESS OF THE THEORY OF LIABILITY, AS A RESULT OF ANY SUCH TERMINATION OF THIS AGREEMENT, INCLUDING ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES.
11.3 Handling of Customer Data Upon Suspension/Termination. Upon termination or suspension of the Services, all access of Customer and its Users to the EverTrue Technology and the Services shall cease. If EverTrue is hosting Customer Data: (a) after the expiration of a reasonable period after termination, not less than one hundred and twenty (120) days, subject to applicable law, EverTrue will irretrievably delete Customer Data; and (b) upon Customer’s written request within thirty (30) days of termination of this Agreement (other than by reason of Customer’s breach), EverTrue will, where applicable, make available to Customer a file of the Customer Data in a format determined by EverTrue in its sole discretion, provided that Customer has paid in full all undisputed amounts owed to EverTrue including the fee for the file of Customer Data described above if a fee is applicable.
11.4 No expiration or termination will affect Customer’s obligation to pay all Fees and expenses that may have become due before such expiration or termination, or entitle Customer to any refund.
12. Government Customers.
This Section 12 applies if Customer is a governmental or public entity, including the U.S. federal government or any agency or instrument of any federal, state, or local governmental entity. The Services are a “commercial item,” as defined at 48 C.F.R. § 2.101, and constitute “commercial computer software,” as defined in 48 C.F.R. § 252.227-7014(a)(1) and as used in 48 C.F.R. §§ 12.212 and 227.7202, or any state equivalent regulation. This commercial computer software and related documentation is provided to Customers and their Users for use, by Customer and on Customer’s behalf, with only those rights as are granted to all other end users pursuant to the Terms and Conditions herein. These Terms and Conditions, including Sections 5 and 11.1 regarding renewals; Section 10.3 regarding indemnification by the Customer; Section 11.2 Termination for Breach; Suspension; Section 14.5 Assignment; and Section 14.9 Governing Law, apply to governmental or public entity Customers except to the limited extent such Customer is prohibited by the laws of its jurisdiction from accepting such provisions. If and to the extent any provision of these Terms and Conditions is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law but to give maximum effect to the Terms and Conditions as written.
13. Customers Subject to FERPA.
This Section 13 applies if Customer is an educational agency or institution subject to the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and the regulations promulgated thereunder (34 CFR Part 99) (collectively, “FERPA”) and the Customer Data is subject to FERPA. EverTrue acknowledges that, for the purposes of providing the Services, EverTrue is a “school official” (as defined by FERPA) with “legitimate educational interests” in the Customer Data, and EverTrue agrees to abide by the limitations and requirements imposed by FERPA on a school official.
14.1 Compliance with Laws. Each party shall comply with all laws applicable to such party with respect to its performance under this Agreement.
14.2 Publicity. Customer acknowledges and agrees that EverTrue may identify Customer as a Customer of EverTrue and may display Customer’s name and logo on EverTrue’s website for such purposes, for so long as this Agreement is in effect or until Customer revokes its consent in writing, whichever is earlier.
14.3 Notices. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a notice is effective only: (i) upon receipt by the receiving party for personal delivery; (ii) when transmitted by facsimile or email; (iii) two (2) business days after depositing the notice in the U.S. mail; (iv) one (1) business day after depositing the notice with a nationally recognized overnight courier; and (v) if the party giving the notice has otherwise complied with the requirements of this Section. Notices by overnight courier or mail to Customer will be delivered to Customer’s mailing address on record with EverTrue. Notices by overnight courier or mail to EverTrue will be delivered to EverTrue, Inc., 33 Arch Street, 17th Floor, Boston, MA 02210.
14.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements or communications, with regard to the subject matter described herein. This Agreement may only be modified in writing, signed by both parties.
14.5 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement to any successor or assignee of its business, whether by merger, change of Control, or sale of all or substantially all of its assets. Any attempt to assign this Agreement or any rights hereunder in violation of this Section 14.5 shall be null and void.
14.6 Waiver and Severability. Waiver by a party of any default by the other shall not be deemed a waiver of any other default. If any term or condition of this Agreement is determined to be invalid or unenforceable in whole or in part for any reason, this Agreement shall be reformed to be valid and enforceable consistent with the intention of the parties as expressed herein to the greatest extent permitted by law.
14.7 No Third-Party Benefits. This Agreement is entered into solely for the respective benefit of the parties and their permitted successors and assigns, and nothing in this Agreement will be construed as giving any right, remedy or claim under this Agreement to any third parties.
14.8 Force Majeure. Neither party shall be in default to the extent that failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond its control, including acts of God, fire, natural disaster, war, terrorism, riot or other civil disturbance, outages of electrical, telecommunications or computer server hosting services, acts of government or labor strikes or lockouts, pandemics (“Force Majeure”), provided that such party shall use its best efforts to overcome any such Force Majeure.
14.9 Governing Law. Unless otherwise specified in the Order Form or required by operation of law, this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws, and any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in the Commonwealth of Massachusetts, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.
14.10 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.11 Relationship of the Parties. The relationship of the parties shall be that of independent contractors. Nothing herein shall be construed to create any agency, partnership, joint venture or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or to anything whatsoever.
14.12 Conflict. If there is any conflict between the provisions of an Order Form, and the provisions of these Terms and Conditions (including any Addendum attached hereto), then the provisions of the Order Form shall control (with respect to the Order Form only). If there is any conflict between the provisions of these Terms and Conditions, and the provisions of an Addendum attached hereto, then the provisions of the Addendum shall control (with respect to the Addendum only). Notwithstanding the foregoing, the terms and conditions of the Data Processing Addendum shall always control with respect to EverTrue’s processing of Personal Information on behalf of Customer.
14.13 Headings, Advice of Counsel, and Drafting. The headings appearing in this Agreement are inserted only as a matter of convenience and for reference only, and in no way define, limit or describe the scope and intent of this Agreement or any of the provisions hereof. In the event of a conflict between the headings and the content of a section, the content of the section will control. The parties acknowledge that they have been advised by counsel of their own choosing and have played equal parts in negotiating this Agreement, and that the terms of this Agreement will be interpreted without any bias against one party as drafter.
14.14 Non-exclusive. Nothing contained in this Agreement shall be construed as creating an exclusive relationship between EverTrue and Customer.
14.15 Survival. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including Sections 1, 3.8, 3.9, 6, 7, 8.3, 9, 10, 11.2, 11.3, 11.4 and 14.
14.16 Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; and (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy.