Last updated: October 23, 2018
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 “Authorized User” means a Customer employee, consultant, contractor or agent authorized by Customer to access and use the Service on behalf of Customer, in each case subject to such person’s agreement to be bound by the terms of this Agreement.
1.2 “Customer Data” means all data or information submitted by or on behalf of Customer to the Service.
1.3 “Order Form” means an ordering document executed by the parties that specifies the Service and Professional Services, if applicable, purchased by Customer under this Agreement. Each Order Form shall incorporate this Agreement by reference.
1.4 “Professional Services” means consulting services or other services beyond the scope of the Service (as explained in Section 2 below) provided by Virtuous subject to a separate Order Form or statement of work.
1.5 “Service” means the web and mobile donor software provided by Virtuous.
1.6 Subscription Term” means the period identified in the Order Form.
1.7 “Support Services” means the support services provided by Virtuous in accordance with Virtuous’ then-current support policy.
1.8 “Virtuous Materials” means any materials that Virtuous provides to Customer as part of, or in the course of providing, the Service or the Professional Services.
2.1 The Service. Subject to the terms of this Agreement, Virtuous shall make the Service available to Customer during the Subscription Term, solely for Customer’s own internal business purposes. Customer agrees that its subscription to the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Virtuous with respect to future functionality or features.
2.2 Technical Support. During the Subscription Term, Virtuous will provide up standard support through our Virtuous support portal. Phone support for the Subscription Service is available 8AM to 6PM Mountain Standard Time (MST), Monday through Friday, excluding US national holidays. Phone support must be scheduled with your assigned customer success coach. Virtuous will use commercially reasonable efforts to (i) maintain the security and integrity of the Service and (ii) to make the Service available 24 hours a day, 7 days a week, except for periodic maintenance or downtime caused by circumstances beyond Virtuous’ reasonable control.
3.1 Upon request, Virtuous will provide Professional Services as provided in an Order Form or statement of work that go beyond the Service provided in this Agreement. Fees for Professional Services are in addition to the Subscription Fee. Unless otherwise agreed, all Professional Services are performed remotely. If performed on-site, Customer will reimburse Virtuous for reasonable costs and expenses incurred in connection with the Professional Services.
3.2 Final fees and expenses shall be calculated when a Invoices are prepared and rendered based on billable hours completed. Hours usage will be reported bi-weekly and estimates will be provided in written form before completing new hours.
3.3 The Client shall reimburse the Developer for all pre-approved expenses arising from this assignment including travel, room, and meals to Client site if on-site consulting or training are requested.
4.1 Customer is responsible for all Authorized Users’ access to and use of the Service and compliance with this Agreement and its Acceptable Use Policy. Customer shall prevent unauthorized access to, or use of, the Service, and notify Virtuous promptly of any such unauthorized access or use and shall comply with all applicable laws in using the Service. Customer shall not (i) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource or make the Service or the Virtuous Materials available to any third party; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service or the Virtuous Materials, or access or use the Service or Virtuous Materials in order to build a similar or competitive product or service; (iii) use or launch any automated system, including, “robots” or “spiders”; (iv) use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Service; or (vi) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
No Sensitive Information. You agree not to use the Service to manage or store any sensitive information. We will not have any liability that may result from your use of the Service to store or manage sensitive information. “Sensitive Information” means (a) storing credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; physical or mental health condition or information; or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information.
5.1 Fees. Customer shall pay all fees specified in Subscription Agreement. All fees are payable in United States dollars, payment obligations and fees paid are non-refundable. All fees and charges to be paid by check under this Agreement will be invoiced in advance and are due net fifteen (15) days from the invoice date. All recurring fees and charges to be paid by automatic means (credit card or bank account/ACH) will be automatically charged at the beginning of your billing cycle. A receipt for each payment will be provided to you and a charge will appear on your credit card or bank statement. You agree that no prior notice will be provided to you unless the date or amount changes, in which case you will receive notice at least 10 days prior to the payment being collected. Customer is responsible for providing complete and accurate billing address and contact information to Virtuous. If Customer believes a particular invoice or charge is incorrect, Customer must contact Virtuous in writing within fifteen (15) days of such invoice date to be eligible to receive an adjustment or credit.
