Foundant Technologies Standard Terms and Conditions
Software License and Services Agreement with Customer
This Software License and Services Agreement (this ”Agreement”) is between Foundant Technologies (“Foundant”) and the entity that has executed this Agreement (“Customer”). This Agreement sets forth the terms and conditions that govern orders placed under this Agreement and applies to the purchase of Software, Trials or Services by Customer.
1.1 “Agreement” means this agreement and any additional agreements incorporated by reference.
1.2 “Authorized User” means an employee, board member, trustee, invited reviewer, third party, Customer’s affiliates, or of a person to whom Customer has outsourced services, each of whom is able to access the Software functionality.
1.3 “Documentation” means user documentation provided electronically by Foundant for use with the Software.
1.4 “Hosting Services” means the services provided by Foundant to Customer under the Hosting Service Level Agreement.
1.5 “Hosting Service Level Agreement” means the terms and conditions of the Hosting Services, which are located at
1.6 “Professional Services” means the training, consulting, software development and other professional services, but does not include the Software, the Support Services or the Hosting Services.
1.7 “Support Services” means the provision of upgrades and Software support.
1.8 “Software” means the proprietary computer software and any subsequent revisions or modifications thereto furnished to Customer by Foundant.
1.9 “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by Foundant in providing the Professional Services to Customer.
2. LICENSE AND SUPPORT
2.1 License Grant
(a) Foundant will make the Foundant GrantHub Software, Support Services and / or Professional Services available pursuant to this Agreement. Except as otherwise stated in this Agreement, Customer shall have a non-exclusive, worldwide, limited right to use the Services during the period defined in this Agreement, unless earlier terminated in accordance with this Agreement, solely for Customer’s internal business operations.
(b) Customer shall retain all ownership and intellectual property rights in and to its content. Foundant retains all ownership and intellectual property rights in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of Foundant under this Agreement.
2.2 Limitations on Use
(a) Customer shall not (i) sell, rent, lease, sublicense or otherwise transfer or distribute any copies of the Software or Documentation to any third parties; (ii) modify, translate, reverse engineer, decompile, or disassemble the Software (except to the extent applicable law specifically permits such activity) or modify the Documentation; (iii) create derivative
works based upon the Software or Documentation; (iv) alter, destroy or otherwise remove any proprietary notices (including the ‘Powered By Foundant’ link or labels on or embedded within the Software or Documentation; or (v) create, or cause the creation of unique user accounts that would result in the total number of active users exceeding the maximum amount as defined on grantseekers.foundant.com without Foundant’s written approval.
(b) Customer acknowledges that the Software and Documentation and all right, title and interest therein (including without limitation any copyright, patent, trade secret or other intellectual property right in and to the Software and Documentation) are the sole property of Foundant and its suppliers and that Customer receives no rights, title or interests in the Software or Documentation except as expressly set forth herein.
(c) HIPAA Disclaimer: we are not “HIPAA Compliant”. Users of our Software are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Software may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Foundant Technologies, Inc. does not control or monitor the information or data you store on, or transmit through, our Software. We specifically disclaim any representation or warranty that the Software, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Software for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that Foundant Technologies, Inc. is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact firstname.lastname@example.org.
2.3 Support Services
(a) Phone and e-mail technical support is available to Customer from 7:00 AM Mountain Time to 6:00 PM Mountain Time on standard business days.
(b) Foundant’s Online GrantHub Knowledgebase is available for general support needs and is publicly available via the GrantHub website. Foundant will make reasonable efforts to ensure that the system is available 24x7x365 as a technical support resource for Customer.
2.4 License Term and Termination
(a) The license granted hereunder initiates upon the subscription date requested during on-line or direct order process and will remain active for twelve (12) months or request from Customer to terminate.
(b) Either party may terminate the license if the other breaches any material term and such breach is not cured within 30 days of written notice thereof. Upon expiration or termination of a license, Customer’s rights under Part Two of this Agreement shall cease, Customer agrees to immediately cease use of the Software, and Foundant reserves the right to disable access for all Authorized Users of the Customer. Sections 6.3, 6.4, 6.5 and 6.9 shall survive the expiration or termination of the terminated license.
