Last Updated: 7/31/2017
The following Platform Terms of Service (the “Agreement”), which may be modified from time to time by Causemo at its sole discretion, are incorporated in and made part of any Purchase Order (as defined below). Each of Causemo and Organization may be referred to herein individually as a “Party” or collectively as “Parties.” For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Capitalized terms not otherwise defined in a Purchase Order shall have the following meanings or such meaning as expressly provided elsewhere in this Agreement: (a) “Administrative Portal” means an online interface where Organization can interact with the Causemo platform. (b) “Affiliate” means, with respect to a Party, any corporation or legal entity which is controlled by, controls, or is under common control with such Party, where “control” means direct or indirect ownership of more than fifty percent (50%) of the voting shares or ownership interest of such corporation or legal entity (but only as long as such corporation or legal entity meets these requirements). (c) “Organization Content” means text, music, sound, images, video, graphics, logos, trademarks, and all other content provided by or on behalf of Organization or its Affiliates to Causemo for customizing the Causemo Platform for Organization as described in the applicable Purchase Order and this Agreement or included by Organization or its Affiliates, or their respective contractors, through the Administrative Portal (including any calculated fields or derived or assigned data). (d) “Organization Property” means Organization’s mobile web and/or mobile applications described in a Purchase Order and the website(s) or webpage(s) owned or operated by Organization or its Affiliates currently located at the URL(s) that may be specified in a given Purchase Order, in each case, for which mobile web and/or mobile applications, website(s) or webpage(s) Organization has purchased a license hereunder to the Causemo Platform specified in that Purchase Order, and any other mobile web and/or mobile applications, website(s) or webpage(s) owned or operated by Organization or its Affiliates and added to such Purchase Order from time to time by written agreement of the parties. (e) “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that Causemo makes available to Organization or its Affiliates in hard copy or electronic form for the Causemo Platform, and any modified, updated, or enhanced versions of such documentation. (f) “End User” means an end user that engages with any Organization Property during the Term. (g) “End User Data” means any “personal information,” “personally identifiable information” or similarly described information associated with any End User under any applicable federal, provincial, state or local law, rule or regulation, as amended or supplemented from time to time, that is processed, stored or communicated by or through the Causemo Platform or in connection with the Services. “End User Data” includes, but is not limited to, an End User’s name, mailing address, zip code, telephone number, e-mail address, and information relating to an End User’s purchase, including items purchased, date of purchase, amount of purchase and location of purchase or service. (h) “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction. (i) “Services” means, collectively, the Causemo Platform or any services provided by Causemo pursuant to a Purchase Order. (j) “Causemo Platform” means the Causemo engagement software as a service platform (in object code format only) which Causemo makes available to Organization over the Internet under this Agreement and the applicable Purchase Order, which platform includes, without limitation, application programming interfaces, software development kits, software frameworks and libraries, and any and all modified, updated, or enhanced versions of such platform that Causemo may provide Organization or its Affiliates under this Agreement and the applicable Purchase Order. (k) “Purchase Order” means a mutually agreed upon statement of work, Software-as-a-Service agreement or any other agreement for use of the Causemo Platform, product order or service order form executed by a duly authorized representative of each party which, at a minimum, sets forth the Services to be performed by Causemo and the fees to be paid by Organization. (l) “Organization Marks” means the Organization name, logos, symbols, emblems, designs, and identifications.
2. Purchase Orders; Causemo Responsibilities
2.1 Purchase Orders
From time to time, Organization and Causemo may enter into one or more Purchase Orders, each of which are deemed incorporated herein by reference; provided that a Purchase Order will not be deemed entered into until signed by an authorized representative of each Party. If there is a conflict between a Purchase Order and this Agreement, the terms and conditions set forth in the applicable Purchase Order shall govern. Causemo will perform the Services set forth in any Purchase Order, in accordance with the terms and conditions set forth therein and herein.
2.2 Causemo Platform
Subject to Organization’s compliance with the terms and conditions of this Agreement (including Organization’s payment of the applicable fees), Causemo will provide Organization access, over the Internet, to the Causemo Platform as described in an Purchase Order.
