Database Service, Training and Conversion Agreement
Firespring is an authorized reseller of Bloomerang, an Indianapolis, Indiana based company that offers donor-based applications. These Terms and Conditions are relative to the signed Proposal between your Organization (as indicated on the proposal) and Bloomerang by Firespring (“Bloomerang”), which herein and after may be referred to as (“Bloomerang by Firespring”), (“Firespring”) or (“Bloomerang”). Firespring will serve as Organization’s primary contact in relation to the applications detailed in this Agreement. That Proposal, as modified from time to time by mutual written agreement, is referred to as the “Proposal.” These Terms and Conditions and the Proposal are collectively referred to as the “Agreement.”
Article 1. Database Service
Section 1.1 The “Database Service”.
The "Database Service" consists of a browser interface, data encryption, data access, Bloomerang software access and data storage. Your Organization is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Database Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Database Service. Bloomerang reserves the right to monitor usage of the Database Service for diagnostic and security protection purposes and the right to improve and modify the Database Service at any time without notice.
Section 1.2 Use of Database Services, including Proprietary Software.
(a) Bloomerang grants to your Organization, subject to the terms and conditions of this Agreement, a non-exclusive, non-sublicensable and non-transferable license to access and use the Database Service for an UNLIMITED number of users and up to the number of constituent records as designated in the proposal. If your Organization exceeds the number of records designated in the proposal, you agree to pay the then-current standard rate for records exceeding your designated amount.
(b) You agree that neither your Organization, nor any person accessing the Database Service by means of your Organization’s account, will, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Bloomerang’s software; modify, translate or create derivative works based on the software; or rent, lease, distribute, assign or otherwise transfer rights to the software or Database Service. Bloomerang retains exclusive ownership throughout the world of all software related to the Database Service.
(c) You agree that your Organization will use the Database Service in compliance with all applicable laws, including without limitation copyright, trademark, obscenity and defamation laws.
(d) During the term of this Agreement and at all times thereafter, neither party shall disclose, sell or transfer to any third party, other than for the performance of this Agreement or as required by law, any confidential information and intellectual property of the other party without the express written consent of the other party. This includes but is not restricted to personal and business information stored by either party.
Section 1.3 Passwords and Security.
Your Organization is responsible for any and all activities that occur under its account(s) and the confidentiality of all its passwords in connection with the Database Service. Your Organization shall notify Firespring of any unauthorized use of its account(s) or any other breach of security. Firespring will suspend or change access to your Organization’s account within one (1) business day or less after receipt of written notice from you that a password has been lost or otherwise compromised.
Section 1.4 Credit Card Information.
For all ecommerce transactions processed on the Bloomerang hosted system, the credit card information that is collected is used solely for the purpose of completing the specific transaction. After the transaction is complete, the credit card data is encrypted and may only be used for future authorized transactions.
Section 1.5 Application Programming Interface.
This section does not apply if your Organization does not request access to Bloomerang’s application programming interface, which is an interface to push data to, or pull data from your Bloomerang database (the “API”). The API may only be licensed to your Organization upon submission of an application along with any requested information and receipt of Bloomerang’s approval, which may be granted or denied in Bloomerang’s sole discretion. If Bloomerang provides your Organization with access to the API, it will be deemed to be included in the “Database Services” for purposes of this Agreement, except that any consulting services, support or other assistance requested by your Organization relating to the API are not included in any Fees specified in the Proposal unless expressly stated therein. Bloomerang may limit the amount of data that may be transferred by your Organization through the use of the API, the number of concurrent sessions that your Organization may establish with the API, and/or any other activity with respect to the API, in its sole discretion and may change such limitations from time to time. Bloomerang also reserves the right to terminate your Organization’s license to use the API at any time after such license is granted if Bloomerang believes your Organization is using the API in an inappropriate manner. The API shall be treated by your Organization as confidential information of Bloomerang. Any breach of the foregoing restrictions (or this Agreement) by such third party service provider shall be deemed a breach of this Agreement by your Organization.
Article 2. Implementation and Training
Section 2.1 Proposal.
The Proposal between your Organization and Firespring shall set forth the details regarding implementation, training, fees and billing/invoicing information. The Proposal may be amended from time to time as mutually agreed upon by the parties in writing.
Section 2.2 Implementation.
The details and timing for implementation of the Database and Conversion Services are set forth in the Proposal. While Firespring will employ commercially reasonable efforts to meet the milestones in the Proposal, Firespring will not be liable for any delays.
Section 2.3 Help Desk Support.
The types of help desk support and descriptions of each training type for the Database and Conversion Services are set forth in the Proposal.