2.5 Software Warranty
(a) Foundant warrants to Customer that: (1) the Software will function substantially as described in the Documentation for so long as Customer is entitled to receive Support Services hereunder; (2) Foundant owns or otherwise has the right to license the Software and documentation to Customer under this Agreement; (3) on delivery, the
Software will be free from any virus, time bomb, trojan horse, worm, drop dead device or other computer software code or routine designed to disable, damage or erase the Software, provided that the foregoing shall not apply if same could not have been detected by Foundant using commercially reasonable virus detection or other scanning practices.
(b) If there is a material breach of the above warranties, Foundant’s entire liability and Customer’s exclusive remedy shall be: (1) if the Software does not function substantially in accordance with the applicable Documentation, Foundant shall, at its option, (i) promptly modify the Software to conform to the Documentation; or (ii) promptly provide a reasonable workaround solution which will reasonably meet Customer’s requirements. If neither of the foregoing is commercially feasible, either party may terminate this Agreement, in which case Foundant shall refund to Customer all license fees paid to Foundant hereunder less an amount for use assuming straight line depreciation over the license; (2) if the normal operation, possession or use of the Software by Customer is found to infringe any third party U.S. intellectual property right or Foundant believes that the Software is likely to do so, Foundant may, at its option, (i) obtain a license from such third party for the benefit of Customer; (ii) replace or modify the Software so that it is no longer infringing; or (iii) if neither of the foregoing is commercially feasible, terminate this Agreement, in which case Foundant shall refund to Customer all license fees paid to Foundant hereunder less an amount for use assuming straight line depreciation over the license term; (3) If the Software contains a virus or similar device, Foundant shall replace the Software with Software which is free of such defects.
(c) The remedies set forth above shall be Customer’s sole and exclusive remedies. Foundant shall have no obligation hereunder for any Software that has been modified by Customer or any third party or any Software other than the then-current release and the immediately prior release thereof. Foundant shall have no obligation hereunder for errors,
damage or problems caused by failure to provide a suitable operating environment, by any third-party software, by accidental damage or by other matters beyond Foundant’s reasonable control.
3.1 Hosting Service Level
Hosting Services are offered under the conditions set forth in Hosting Service Level Agreement, which are available at https://azure.microsoft.com/en-us/support/legal/subscription-agreement/; https://azure.microsoft.com/en-us/support/legal/
and for the term identified in the Order. As set forth in the Hosting Service Level Agreement, Foundant reserves the right to terminate the Agreement for violations of the Hosting Service Level Agreement.
4. PROFESSIONAL SERVICES
4.1 Delivery of Professional Services
This Part Four shall apply only if the parties have agreed that Foundant shall deliver Professional Services to Customer.
4.2 Professional Services Warranty
(a) Foundant warrants to Customer that (i) the Work Product shall substantially conform to any specification or statement of work and (ii) the Professional Services will be performed with reasonable skill, care and diligence.
(b) If there is a material breach of the above warranty, Foundant’s entire liability and Customer’s exclusive remedy shall be if the Professional Services do not conform to the statement of work or are not performed with reasonable skill, care and diligence, Foundant shall re-perform the Professional Services to the extent necessary to correct non-conformity.
4.3 Customer’s Responsibilities
Customer shall provide Foundant with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Professional Services, and shall do any thing that is identified in the statement of work as the Customer’s responsibility. If Customer fails or delays in its performance of any of the foregoing, Foundant shall be relieved of its obligations hereunder to the extent that such obligations are dependent upon such performance.
4.4 Ownership of Intellectual Property
Customer acknowledges that Foundant is the exclusive owner of the Work Product. Upon payment in full of any amounts due for Professional Services, Customer shall have an object code-only, non-exclusive, non-transferable (except as provided in Section 6.9(d)) license to use the Work Product for Customer’s internal business purposes, which license shall continue for so long as, and be subject to the same terms and conditions as the license to the Software.
5. THIRD PARTY SERVICES
5.1 Third-Party Services
Foundant may provide Third-Party Services in accordance with the provisions described in this Agreement. In such an event, any Third-Party Services shall be provided in accordance with the terms and conditions stated below and any applicable Third-Party Service user agreement.
