These Terms of Service (“Terms”) govern the Services to be provided by Data Source of Loudoun, Inc. (dba HEPdata or Affinaquest as designated on the Order) and its affiliates (“Company”) to the Client identified in the proposal, order, statement of work, or similar document incorporating by reference these Terms (“Order”). These Terms and the Order are referred to as this agreement (“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.
- Service. Subject to the terms and conditions of this Agreement, Company shall provide the charitable donation matching services, including Match Look-Up and Auto Match Services (“Matching Services”) and data enrichment services (“Enrichment Services”), as applicable, to be provided by Company as set forth in the applicable Order (collectively “Services”). The Matching Services include access to certain information without limitation relating to individuals, companies, donation amounts, 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. The Enrichment Services include without limitation appended data for contact information, demographics, wealth screening, and/or professional profiles which are then used to generate flags that validate or update Client’s records (“Enrichment Data”). All access to and use of the Services, including Match Data and Enrichment Data shall be strictly in compliance with the terms of this Agreement.
- Match Look-Up. The Services may be accessed through the Client website (“Website”) or the Customer Relationship Management System (“CRM”) using one of the software implementation methods made available by Company (“Implementation Methods”) such as but not limited to executable files, web based widgets or API. Unless otherwise agreed by the parties in writing, Client is solely responsible for implementing the Services on the Website or CRM using the appropriate Implementation Methods strictly for the purpose of displaying Match Data on the Website or in the CRM. 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.
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 agrees and acknowledges that the Match Data is provided only as a convenience and may contain errors or outdated information. It is recommended that Client ensure that this disclaimer is included on the Website.
- Enrichment Services. All transfers of data will occur through secure cloud based SFTP provided by Company. Client’s staff is responsible for providing the requested data from Client’s CRM or other records on a timely basis. Client will assign a point of contact for the term of the Order, who shall be responsible for coordinating data exports and receiving project deliverables with the Company team. Client’s staff will provide support for implementation for all Services. Issues that cannot be resolved by Client staff will be escalated to Company through [email protected] If Client requests on-site support beyond the specified number of hours of professional services set forth in the SOW, Client will reimburse reasonable and necessary expenses incurred by Company.
- Auto Match Services. The Services may be accessed through Company provided software application or applications and use of provisioned access via a flat file, direct integration, or custom API solution. Flat file exchanges are completed through Company provided SFTP. Direct integrations are completed with third-party software which are established as read only connections to create a copy of relevant client data. Custom API solutions include options for read, write, and editing provisioned access. All Client provided data stored by Company is logically separated to be multi-tenant, with each software instance being logically independent of other instances. Client is responsible for provisioning access to the functionality of the Service via the methods specified in the Order (“Subscription Services”) and shall restrict access to employees and individuals who are performing services specifically for Client and have a need to access and use the Service (“Authorized Users”). Client shall be solely responsible for, at their own expense, acquiring, installing and maintaining all connectivity equipment, Internet and network connections, hardware, software and other equipment as may be necessary to connect to and obtain access to the Service.
- While Company uses commercially reasonable efforts to ensure the completeness, accuracy and currency of the Match Data, Enrichment Data and Services provided to Client, Company makes no warranties, express or implied, regarding the timeliness, accuracy, usability, fitness, or functionality of the Enrichment Services. Client acknowledges that certain data and information included in the Matching Services and Enrichment Services are derived through Company’s third-party vendors, and that Company is not responsible for any deficiencies therein.
- Confidential Information.
- During the Term, each Party (“Disclosing Party”) may disclose to the other Party (‘Receiving Party”) Confidential Information, the secrecy of which provides the Disclosing Party an important commercial benefit. For the purposes of these Terms, confidential information (“Confidential Information”) means any and all information regarding the Disclosing Party’s intellectual property, trade secrets, proprietary data, business plans and forecasts, marketing strategies, financial information, account information, products of services under development, computer software, source codes, object codes, documentation and programmer commentary, analytical techniques and processes, transaction data and other customer or user information, and any other materials or information created or developed by a Party in connection with these Terms.