5.2 Past Due Payments. Any payment not received by Virtuous by the due date will accrue interest at the greater of 1.5% of the outstanding balance per month, from the date such payment was due until the date paid. If Customer’s account is thirty (30) days or more overdue, Virtuous reserves the right to suspend Customer’s access to the Service, without notice, until such amounts are paid in full.
5.3 Taxes. Unless otherwise stated, Virtuous’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Virtuous’ net income or property. If Virtuous has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Virtuous with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4 Cancellation. Subscriptions can only be canceled at the end of the annual term with written notice by the Customer 30 days prior to renewal date.
6.1 Except for the limited rights expressly granted to Customer hereunder, Virtuous reserves all rights, title and interest in and to the Service, the underlying software, the Virtuous Materials, and the Professional Services, including all related intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
6.2 Customer Data. As between Virtuous and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed the Confidential Information of Customer under this Agreement. Virtuous shall have the right to access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement during the Term, and as otherwise expressly permitted in this Agreement. Virtuous shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Customer Data unless, and only to the extent that, such deletion, alteration, destruction, damage, loss or failure to store any Customer Data is directly and proximately caused by Virtuous’ actions and subject to any limitations set forth in this Agreement.
6.4 Protection of Customer Data. Virtuous will maintain appropriate physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use or modification of Customer Data by Virtuous except (a) to allow the Virtuous team to prevent or address service or technical problems, (b) to extract fully anonomized donation data for use in Virtuous research, (c) as compelled by law, or (c) as the Customer expressly permits in writing.
6.6 Virtuous uses US-based service providers for Customer Data storage. Service providers use either Privacy Shield or have executed Standard Contractual Clauses (as approved by the European Commission). When processed in the United States, the personal data of EU citizens that is processed by Virtuous an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation). By agreeing to these Terms, the Customer grants Virtuous a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the Virtuous Service. Virtuous will inform the Customer of changes in such processors in accordance with the procedure of modifying these Terms as stipulated in section 3 of these Terms.
List of processors for Customer Data:
* Amazon Web Services Hosting services in US (Privacy Shield certified)
* Microsoft Azure Hosting services in US (Privacy Shield certified)
* FullContact (API to retrive public social media and personal data. Privay Policy here : https://www.fullcontact.com/privacy-center)
6.7 Data Processing Contract – For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the Customer as the data controller and Virtuous as the data processor. The Customer hereby instructs the Virtuous to process the data as described in these Terms.
6.8 Subject matter and nature of processing. Virtuous provides the Platform where the Customer, as the data controller, can collect, store and organize the personal data of data subjects determined by the Client. The Platform has been designed to work as a CRM tool but, to the extent not regulated by these Terms, the Client decides how they use the Platform.
6.9 Virtuous reserves the right to develop and commercialize benchmarks and measures based on Aggregated Data. “Aggregated Data” shall mean Customer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Subscriber’s identity may not be derived. The foregoing shall not limit, in any way, Virtuous’ confidentiality obligations set forth in Section 6.
6.10 Suggestions. Virtuous shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Subscribers relating to the features, functionality or operation of the Service, or the Professional Services.
7.1 Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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 or the circumstances of disclosure, including but not limited to the Customer Data, the Service and the Virtuous Materials. The obligations in this Section 7 shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care. Either party may disclose Confidential Information to its personnel who are subject to confidentiality obligations at least as restrictive as the terms set forth herein. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In the event of breach or threatened breach of this section, the parties acknowledge that monetary damages may be inadequate and that the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
8.1 Virtuous Warranties. Virtuous warrants that for a period of thirty (30) days following the effective date of the Subscription the Services will perform in accordance with the features described on the client proposal and Virtuous website. Customer’s exclusive remedy and Virtuous’ entire liability for a breach of the warranties set forth in this section shall be (i) for Virtuous to provide the Service without the applicable non-conformities, or (ii) if Virtuous is unable to provide such Service as warranted within a reasonable time following receipt of written notice of breach, Customer shall be entitled to terminate the applicable Order Form and receive a refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term following the effective date of termination. Except as expressly provided in this agreement, Virtuous and its licensors make no warranties of any kind whether express, implied, statutory or otherwise, and specifically disclaim all implied warranties, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third party rights, to the maximum extent permitted by applicable law.