Section 2.4 Fee for Special Services.
Firespring shall perform any special services identified in the Proposal on a time and materials basis at its standard billing rate set forth in the Proposal.
Section 2.5 Billing and Invoices.
Special services and/or consulting fees will be billed 50% in advance in order to secure your right to schedule classes or consulting. Unless otherwise provided in the Proposal, your Organization agrees to pay all invoices within ten (10) days of receipt. The remaining 50% for any special services or consulting will be billed upon completion of any engagement. All regular billing for service and telephone support is done via ACH or Credit Card as outlined in Article 5.
Article 3. Conversion Services
Section 3.1 The Conversion Service.
The “Conversion Service” consists of Firespring converting your Organization’s data into file structures that are compatible with Bloomerang software.
Section 3.2 Responsibility.
Your Organization is responsible for providing the original data and ensuring the accuracy of the converted data subsequent to the conversion. Your Organization agrees to promptly review your data for accuracy and completeness and report any issues or problems to Firespring prior to having your data loaded onto the Production server.
Section 3.3 Correction of Errors.
Firespring will correct any issues or problems, which are reported to it within ten (10) days after the data is placed on a test server for review. Firespring’s correction of the issue or problem reported in that period is your Organization’s exclusive remedy, and Firespring’s only liability, for any inaccuracy in the converted data. It is the responsibility of your organization to review your data during the 10-day testing phase. Any changes made after the 10-day test phase will not affect the billing schedule. Once your organization has approved your data for loading onto the Bloomerang production server, any changes or adjustments in the converted data are subject to additional costs. Should your Organization cancel the conversion at any time after Firespring has begun work on the conversion, your Organization will be liable for the pro-rata % of the completed work at the time Firespring receives written notice of the cancellation.
Article 4. Data
Section 4.1 Protection of Data.
Once the Conversion is complete, your Organization will control all logins and passwords which provide access to the Data.
Section 4.2 Data Security.
In the agreement between Bloomerang and its infrastructure provider, Amazon Web Services, you will be provided the full scope of their security.
Section 4.3 Title to Data.
All of your Organization’s data remains the sole property of your Organization. Your Organization may download its data for free via the standard reporting parameters provided by the Database Service any time during the term of this Agreement. Bloomerang by Firespring will provide summary aggregate views of certain data as part of its reporting processes. Those views will never compromise any individual data in any fashion. Bloomerang by Firespring will provide your Organization its data, upon request, in a standard format for a fee equal to the lesser of either four (4) months’ rental fees or $1,500.00 plus any applicable taxes. Bloomerang by Firespring is not responsible for storage or retention of data more than thirty (30) days after termination of this Agreement. Should you desire Bloomerang by Firespring to keep your data protected on our servers without access rights for a stated time period there will be a fee of ½ of your standard base fee paid on your normal billing cycle.
Article 5. Payment
Section 5.1 Payment.
Your Organization agrees to provide accurate and complete contact and either ACH or credit card billing information to Firespring, and to pay the applicable fees set forth in the Proposal (the “Fees”).
Section 5.2 Database Services.
The Database Service period will begin and processing of your ACH or Credit Card will occur by the following scenarios:
For purchases of a quick data conversion: Billing begins on the first day of the next new month following four weeks from the signed Agreement date.
For purchases of a custom data conversion: Billing begins on the first day of the next new month, following eight (8) weeks from the signed Agreement date.
Section 5.3 Conversion Services.
Your Organization agrees that 50% of all custom data conversion fees will be paid at the time of the initial order and the remaining balance will be processed with your first ACH or CC transaction for the Bloomerang application after your data is converted into Bloomerang and placed on a test server for your review.
Section 5.4 API Services.
Consulting services, support or other assistance provided to your Organization relating to the API will be processed at the then-current standard rate for API related work.
Section 5.5 Additional Terms.
Firespring reserves the right to change the fees and to institute new fees or charges with thirty (30) days prior notice to you (by which notice may be sent via email) and further provides such fees shall not be increased by more than the annual change in the Consumer Price Index.
Section 5.6 Suspended Access.
Your Organization’s access to the Database Service may be suspended if its account is delinquent for more than ten (10) days. Data is subject to permanent removal at thirty (30) days delinquency.
Article 6. Term and Termination
Section 6.1 Term.