- Confidential Information does not include information that: (i) was available to Receiving Party free of any confidentiality obligation to Disclosing Party at the time of disclosure; (ii) 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; (iii) is developed by Receiving Party independently of such Confidential Information; or (iv) is required to be disclosed pursuant to a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency. If Receiving Party is confronted with legal action to disclose any portion of the Disclosing Party’s Confidential Information, Receiving Party shall promptly notify and assist Disclosing Party, at Disclosing Party’s expense, in obtaining a protective order or other similar order and shall thereafter disclose only the minimum amount of Confidential Information that is required to be disclosed in order to comply with the legal action, whether or not a protective order or other order has been obtained.
- The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party agrees to not use the Disclosing Party’s Confidential Information for any purpose other than in furtherance of these Terms. Receiving Party shall not disclose Disclosing Party’s Confidential Information to any third party without Disclosing Party’s prior written consent; notwithstanding the foregoing, Receiving Party may disclose Disclosing Party’s Confidential Information to the Receiving Party’s employees or agents who need access to such information in accordance with the purpose of these Terms, or to Receiving Party’s employees or agents for the purpose of due diligence, provided that, in all cases, the Receiving Party remains responsible for the acts or omissions of such employees or agents with respect to the Disclosing Party’s Confidential Information.
- All Confidential Information of the Disclosing Party shall remain the exclusive property of the Disclosing Party. Except as otherwise expressly provided in these Terms or the applicable Order, nothing in these Terms or the applicable Order shall be construed as granting Receiving Party, whether expressly, by implication, estoppel, or otherwise, any license or any right to use any of Disclosing Party’s Confidential Information.
- Upon request or otherwise in accordance with Company’s standard policies, within a reasonable period of time following the conclusion of the Term as set forth in the applicable Order(s), Company shall delete, purge and destroy all Client Confidential Information held in its possession and care. Notwithstanding the foregoing, Client may consent in writing to Company’s retention of such Confidential Information to facilitate the performance of future Services. Company may retain one copy of such Confidential Information for record retention and enforcement purposes, provided it shall continue to maintain the confidentiality thereof so long as in Company’s possession. In addition to the foregoing, Client hereby unconditionally and irrevocably grants to Company an irrevocable, perpetual, paid-up, non-exclusive, transferrable, sub-licensable, right and license in and to all data used for, or as a result of the Services solely in order to (i) develop, maintain, modify and improve the Company Services and products, (ii) tailor the products and services, and/or use such data for market research purposes; and (iii) generate anonymous statistical analyses, trends or indexes, during the term of this Agreement and thereafter.
- Proprietary Rights and Restrictions on Use.
- The Services, Implementation Methods, Match Data, Enrichment Data (except for those deliverables specifically created using the Enrichment Data for Client hereunder), 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.
- All right, title and interest in and to any Client Confidential Information shall be and remain the sole and exclusive property of Client.
- The Services, including all materials provided by Company (except to the extent any Client materials are included or embedded therein) to Client, including without limitation all programming code or original work performed by Client staff, all deliverables, software, data or information developed or provided by Company hereunder, and any ideas, know-how, methodologies, equipment or processes conceived, developed or used to provide the Services or other agreed deliverables under an Order including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights related to such materials (collectively, “Company Materials”) shall be and remain the sole and exclusive property of Company. All rights not expressly provided to Client herein are reserved to Company.
- 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 [email protected] 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.
- 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.
- Term and Termination. This Agreement is for the Initial Service Term as specified in the Order, and unless otherwise agreed in an Order, 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, digital or other, 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 (“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. 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.
- 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, Match Data, or Enrichment 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.
- 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.
- 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 New York, without reference to conflict of laws principles. 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. The Company reserves the right to update these terms at any time.
Last updated December 2022.