Blackbaud End-User Agreement
You, the End User ("End User"), and Blackbaud, Inc., with principal place of business at 2000 Daniel Island Drive, Charleston, SC 29492-7541 ("Blackbaud"), as of the Effective Date, agree to be bound by this End User Agreement & Terms of Services Policies that may be updated from time to time online at http://internet.blackbaud.com/eua/data
Blackbaud is the provider of certain software products and services, including the Blackbaud Sphere software platform (collectively, the "Services") supplied by Blackbaud, Inc.
1. ACCEPTABLE USE. End User agrees to Blackbaud’s Acceptable Use Policy as in effect from time to time and located online at http://internet.blackbaud.com/eua/aupolicy
2. OWNERSHIP. End-User acknowledges that Blackbaud owns all right, title, and interest in and to any products, Services, tools, know-how, processes, documentation and software used or created by Blackbaud in connection with this End-User Agreement. Licensee acknowledges and agrees not to claim any right, title and interest in and to the Services and, except for the express authorized usage contained herein or with Reseller, no such right, title or interest is transferred to End User.
3. END-USER COVENANTS. End User agrees the Services provided by Blackbaud for End User under this Agreement may not be resold or otherwise transferred by End User to any person or party.
End User agrees that it shall not directly or indirectly (i) modify, enhance, alter, or prepare derivative works based on any of the Services, including Blackbaud Sphere or its documentation (the "Modifications"); (ii) decompile, decode, unlock, attempt to discover the source code of, or otherwise reverse engineer, any of the Blackbaud Services, including Blackbaud Sphere (the "Reverse Engineering"); and (iii) assist, enable, or permit others to do the foregoing.
End User shall assign passwords to its users and shall maintain, and shall cause its users to maintain, the confidentiality of such password(s). End User shall immediately notify Blackbaud if a password is lost, stolen, disclosed to an unauthorized third party, or otherwise has been compromised. End User shall be entirely responsible for any and all activities made under End User's account, including any fees that may be incurred under End User's password-protected account. End User shall be responsible for determining the level of access given to each of its users.
4. BLACKBAUD CONVENANTS. Blackbaud does not guarantee any level of success in terms of donations, sponsorships, sales, memberships, or any other aspect of this Agreement. Blackbaud may hold, to the extent permitted by law, any funds held by Blackbaud on behalf of Client without interest, and will remit to End User any amounts received by Blackbaud and due to End User under this Agreement within thirty (30) days, or such shorter period as required by law, from their receipt.
5. INDEMNITY. End User indemnifies and holds Blackbaud harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys' fees) incurred by Blackbaud as a result of any third party claim against Blackbaud pertaining to the content on End User's website, for any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to Blackbaud by End User, or for any violation of any of the terms of this End-User Agreement.
6. CONFIDENTIALITY. End User acknowledges that the Services and other materials furnished by Blackbaud in connection herewith constitute valuable, proprietary information and trade secrets of Blackbaud, shall, for the purposes of this End-User Agreement be considered Confidential Information (the "Confidential Information"), and that the disclosure or misuse of which would cause Blackbaud irreparable harm. Accordingly, End User agrees to maintain such Confidential Information confidence, using at least the same degree of care as End User uses to safeguard its own confidential information, but in no event less than reasonable care. End User further agrees that it will promptly inform Blackbaud of any known or suspected breaches of confidentiality, unauthorized use or misuse of such Services or materials, whether by End User personnel or by any third party, and will cooperate with Blackbaud in investigating and halting such unauthorized use or misuse.
7. WARRANTY. All SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING SUCH SCOPE OF WORK OR SERVICES' ACCURACY, PERFORMANCE, OR ANY OTHER MATTER. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, BLACKBAUD HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
8. LIMITATIONS OF LIABILITY. BLACKBAUD'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FOR ANY AND ALL DAMAGES THAT YOU MIGHT INCUR (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). WITHOUT LIMITATION OF THE FOREGOING, BLACKBAUD SHALL NOT (A) HAVE ANY LIABILITY TO END USER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), REGARDLESS OF THE THEORY OR LIABILITY (INCLUDING TORT, CONTRACT AND NEGLIGENCE), AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (B) BRING ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
9. EQUITABLE RELIEF. End User recognizes that the covenants contained in Sections 1,2,3 and 5 hereof are reasonable and necessary to protect the legitimate interests of Blackbaud, that Blackbaud would not have entered into this End-User Agreement in the absence of such covenants, and that End User's breach or threatened breach of such covenants shall cause Blackbaud irreparable harm and significant injury, the amount of which shall be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, End User agrees that Blackbaudshall be entitled, without the necessity of posting of any bond or security, to the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of such covenants and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to Blackbaud at law or in equity.
10. TERMINATION. This Agreement shall commence on the Effective Date and continue until the agreement between you, the End User and Blackbaud or an authorized Reseller, whichever is applicable, terminates. Blackbaud may, if it determines in its sole discretion that the End User has violated any provision of this End-User Agreement, terminate this End-User Agreement immediately. Upon termination of this End-User Agreement for any such reason, all rights granted herein shall immediately cease and End User shall immediately end all use of the Services. Additionally, you shall immediately delete, destroy or return all originals and copies of any Blackbaud confidential information, including all documentation, manuals, instructions and other information associated with the Services, including Blackbaud Sphere, and upon request, provide Blackbaud with certification thereof. The following Sections of this End-User Agreement shall survive its termination: 2,3,5,6,7,8,9, 10, and 11.
11. MISCELLANEOUS: This End-User Agreement is binding on and inures to the benefit of the successors, assigns, and legal representatives of the parties; however, End User's interest shall be assigned only with the prior written consent of Blackbaud. No transfer or assignment of this Agreement shall release End User from its obligations. No waiver by either party shall be a waiver of any subsequent breach of or failure to perform the same or any other term, condition, or obligation hereof. Each party shall be solely responsible for making any governmental filings or reports which such party is required to make as a result of the transactions arising out of this Agreement. It is agreed by the parties hereto that venue of any action arising under this Agreement shall be in Charleston, SC and the laws of the State of South Caronlina (excluding its conflicts of laws rules) shall govern this Agreement. Should any part of this Agreement contravene public policy, or laws of the jurisdiction in which it is sought to enforce the same, then such part shall be considered null and void and have no force and effect, and the balance of the terms and conditions of this Agreement shall remain valid and in full force and effect. Any required notice under this Agreement shall be in writing and delivered to the contact person for notices designated by a party (i) by personal delivery, (ii) by facsimile transmission when receipt is confirmed orally, (iii) by overnight courier upon written verification of receipt, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
IN WITNESS WHEREOF, the parties have caused this End-User Agreement to be executed by their duly authorized representatives.
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