The term of this Agreement is one year (based on the date the Database Service period begins pursuant to Section 5.2) and shall automatically renew month-to-month thereafter unless either party provides written notice of termination at least forty five (45) days prior to each renewal date. Subsequent purchases of services from Bloomerang by Firespring will automatically be governed by the terms and conditions of this Agreement. In the event of any conflict between the terms and conditions of this Agreement and any subsequent ordering document, this Agreement shall control. Bloomerang by Firespring may terminate this Agreement immediately or suspend your Organization’s access to the Database Service upon any material breach of this Agreement by your Organization (such as failure to timely pay for the Database Service) or if Bloomerang by Firespring determines that your Organization may be performing activities harmful to Bloomerang by Firespring or other users of the Database Service. In situations where a client is paying no money for services, Bloomerang by Firespring may, without notice, terminate this Agreement based upon one hundred twenty (120) days of non-use (zero logins) by your Organization.
Article 7. Limitation of Liability
Section 7.1 Warranty Disclaimer.
ALTHOUGH BLOOMERANG WILL TAKE COMMERCIALLY REASONABLE STEPS TO PROVIDE ERROR-FREE AND CONTINUOUS SERVICE, BLOOMERANG DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE DATABASE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. AS A RESULT, THE DATABASE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND BLOOMERANG DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE and NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOUR ORGANIZATION.
Section 7.2 Infringement Indemnity.
Bloomerang shall indemnify and defend your Organization against any third party claims that the Bloomerang software (the “Software”) provided by Bloomerang to your Organization in connection with the Database Service infringes any United States or Canadian patent or copyright, provided that Bloomerang is given prompt notice of such claim and is given information, reasonable assistance and the sole authority to defend or settle said claim. In the defense or settlement of any claim, provided this Agreement has not been terminated, Bloomerang shall, in its reasonable judgment and at its option and expense: (i) obtain for your Organization the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if Bloomerang determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the license for the infringing Software and return the license fee paid by your Organization for such Software. Bloomerang shall have no liability to indemnify and defend your Organization to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services or programs created or furnished by or on behalf of your Organization; (ii) the alleged infringement is the result of a modification made by anyone other than Bloomerang; or (iii) your Organization uses the Software other than in accordance with this Agreement or any instructions or other documentation provided by Bloomerang. This Section states Bloomerang’s entire liability and your Organization’s sole and exclusive remedy for claims relating to infringement.
Section 7.3 Limitation of Liability.
BLOOMERANG BY FIRESPRING’S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), IS LIMITED TO THE FEES PAID BY YOUR ORGANIZATION TO BLOOMERANG BY FIRESPRING UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OR INJURY THAT GAVE RISE TO THE LIABILITY; PROVIDED, HOWEVER, THAT SUCH LIMITATION DOES NOT APPLY TO DAMAGES TO YOUR ORGANIZATION DIRECTLY CAUSED BY WILLFUL OR MALICIOUS MISCONDUCT BY BLOOMERANG BY FIRESPRING OR ITS EMPLOYEES. BLOOMERANG BY FIRESPRING WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE SERVICE), WHETHER OR NOT FORESEEABLE AND EVEN IF BLOOMERANG BY FIRESPRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL APPLY TO ANY ACTION OR ARBITRATION HEREUNDER.
Article 8. Miscellaneous
Section 8.1 Survival.
Article 5 (with regard to your Organization’s obligation to pay any outstanding amounts), and Section 7.3 and Section 8.3 will survive termination of this Agreement. Any Fees prepaid for Database Services that are not provided due to termination will be refunded to your Organization after any unpaid invoice balances are deducted.
Section 8.2 Construction.
In the event of a conflict between the Proposal and these Terms and Conditions, these Terms and Conditions shall control.
Section 8.3 Miscellaneous.
This Agreement is between Bloomerang by Firespring and your Organization, and is not for the benefit of any third party (including, if applicable, any user accessing the Database Service by means of an account established by your Organization). The failure of either party to exercise any right provided for herein will not be deemed a waiver of that right or any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, the remainder of this Agreement will remain in effect. This Agreement is governed by and construed in accordance with the laws of the State of Nebraska excluding its conflict of laws rules. Except for any actions deemed necessary by Bloomerang by Firespring to protect its intellectual property rights, all disputes under this Agreement shall be subject to arbitration before a single arbitrator in the English language in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) held at an agreed-upon location, or if not agreed upon, then at a neutral location designated by the AAA. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any action or arbitration related to this Agreement must commence within one (1) year after the cause of action arose. The prevailing party in any action or arbitration proceeding to enforce rights under this Agreement will be entitled to recover its costs and reasonable attorneys’ fees. This Agreement (including the Proposal) is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements, communications and other understandings relating hereto. All modifications to this Agreement must be in writing signed by both parties. No agency, partnership, joint venture or employment is created as a result of this Agreement and neither party has any authority to bind the other party. Except as otherwise specified herein, all notices under this Agreement must be in writing.