2.3 Media Buys
Organization may, at its sole discretion, place insertion orders through the Platform to purchase Internet advertising inventory. Unless otherwise indicated in a Purchase Order or media buy order, media spend includes a ten percent (10%) media management fee. All media spend is due prior to deployment of such media at the beginning of the Initial Term and each Renewal Term, as applicable. In the event that any portion of the pre-paid media spend for a given Term has not been deployed (“Unused Media Spend”) as of the end of such Term or the earlier termination of the applicable Purchase Order and this Agreement, Causemo shall be entitled to retain the Unused Media Spend; provided, however, that Organization shall be entitled to deploy any Unused Media Spend from a prior Term during any subsequent Renewal Term.
The Platform may provide Organization with digital coupons, products, gift cards, loyalty points and other items (“Rewards”) that Organization may include in its advertising and marketing activities.
3. Organization Obligations
3.1 Organization Assistance
Subject to the terms and conditions of this Agreement, Organization will provide Causemo with Organization Marks for incorporation in the user interface of the Causemo Platform and such information as reasonably necessary for Causemo to perform its obligations hereunder. Causemo’s use of Organization Marks for any purpose other than for rendering the Services contemplated herein is subject to the prior written approval of Organization. Organization shall provide all Organization Content within a time period agreed to by Organization and Causemo, and in a reasonable format specified by Causemo. Organization agrees to reasonably assist Causemo and perform any of the Organization’s tasks and responsibilities set forth in each Purchase Order.
3.2 Organization Account
Organization shall identify a bank account or approved digital merchant account (e.g., Stripe) that remits to a bank account under the exclusive care, custody and control of Organization to which contributions may be deposited (“Organization Account”). Causemo is not responsible for third party credit card or merchant account processing fees, which you may incur as a result of processing transactions.
4. Licenses; Restrictions; Ownership; Reservation of Rights
4.1 License to Causemo Platform
Organization acknowledges that Causemo Platform and Documentation embodies, contains, and constitutes valuable trade secrets of Causemo. Accordingly, Organization agrees that it will not, and it will not permit any third party to, (a) access or use the Causemo Platform except to the extent otherwise expressly permitted in this Agreement or an applicable Purchase Order; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Causemo Platform; (c) modify, adapt, translate or create derivative works based on the Causemo Platform or Documentation made available hereunder; and (d) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Causemo Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing, or (e) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Causemo Platform the or Documentation, except to the extent otherwise expressly permitted in this Agreement or an applicable Purchase Order. Organization agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Causemo or its suppliers on or within the Causemo Platform or Documentation. Causemo reserves all rights, title and interest in and to the Causemo Platform not expressly granted to Organization in Section 4 and no implied licenses are granted by Causemo to Organization.
4.3 License to Organization Content
Organization hereby grants to Causemo a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Organization’s intellectual property and proprietary rights, to reproduce, modify, incorporate, perform and otherwise use the Organization Content as reasonably necessary for the following purposes only: to (a) customize and integrate, and to maintain during the Term, the customization and integration of, the Causemo Platform and (b) distribute, display and otherwise make available Organization Content in connection with Organization initiated and/or directed communications or advertisements (including third-party advertisements) directly to End Users through the Causemo Platform.
4.4 End User Data
As between Organization and Causemo, any End User Data provided by Organization to Causemo (“Organization End User Data”) is owned by Organization. Organization hereby grants to Causemo a perpetual, non-exclusive, royalty-free, fully-paid, worldwide license, under all of Organization’s intellectual property and proprietary rights, to copy, display, modify (including the right to create derivative works of), distribute and otherwise use Organization End User Data to (a) provide the Services and (b) aggregate Organization End User Data with other End User Data (“Aggregate Data”). Causemo may use anonymized, pseudonymized or de-identified Aggregate Data to improve or enhance the Services and perform research and analysis of digital supporter behavior and digital donation solicitation campaigns and for any other lawful purpose; provided, that no such use shall reveal any personally identifiable information of an End User or directly identify Organization. Organization represents and warrants that it has all the rights necessary to grant the licenses in the Organization End User Data granted herein to Causemo. Notwithstanding the foregoing, as between Organization and Causemo, any End User Data that is provided by an End User directly to Causemo from an End User’s use of the Causemo Platform to interact with the Organization is owned by Causemo (“Causemo End User Data”). During the Term, Causemo hereby grants to Organization a perpetual, non-exclusive, royalty-free, fully-paid, worldwide license, under all of Causemo’s intellectual property and proprietary rights, to use Causemo End User Data that is made available to the Organization through the Causemo Platform or delivered to Organization in a reasonable format for its internal fundraising campaigns only.
4.5 Ownership by Causemo
Causemo and its suppliers and licensors retain all right, title and interest in and to all Intellectual Property Rights in the Causemo Platform, Documentation, Causemo End User Data and all other materials provided or made available by Causemo to Organization in connection with the Services provided by Causemo, and any and all modifications, updates, and enhancements to the foregoing items, excluding any materials owned by Organization under this Agreement.
4.6 Ownership by Organization
Organization retains all right, title and interest, including all Intellectual Property Rights, in and to Organization Confidential Information, Organization End User Data, and Organization Content.
5. Fees and Payment
5.1 Payment Terms
Payment terms will be specified in the “Payment Terms” or “Fees” section of the Purchase Order (the “Payment Terms”). Organization is responsible for providing complete and accurate billing and contact information to Causemo and notifying Causemo promptly of any changes to such information accordance with the Payment Terms.
5.2 Invoicing and Payment
In accordance with the Payment Terms, (a) Causemo will invoice Organization for its use of the Services, and Organization will pay Causemo the invoiced amounts by the applicable payment date (such date, the “Organization Payment Date”), and (b) Causemo will pay Organization any amounts owed under this Agreement by the applicable payment date (net of any fees owed to third parties) (such date, the “Causemo Payment Date”). All payments made to either Party shall be in U.S. Dollars.
5.3 Additional Payment Rules
If Organization has not fully paid all amounts invoiced under this Agreement and the applicable Purchase Order by the applicable Organization Payment Date (except for amounts being disputed reasonably and in good faith in accordance with Section 5.5 below), Causemo may set off such amounts against payments owed by Causemo to Organization under this Agreement and the applicable Purchase Order. If Causemo has not fully paid all amounts owed under this Agreement and the applicable Purchase Order by the applicable Causemo Payment Date (except for amounts being disputed reasonably and in good faith in accordance with Section 5.5 below), Organization may set off such amounts against payments owed by Organization to Causemo under this Agreement and the applicable Purchase Order. Unless otherwise set forth on a Purchase Order, no fees owed to either Party will be prorated if the Agreement is terminated prior to the end of a payment period.
The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Organization will be responsible for payment of all such taxes (other than taxes based on Causemo’s income and payroll related taxes), and any related penalties and interest, arising from the payment of the fees or the access or use of the Causemo Platform by Organization, or performance of any Services by Causemo.
5.5 Payment Disputes
If Organization disputes any amounts invoiced or owed by Causemo hereunder, Organization will, within thirty (30) days following its receipt of such invoice (“Payment Dispute Notification Period”), provide Causemo a written notice describing in reasonable detail what amounts are disputed and the reasons for such dispute (“Payment Dispute Notice”). The Parties’ representatives will use best efforts to meet (in person or by phone) within ten (10) days following Causemo’s receipt of the Payment Dispute Notice and the Parties shall use good faith efforts to resolve the dispute. If the dispute is not resolved within forty-five (45) days following Organization’s receipt of the disputed invoice, Causemo may upon written notice suspend any or all Services hereunder or terminate this Agreement immediately for cause without any cure period. Each Party will pay the other Party any formerly disputed amounts owed to such Party to the extent resolved as provided herein, promptly following such resolution. If Causemo does not receive a Payment Dispute Notice during the Payment Dispute Notification Period for a given invoice, such invoice will be deemed undisputed and payable by Organization to Causemo within thirty (30) days following Organization’s receipt of such invoice. Organization will pay Causemo all undisputed amounts on any disputed invoice within thirty (30) days following Organization’s receipt of such invoice.
6. Term and Termination
As between Organization and Causemo, this Agreement is effectiveas of the effective date set forth in the applicable Purchase Order and shall continue in effect until terminated as set forth below. Unless earlier terminated in accordance with this Agreement, the initial term of each Purchase Order (each, an “Initial Term”) shall commence on the effective date set forth in such Purchase Order and shall continue for the Initial Term specified in the Purchase Order. Except as otherwise specified in each applicable Purchase Order, each Initial Term shall automatically renew for additional periods of one year (each, a “Renewal Term” and collectively with each Initial Term, the “Term”) unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the applicable Initial Term or Renewal Term. If there are no outstanding Purchase Orders under which Services are still being provided by Causemo to Organization, this Agreement shall terminate as between Organization and Causemo.
6.2 Termination for Cause
Either party may terminate this Agreement or an applicable Purchase Order by giving written notice to the other party if such other party materially breaches any provision of this Agreement or such Purchase Order, such termination to be effective (a) on the thirty-first (31st) day following the date on such notice, if the breach is capable of being cured and is not cured within thirty (30) days following the date on such notice or (b) immediately, if the breach is not capable of cure.
