Online Services Agreement

These Terms of Service (these “Terms”) govern the Services to be provided by Data Source of Loudoun, Inc. (dba HEPdata) and it affiliates (“Company”) to the Client identified in the proposal, order, statement of work, or similar document incorporating by reference these Terms (the “Order”). These Terms and the Order are referred to as this “Agreement”. In the event of a conflict between these Terms and the Order, these Terms shall control unless the conflicting term of the Order expressly states otherwise.

  1. Service. Subject to the terms and conditions of this Agreement, Company shall provide the charitable donation matching services to be provided by Company as set forth in the applicable Order (“Services”). The Services include access to certain information relating to individuals, companies, and charitable donation programs and offerings (“Match Data”). Match Data may be used strictly and exclusively by Client for the sole purpose of facilitating use of employer-sponsored charitable donation matching programs, or internally to facilitate charitable donations. All access to and use of Match Data shall be strictly in compliance with the terms of this Agreement.
  2. Implementation. The Services may be accessed through the Client website identified in an Order (“Website”) using one of the implementation methods made available by Company (“Implementation Methods”). Unless otherwise agreed by the parties in writing, Client is solely responsible for implementing the Services on the Website using the appropriate Implementation Methods strictly for the purpose of displaying Match Data on the Website. Client’s access to and use of the Services and Match Data shall at all times be in strict compliance with this Agreement and any documentation provided by Company. Company reserves the right to update or modify its Implementation Methods from time to time.
  3. Client agrees that its Website(s) shall not contain any: (a) pornographic or offensive material, (b) software trading, hacking or phreaking content, (c) illegal music reproduction, downloads or content, (d) content that infringes on any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party, or (e) any other content or material that is illegal or could harm the reputation of Company. Client shall ensure that the Website includes a conspicuous notice stating that the Match Data is provided only as a convenience and may contain errors or outdated information.
  4. Proprietary Rights and Restrictions on Use. The Services, Implementation Methods, Match Data, and any updates or enhancements to any of the foregoing (the “Company Materials”), and any software or technology or tools used by Company to provide the foregoing, and all worldwide intellectual property rights therein, are the exclusive property of Company and its licensors. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Client will not, and will not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Company Materials, (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Company Materials to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Company Materials; (d) interfere in any manner with the operation of the Company Materials; (e) remove, alter, or obscure any proprietary notices displayed in connection with the Services; (f) store, reuse, cache, or download, or attempt to store, reuse cache, or download any Match Content, (g) create, or attempt to create, a dataset from the Match Content, (h) use scripts or bots to enable access to the Match Content, or (i) otherwise use the Company Materials except as expressly allowed under this Agreement.
  5. Fees and Payment. Client will pay Company the Service Fees in accordance with the terms of the Order. Company reserves the right to change the Service Fees or any other applicable charges or both and to institute new charges and Service Fees at the end of the Initial Service Term or then-current Renewal Service Term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Company has billed Client incorrectly, Client must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Except as expressly stated in this Agreement, all fees are non-refundable. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination or suspension of Services. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
  6. Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY DOES NOT REPRESENT OR WARRANT: (A) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR (B) THAT CLIENT IS ENTITLED TO RECEIVE TAX-DEDUCTIBLE DONATIONS OR CONTRIBUTIONS.
  7. Term and Termination. This Agreement is for the Initial Service Term as specified in the Order, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each a “Renewal Service Term”), unless either party requests termination in writing at least 30 days prior to the end of the then-current term. The Initial Service Term and each Renewal Service Term are referred to collectively as the “Service Term”. Either party may terminate this Agreement by written notice in the event the other party is in material breach of any obligation under this Agreement and fails to cure such breach within 30 days following its receipt of written notice thereof. Upon termination or expiration of this Agreement for any reason, any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, and Client must discontinue all use of the Services and return to Company or destroy all copies of any Match Data in Client’s possession or control. In the event that Company terminates this Agreement for Client’s uncured breach of this Agreement, Client shall be responsible for all Service Fees that would be payable hereunder for the remainder of the then-current Service Term. All terms of this Agreement that, by their nature, are intended to survive termination of this Agreement shall survive such termination or expiration.
  8. Client will indemnify, defend, and hold harmless the Company, its affiliates, and their respective officers, directors, agents, representatives, employees, successors and assigns (each a “Client Indemnitee”), from and against any claim, action, proceeding, or demand initiated by a third party based upon or relating to Client’s breach of this Agreement, or an allegation that Client or its officers, directors, or employees violated any applicable law, rule, or regulation.If Client promptly notifies Company in writing of a third party claim against Client that Services or Match Data infringe a copyright or trade secret of any third party, Company will defend such claim at its expense and will pay any costs or damages that may be finally awarded against Client. Company will not indemnify Client, however, if the claim of infringement is caused by: (a) Client’s modification of the Services or Match Data or use of the Services or Match Data other than as contemplated by this Agreement; (b) Client’s failure to use corrections or enhancements made available by Company; (c) Client’s use of the Services of Match Data in combination with any product or information not owned or developed by Company; (d) Client’s distribution, marketing or use for the benefit of third parties of the Services or Match Data; or (e) information, direction, specification or materials provided by Client or any third party. If the Services or Match Data are, or in Company’’s opinion is likely to be, held to be infringing, Company will at its expense and option either: (i) procure the right for Client to continue using it, (ii) replace it with a noninfringing equivalent, (iii) modify it to make it noninfringing, or (iv) direct the return of the Match Data and refund to Client the fees paid for such Match Data less a reasonable amount for Client’s use of the Match Data up to the time of return. The foregoing remedies constitute Client’s sole and exclusive remedies and Company’s entire liability with respect to infringement.To make a claim for indemnification hereunder, the indemnified party (“Indemnitee”) will promptly notify indemnifying party (“Indemnitor’) of the claim and cooperate with Indemnitor in defending the claim. Any delay or failure to provide such notice shall not relieve the Indemnitor of its obligations hereunder except and only to the extent of any actual prejudice resulting therefrom. The Indemnitor will have full control and authority over the defense, except that: (i) any settlement requiring Indemnitee to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) Indemnitee may join in the defense (but not control it) with its own counsel at its own expense.
  9. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO COMPANY DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
  10. General. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in this Agreement, neither party has the right or authority to assume or create any obligation on behalf of the other party. This Agreement shall be governed by and construed in accordance with the laws of state of Colorado, without reference to conflict of laws principles. This Agreement may not be amended except by a writing signed by both parties hereto. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this provision will be void. This Agreement will be binding upon each party’s valid heirs, successors, and assigns. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings.