Bloomerang Subscription Agreement

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT governs your access to and use of the Services provided by Bloomerang under the Proposal. The individual accepting these terms on behalf of their organization represents and warrants that they have full authority to bind the organization to these terms or, if they do not have such authority, they agree to be personally liable for all fees and obligations herein.

1. DEFINITIONS

1.1. “Agreement” means the combination of this Subscription Agreement, including any addenda and supplements thereto, and the Proposal.
1.2. “Proposal” means the proposal provided by Bloomerang that references these terms and specifies the Services to be provided.
1.3. “Fees” mean any amount due for any of the Bloomerang products or services.
1.4. “Recurring Fees” means the periodic fees for your subscription to any subscription-based Services.
1.5. “Services” means any and all products and services that are ordered by you in the Proposal or subsequent agreement and made available by us.
1.6. “We,” “us” or “our” means Bloomerang LLC.
1.7. “You” or “your” means you, the non-profit organization or other legal entity for which you are accepting this Agreement.

2. ACCEPTANCE OF AGREEMENT

This Agreement includes any terms and conditions listed in your Proposal, starting at the Pricing Overview page, govern your Use of our Services. By signing the Proposal and/or using our Services, you acknowledge and agree that:

you have read and understood this Agreement and agree to be bound by its terms and conditions, as amended from time to time, and
if you are entering into this Agreement on behalf of a non-profit organization or other legal entity, you represent you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity.

If you do not agree with these terms, you must not accept this Agreement and may not use the Services.

3. CHANGES TO AGREEMENT

We reserve the right, from time to time, with or without notice to you, to change the terms of this Agreement, provided that we may not make any change having a material adverse impact on your rights under the Agreement or your use of the Services without providing you with prior written notice. Any revisions shall be effective as of the date posted, and your continued use of the Services after receiving notice shall be deemed your consent to those revisions. The most current version of this Agreement can be found at www.bloomerang.co/tac.

4. LICENSE

Subject to the terms and conditions of this Agreement, we grant you a non-exclusive, non-sublicensable and non-transferable license to access and use the Services as defined in your Proposal and subject to any restrictions therein.

5. TERM

Unless otherwise specified in your proposal, the initial term of this Agreement is two (2) years. The initial term begins the day the Agreement is signed. This Agreement shall automatically renew for additional one-year terms unless either party provides written notice of termination at least forty-five (45) days prior to the end of the initial term or any subsequent extension.

6. PROVISION OF SERVICES

We shall make any Services purchased by you available to you during the term of the Agreement. You agree that your purchase of any Services we offer are neither contingent on the delivery of any additional functionality or features not described in the Proposal nor dependent on any oral or written comments regarding future functionality or features.

7. PRICING AND PAYMENT

7.1. Pricing. Recurring Fees for Services are arranged into pricing tiers for a given range of records stored in your database. Additional fees may apply for excessive use above your subscription amounts(e.g. constituents, emails sent, or attachment storage). For the most current Services pricing, check https://bloomerang.co/pricing or contact a sales representative. For a price quote for other Services, contact a sales representative.
7.2. Payment Method. You shall provide us with accurate and valid ACH or credit card billing information via the payment authorization page in your Proposal which will be used to pay for services rendered. Failure to do so will result in a service fee.
7.3. Payment Authorization. You authorize us to process payment for your Recurring Fees and any other fees or charges you may incur in connection with the use of our Services at the current rate to your payment method provided along with this Agreement.
7.4. Billing. We will process your Recurring Fees as described in the Proposal. The start date of the Services shall be concurrent with the start date of this Agreement’s Term as defined in Section 5. Bloomerang will begin processing your ACH or Credit Card within one (1) day of that date.
7.5. Additional Terms. We reserve the right to change the Recurring Fees upon completion of any contract period. Current pricing can be found at https://bloomerang.co/pricing.
7.6. Suspended Access. We may suspend your access to the Services if your account is delinquent for more than ten (10) days. Your data is subject to permanent removal at thirty (30) days delinquency.

8. IMPLEMENTATION AND CONVERSION

8.1. Overview. If provided in your Proposal, we will convert your data into file structures that are compatible with the Bloomerang Services. This conversion necessarily involves a number of steps requiring your cooperation with us. Should you fail to respond/act in a timely manner, or if you provide inaccurate or incomplete information, or if you use fields in a manner other than intended, the implementation may be delayed.
8.2. Implementation Process. The standard implementation process shall generally follow these steps; however, we may determine, in our sole discretion, that your data requires additional or modified processes:
1. You provide your data to us;
2. We discuss how to convert/map your data from its current form to Bloomerang’s format with you;
3. A programmer writes a utility to convert your data according to the mapping.
4. We load your data onto a test server and provide you with a walkthrough of your sample data to identify errors and/or changes;
5. Upon receiving your written authorization approving the changes/corrections, our programmer adjusts the utility based on input from the walkthrough. You continue to access and interact with your data on the test server to familiarize yourself with the Services;
6. We perform a final conversion and migration of the data onto the production server and you fully assume control of the data.
7. Original data files used for the conversion are retained for 90 days after the final conversion date.
8.3. Responsibility for Accuracy. You are responsible for providing your original data and ensuring the accuracy of the converted data throughout the implementation process. You shall continue to monitor and review your data for accuracy and completeness and report any issues or problems to us prior to having your data loaded onto the production server.
8.4. Correction of Errors. We will correct any issues or problems which are reported to us within fourteen (14) days after data is placed onto the testing server for review. Our correction of the issue or problem reported in that period is your exclusive remedy, and our only liability, for any inaccuracy in the converted data. It is your responsibility to immediately review our corrections and inform us of any additional issues or problems. Once you have approved your data for loading onto the production server, any changes or adjustments in the converted data are subject to additional costs. Should you cancel the conversion at any time after we have started the process, you will be responsible for the pro-rata percentage of the completed work at the time we receive written notice of the cancellation.

9. DATA

9.1. Title to Data. All of your data remains your sole property. We may provide public-facing reports that include general insights about our customers and their use of our Services; provided that you will not be identified in any such reports, and any customer data shall be anonymized, aggregated, and contain no customer confidential or proprietary information or any personal information protected by privacy and data protection laws.
9.2. Access to Data. You may download your data for free via the standard reporting parameters provided by the Services any time during the term of this Agreement. We are not responsible for storage or retention of your data more than ninety (90) days after termination of this Agreement. Should you desire for us to keep your data protected on our servers without access rights for a stated time period, there will be a fee of one-half (½) of your Recurring Fees for Services.
9.3. Protection of Data. Once the implementation is complete, or immediately upon execution of the Agreement if no implementation services are included, you will control all logins and passwords which provide access to your data. We shall not disclose your data except:
1. as required by law
2. as provided in Section 9.1 above and
3. as part of the email functionality of the Services, to validate and verify email addresses with our third-party service providers and to remove or exclude bad or unverifiable email addresses.
9.4. Credit Card Information. For all e-commerce transactions processed on our 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.

10. USE OF SERVICES

10.1. Restrictions and Acceptable Use. You may not yourself, directly or indirectly:
1. create derivative works based on any part of the Services,
2. copy, frame, or mirror any part or content of the Services,
3. reverse engineer the Services,
4. copy any features, functions, or components of the Services or access the Services to build any competitive product or service,
5. use the Services in any way that is threatening, abusive, harassing, stalking, defamatory, false, misleading, or fraudulent; invasive of another’s privacy or in violation of another’s legal rights; contains vulgar, obscene, indecent, or unlawful material; advocates for or demonstrates hate, hostility, or violence towards members of any race, religion, color, sex, age, national origin or ancestry, or on the basis of genetic information, marital status, parental status, sexual orientation, gender identity and expression, disability, or status as a veteran; or
6. encourage, authorize, or enable any third party to do any of the foregoing.
10.2. Other Obligations. You will use the Services in compliance with all applicable laws, including without limitation medical record, internet privacy, copyright, trademark, obscenity and defamation laws. You are responsible for any and all activities that occur under its account(s) and the confidentiality of all its passwords in connection with the Services. You shall notify us of any unauthorized use of its account(s) or any other breach of security. We will suspend or change access to your account within one (1) business day or less after receipt of written notice from you that a password has been lost or otherwise compromised. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services. Bloomerang reserves the right to monitor usage of the Services for diagnostic and security protection purposes and the right to improve and modify the Services at any time without notice. You are responsible for meeting all other technical requirements of the Services, including using a device with a minimum screen resolution of 1024x768 using the latest version of Chrome, Firefox, Safari, or Edge. We will not be liable for any service interruptions, errors or loss of data caused by malware or non-conforming hardware used by you.
10.3. Email. The Services include functionality allowing you to send and receive email. By using this functionality, you agree to comply with all laws applicable to the sending of email. In addition, we reserve the right to restrict, modify, or otherwise terminate your use of the Services if we reasonably believe that you are using email in any of the following ways:
1. Use of non-permission based Email lists. This includes purchased or rented lists, as well as lists in which recipients have not explicitly granted permission to receive emails from you
2. Use of third-party email addresses, domain names, or mail servers without permission
3. Sending Emails that result in an unacceptable number of spam or UCE complaints
4. Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of such request
10.4. Application Programming Interface. This section does not apply if you do not require access to our application programming interface ("API"), which enables third-party software to push data to, or pull data from your Bloomerang database. The API is automatically licensed to you upon activation of your Services.
1. 10.4.1. API Consulting and Support. Once we provide you with access to the API, it will be deemed to be included in the Services for purposes of this Agreement, except that any consulting services, support or other assistance requested by you relating to the API are not included in any Fees specified in the Proposal unless expressly stated.
2. 10.4.2. Limitations on API Use. We may limit the data that may be transferred by you through the API, the number of total or concurrent requests that you may make using the API, and/or any other activity with respect to the API, in our sole discretion and may change such limitations from time to time. We also reserve the right to terminate your license to use the API for any reason. The API shall be treated by you as confidential information.
10.5. Third-Party Services. The Services may include services developed, provided or maintained by third-party service providers (“Third-Party Services”). Your access to and use of any Third-Party Services is subject to the agreement that you may enter into (or may have entered into) relating to those Third-Party Services (each, a “Third-Party Service Agreement”). If there is no such agreement, the Third-Party Services will be subject to the terms of this Agreement. Third-Party Services may be subject to additional Fees as set forth on the site. Notwithstanding the terms of any Third-Party Services Agreement, Bloomerang may change, modify or discontinue any Third-Party Service at any time and without notice to you. Except as expressly set forth in this Agreement or any Third-Party Service Agreement, you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third-Party Services. Also note that the actions of any third-party service provider that violate this Agreement, whether contracted by you or acting under your direction, shall be deemed a violation of the Agreement by you.
10.6. Feedback. In the course of using the Services, or at our request from time to time, you may provide opinions, suggestions, comments, or other feedback related to or about our Services. If you do, you agree that such feedback is provided freely, and we are free to use and disclose such feedback for any purpose without an accounting to you or any other person, provided that we shall not disclose you as the source of such feedback or reveal any other confidential information about you. We shall own all right, title, and interest in and to feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we may develop.
10.7. Reservation of Rights. Subject to the limited rights expressly granted to you in this agreement, we reserve all rights, title and interest in the Services and any and all related software, designs, methods, know-how, or other intellectual property of any kind.