6.3 Effects of Termination
The expiration or termination of a Purchase Order shall not affect any other Purchase Order hereunder unless the Agreement expires or is terminated in whole. Upon termination of this Agreement:
(A) EACH PARTY SHALL RETURN OR DESTROY ALL CONFIDENTIAL INFORMATION AND ALL OTHER PAPERS, MATERIALS AND PROPERTIES OF THE OTHER PARTY RELATED TO THE TERMINATING AGREEMENT IN ITS POSSESSION OR CONTROL;
(B) EACH PARTY SHALL PAY ALL FEES AND EXPENSES WHICH HAVE ACCRUED UNDER THIS AGREEMENT PRIOR TO ANY TERMINATION OR EXPIRATION OF AN APPLICABLE PURCHASE ORDER AND/OR THIS AGREEMENT;
(C) CAUSEMO WILL PROVIDE ORGANIZATION WITH A COPY OF ORGANIZATION END USER DATA WITHIN A REASONABLE PERIOD OF TIME FOLLOWING ORGANIZATION’S WRITTEN REQUEST, VIA A TRANSMISSION METHOD, AND IN A FORMAT, REASONABLY REQUESTED BY ORGANIZATION. ORGANIZATION AGREES THAT CAUSEMO’S OBLIGATION TO MAINTAIN ANY ORGANIZATION END USER DATA OBTAINED IN THE COURSE OF PROVIDING THE SERVICES SHALL NOT EXTEND MORE THAN THIRTY (30) DAYS BEYOND THE TERM OF THE AGREEMENT OR THE END OF THE TRANSITION PERIOD, WHICHEVER IS LATER, EXCEPT TO THE EXTENT NECESSARY FOR CAUSEMO TO SATISFY ITS OBLIGATIONS UNDER ANY APPLICABLE LAW.
All rights or obligations will immediately terminate and be of no further force or effect, except that the following Sections will survive expiration or termination of this Agreement or any Purchase Order hereunder for any reason: 1 (Definitions), 4.2 (Restrictions), 4.4 (End User Data), 4.5 (Ownership by Causemo), 5 (Fees and Payment) (to the extent any amounts are owed as of termination or expiration), 6.3(Effects of Termination), 7 (Confidential Information), 8 (Indemnification), 10.3 (Disclaimer), 11 (Limitation of Liability), 12 (Notices), and 14 (Miscellaneous). Any Sections of Purchase Orders that are expressly specified in such Purchase Orders to survive termination or expiration of the applicable Purchase Order shall also survive any termination or expiration of this Agreement or that Purchase Order.
7. Confidential Information
7.1 As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, the terms of this Agreement, and any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Causemo’s Confidential Information includes, without limitation, the Causemo Platform. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder.
7.2 Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose the terms of this Agreement, in whole or in part (a) to its owners, employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a Party, sources of debt financing, acquirers and/or subcontractors who have a need to know, and other parties who are required to receive such information in order to effectuate this Agreement, and in each case who are subject to non-disclosure agreements and legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.
8.1 Indemnification by Causemo
Causemo shall indemnify, defend and hold Organization and its parent, affiliates, subsidiaries, officers, directors, agents, and employees (“Organization Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Organization Indemnified Parties (including reasonable attorneys’ fees) arising from any Intellectual Property infringement that arises out of Organization’s use of the Causemo Platform (except for claims for which Causemo is entitled to indemnification under Section 8.2, in which case Causemo shall have no indemnification obligations with respect to such claim). Causemo shall further indemnify, defend and hold the Organization Indemnified Parties harmless from Liabilities arising out of Causemo’s fraud, willful misconduct or gross negligence. Causemo shall have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by (w) Organization Content, Organization Property, Organization Marks, or any data or material supplied by Organization, (x) modification of the Causemo Platform by any party other than Causemo without Causemo’s express consent; (y) the combination, operation, or use of the Causemo Platform with other product(s), data or services provided by Organization, where the Causemo Platform would not by itself be infringing; or (z) it is based upon the use of a superseded release of the Causemo Platform, if the claim would have been avoided by the use of the current release where it is not Causemo’s responsibility to upgrade the Causemo Platform. If the use of the Causemo Platform by Organization has become, or in Causemo’s opinion is likely to become, the subject of any claim or infringement, Causemo may at its option and expense (a) procure for Organization the right to continue using the Causemo Platform as set forth hereunder; (b) replace or modify the Causemo Platform to make it non-infringing so long as the Causemo Platform has similar functionality; (c) substitute a similar software for the Causemo Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Causemo’s entire obligation and Organization’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Organization
8.3 Indemnification Procedure
If an Organization Indemnified Party or a Causemo Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9. Data Storage
9.1 The data and other material supplied directly to Causemo by Organization in the course of using the Causemo Platform and all results obtained from Causemo’s analysis of or calculations concerning such data (excluding any formats or layouts of such results that are native to the Causemo Platform) (“Organization Data”) will be owned by Organization. Organization hereby grants to Causemo a perpetual, non-exclusive, royalty-free, fully paid up, and worldwide license to copy, display and use Organization Data.