8.2 Customer Warranties. Customer warrants that it shall, at all times, comply with all applicable federal, state and local laws and regulations and with Virtuous’ Acceptable Use Policy. Customer further warrants that: (i) it owns or otherwise has sufficient rights in the Customer Data to grant to Virtuous the rights to use the Customer Data granted herein; (ii) it has not falsely identified itself nor provided any false information to gain access to the Service; and (iii) all billing and contact information provided by Customer is true and correct.
9.1 Indemnification by Virtuous. Virtuous shall indemnify, defend and hold harmless Customer against any claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder directly infringes a U.S. patent, copyright, or trademark of a third party or misappropriates such third party’s trade secrets. Virtuous shall have sole control of the defense of any claim hereunder and Customer shall reasonably cooperate with Virtuous in respect thereof. Virtuous shall have no indemnification obligation for infringement claims arising from the combination of the Service with any of Customer’s products, services, hardware, data or business processes or use of the Service by Customer other than in accordance with this Agreement. If the Service is held or likely to be held infringing, Virtuous shall have the option, at its expense to (i) replace or modify the Service as appropriate, (ii) obtain a license for Customer to continue using the Service, (iii) replace the Service with a functionally equivalent service; or (iv) terminate the applicable Service and refund any prepaid, unused fees applicable to the remaining portion of the Subscription Term of the applicable Service following the effective date of termination. This Section 9.1 states Virtuous’ entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
9.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Virtuous against any Claims made or brought against Virtuous by a third party alleging that the Customer Data, infringes or otherwise violates a third party’s property, privacy or other rights or arising from Customer’s use of the Service. Customer shall have sole control of the defense of any claim hereunder and Virtuous shall reasonably cooperate with Customer in respect thereof.
10.1 Limitation of Liability. Except for Virtuous’ indemnification obligations set forth in Section 9.1, in no event shall Virtuous’ aggregate liability arising out of or related to this agreement, when in contract, tort or under any other theory of liability, exceed the amounts actually paid by customer under the applicable order in the twelve (12) month period immediately preceding the event giving rise to the liability.
10.2 Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party or its licensors for any lost profits or for any indirect, punitive, special, incidental or consequential damages however caused and, whether in contract, tory or under any other theology of liability, whether or not the party from which damages are being sought has been advised of the possibility of such damages.
11.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscriptions have expired or been terminated. Subscriptions will automatically renew for a period equal to the previous Subscription Term upon the expiration of the initial Subscription Term or any renewal Subscription Term unless either party gives the other notice of non-renewal at least thirty (30) days prior to the expiration of the relevant Subscription Term. Auto-renewal will require payment net fifteen (15) days from the start of the new agreement.
11.2 Termination for Cause. Either party may terminate this Agreement or an Order Form for cause: (i) if the other party fails to cure a material breach of the Agreement within thirty (30) days of receipt of written notice of such material breach from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of this Agreement shall not relieve Customer of its obligation to pay any fees accrued or payable to Virtuous relating to the Service or the Professional Services prior to the effective date of termination, and Customer shall immediately pay to Virtuous all such fees upon the effective date of termination.
11.3 Surviving Provisions. The provisions of Sections 5, 6, 7, 8, 9, 10, 11.3, and 12 shall survive any termination or expiration of this Agreement.
11.4 Your Data Portability and Deletion. Upon request by You made within 60 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 60-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement.
12.2 Notices. All notices given pursuant to this Agreement shall be in writing and shall be delivered personally, recognized overnight carrier or registered mail to the address set forth in the Order Form, or to such other address or individual as the parties may specify from time to time by written notice to the other party. Any notice shall be deemed given upon receipt.
12.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
12.5 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Virtuous. Any attempt to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6 Governing Law, Dispute Resolution. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. The state and federal courts located in Maricopa County, Arizona shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.7 Force Majeure. Neither party shall be liable for delay or failure to perform its obligations hereunder (other than obligations to pay fees) if the delay or failure to perform is caused by or results from conditions or causes beyond its reasonable control, including but not limited to acts of God, government controls or regulations, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving power systems.
12.8 Virtuous may include the name and logo of Customer in lists of customers or vendors on its website or in marketing material.
12.9 Entire Agreement. This Agreement, including all Order Forms and Statements of Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. In the event of a conflict or inconsistency between the terms of this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.
12.10 Counterparts. This Agreement and any Order Form or Statement of Work may be signed in counterparts, which taken together shall form one and the same instrument. An executed copy of this Agreement delivered by facsimile or electronic mail will constitute valid execution and delivery.