11. TERMINATION AND SURVIVAL

11.1. Termination for Cause. We may terminate this Agreement immediately or suspend your access to the Services upon any material breach of this Agreement by you (such as failure to allow processing of payment for the Services) or if we determine that you may be performing activities harmful to us or other users of the Services.
11.2. Survival. Section 7 (regarding your obligation to pay any outstanding amounts), Section 12 and Section 13 will survive termination of this Agreement. Any Fees prepaid for Services that are not provided due to termination will be refunded to you after any unpaid invoice balances are deducted.

12. WARRANTY DISCLAIMER

Although we will take commercially reasonable steps to provide error-free and continuous service, we do not represent, warrant or guarantee that the Services will be uninterrupted or error free. As a result, the Services are provided “as is” without warranty of any kind, and we disclaim ALL warranties, either express or implied, including, but not limited to, implied warranties of merchantability, and fitness for a particular purpose and non-infringement. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.

13. LIMITATION OF LIABILITY

Our 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 you to us under this agreement in the 12 months prior to the act or injury that gave rise to the liability; provided, however, that such limitation shall not apply to damages to you directly caused by willful or malicious misconduct by us or our employees. We 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 we have been advised of the possibility of such damages. This section shall apply to any action or arbitration.

14. MISCELLANEOUS

14.1. Confidential Information. 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.
14.2. Relationship of the Parties; Assignment. No agency, partnership, joint venture, or employment relationship is created by this Agreement, and neither party has any authority whatsoever to represent the other or bind it in any way. This Agreement cannot be assigned or delegated by you without our prior written consent, and any purported assignment in violation of the foregoing shall be void and without effect.
14.3. Governing Law. This Agreement is to be governed by and construed in accordance with the laws of Indiana, without regard to its conflict of law principles.
14.4. Mandatory Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the United States District Court for the Southern District of Indiana (Indianapolis Division) or the courts of the State of Indiana sitting in Indianapolis, Indiana, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
14.5. Litigation Costs and Expenses. If any party institutes any legal suit, action or proceeding against the other party to enforce this Agreement (or obtain any other remedy regarding any breach of this Agreement) or arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses, court costs and other reasonable costs and expenses of litigation.
14.6. Severability. If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force.
14.7. Notice. All notices under this Agreement shall either be given in writing or sent via email.
14.8. Merger. Your Proposal and the most current version of this Agreement set forth the entire understanding between you and us with respect to its subject matter and supersedes all prior negotiations, understandings and agreements - express or implied - concerning such matters. In the event of any conflict between the terms and conditions of this Agreement and any subsequent ordering document, terms listed in the Proposal shall control first and the most current version of this Agreement shall control second.
14.9. Internal References. References to Sections are to Sections of this Agreement.