10. Representations, Warranties; Disclaimer
10.1 Representations and Warranties
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
10.2 Organization Agreements
Organization will (a) be solely responsible for all use of the Causemo Platform and Services; (b) not violate, or use the Services in a way that violates (or causes Causemo to violate) any applicable law, rule or regulation or third party right; (c) have obtained, and does hereby grant to Causemo, all rights in and to Organization Content and Organization Property reasonably required for Causemo to deliver the Services.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE SOFTWARE, SERVICES, DOCUMENTATION OR OTHER MATERIALS PROVIDED BY CAUSEMO, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CAUSEMO DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. ORGANIZATION ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF CAUSEMO’S SUPPLIERS.
11. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM (A) ORGANIZATION’S BREACH OF SECTION 4, AND/OR (B) ORGANIZATION’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR CAUSEMO’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE CAUSEMO PLATFORM, SERVICES, DOCUMENTATION OR OTHER MATERIALS PROVIDED BY CAUSEMO, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (A) ORGANIZATION’S BREACH OF SECTION 4, (B) ORGANIZATION’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (C) ORGANIZATION’S PAYMENT OBLIGATIONS HEREUNDER, AND (D) ORGANIZATION’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, SERVICES, DOCUMENTATION AND OTHER MATERIALS PROVIDED BY CAUSEMO, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL FEES PAID OR PAYABLE TO CAUSEMO BY ORGANIZATION UNDER THE PURCHASE ORDER CORRESPONDING TO THE CAUSEMO PLATFORM SERVICE IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH FEE CORRESPONDING TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.
Any notice or other communication required or permitted under this Agreement shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) business days after deposit in the United States first class mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the party’s address set forth in the Purchase Order or at such other address as each party may designate by ten (10) business days’ advance written notice to the other party in accordance with this Section.
13. No Fundraising Counsel or Professional Fundraising Services.
The Parties agree and understand that Causemo is providing a software platform and related technology, marketing and advertising services for use by Organization. Nothing contained herein shall be deemed the provision of, and Causemo does not provide, fundraising counsel or professional fundraising services as those terms are defined under state charitable solicitation laws. Causemo shall at no time be soliciting contributions for or on behalf of the Organization or retaining any person or entity to do so, nor shall it be providing advice, counsel or management services in connection with the Organization’s own fundraising appeals or have custody or control of contributions made to the Organization.
Organization may not remove or export from the United States or allow the export or re-export of the Causemo Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 14 shall be null and void. Both Parties agree that this Agreement and each Purchase Order is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. In addition to all other remedies available under this Agreement, at law or in equity, Organization further agrees that Causemo shall be entitled to injunctive relief in the event Organization uses the Causemo Platform in violation of the limited license granted herein or uses the Causemo Platform in any way not expressly permitted by this Agreement. Notwithstanding anything herein to the contrary but subject to compliance with Section 9.1, Causemo may (a) create demonstration and marketing materials and information which includes Organization End User Data solely in anonymized or aggregated format and disclose and otherwise make such materials and information available solely in connection with marketing and demonstrating the Causemo Platform; and (b) mention Organization and the relationship between Causemo and Organization in Causemo’s marketing collateral, website, and other promotional and marketing materials. For the avoidance of doubt, Causemo may use any Organization End User Data that is also Causemo End User Data in any manner or form as it may determine in its sole discretion. Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party shall give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Organization acknowledges that any unauthorized use of the Causemo Platform will cause irreparable harm and injury to Causemo for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Organization further agrees that Causemo shall be entitled to injunctive relief in the event Organization uses the Causemo Platform in violation of the limited license granted herein or uses the Causemo Platform in any way not expressly permitted by this Agreement.