(a) Customer expressly acknowledges, understands and agrees that Foundant does not own, control or otherwise influence any of the information provided by Third Party Services (such as Guidestar, GreatNonprofits and Foundation Center), cannot censor or edit the content of the Third-Party Services and assumes no responsibility or liability for the content, privacy policies, security or practices of the Third-Party Services. Foundant does not warrant that the provision of the Third-Party Services will be uninterrupted; error free, timely, complete or accurate, nor does Foundant make any warranties as to the results to be obtained from use of the same. Customer acknowledges that the Third-Party Services are provided for informational purposes only. Customer expressly agrees that Customer’s use of the Third-Party Services is at Customer’s own risk. Accordingly, Customer agrees that Foundant will not in any way be liable to Customer or any other entity for any inaccuracies, errors, omissions, delays, damages, claims, liabilities or losses, regardless of cause, in or arising from the use of the Third-Party Services contained in the Software.
5.2 SendGrid Services
Foundant utilizes third-party services from SendGrid to send emails from the Software. Customer agrees to the terms and conditions of the SendGrid OEM User Agreement, which is available at https://sendgrid.com/policies/tos/
(a) All customers agree to the following terms and conditions. By indicating your acceptance, you are agreeing that you or your company or other entity you represent will be bound by the terms of this agreement. If you do not agree with these terms, you are not permitted to use the services.
(b) Customer’s use of the Service will result in fees as set forth on grantseekers.foundant.com. The Service fees and charges may be changed by Foundant from time to time by sending Customer notification, in electronic, paper or any other form and by posting an updated fee schedule on grantseekers.foundant.com thirty days prior to changes. Customer agrees that Foundant will charge said fees and charges directly to Customer’s credit card. Customer will be notified of credit card billing failure via electronic mail, invoice or any other means available to Foundant, and agrees to pay on all amounts due within thirty days of receipt of such notice that have not been disputed specifically in writing. Customer will be liable for attorneys’ and collection fees arising from Foundant’s efforts to collect unpaid balances.
(c) The Service is billed in advance on a monthly or annual basis, depending on the pricing option selected, and is non-refundable. There will be no refunds or credits for partial months of service, upgrade or downgrade refunds, or refunds for months unused with an open account.
(d) All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
(e) You must provide current, complete and accurate payment information. You must promptly update all payment information to keep Customer’s account current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify Foundant if your payment method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). If you fail to provide Foundant any of the foregoing information, you agree that you are responsible for fees accrued on your account. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card(s) as may be provided by your card issuer or other means.
(f) If an invoicing schedule has been agreed upon, then Customer shall pay Foundant all fees payable under this Agreement net 30 days from the invoice date. Customer shall pay a finance charge on any overdue payment hereunder of one and one-half per cent (1-1/2%) for each month or portion thereof that such payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly. Such fees do not include any taxes, and Customer shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Foundant) based on or due as a result of any amounts paid to Foundant hereunder. Customer shall bear all of Foundant’s costs of collection of overdue fees, including reasonable attorneys’ fees.
(g) Notwithstanding Section 6.1(a), if Customer purchases Software, Professional Services, Support Services, or Hosting Services from an authorized Foundant reseller, Customer shall make all payments due in connection therewith to the reseller, and not to Foundant. However, Foundant is under no obligation to carry out its obligations under this Agreement if Foundant has not received payment in full from the reseller.
6.2 Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 2.5 OR 4.2 OF THIS AGREEMENT OR IN THE HOSTING SERVICE LEVEL AGREEMENT, THE SOFTWARE, SUPPORT SERVICES, WORK PRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND FOUNDANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOUNDANT DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
6.3 Limitation of Liability
(a) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OF THE SOFTWARE OR WORK PRODUCT.
(b) EXCEPT AS PROVIDED HEREAFTER, EACH PARTY’S TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE ORDER MADE UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO FOUNDANT UNDER SUCH ORDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN FOUNDANT AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO FOUNDANT HEREUNDER. NOTHING IN THIS SECTION 6.3(B) SHALL APPLY TO LIMIT CUSTOMER’S LIABILITY TO FOUNDANT IN CONNECTION WITH AN INFRINGEMENT OF FOUNDANT’S INTELLECTUAL PROPERTY RIGHTS, OR TO LIMIT EITHER PARTY’S LIABILITY TO THE OTHER IN CONNECTION WITH AN INFRINGEMENT OF SECTION 6.5 OF THIS AGREEMENT.
Subject to the Disclaimer Provided in Section 2.2(E):
(a) Customer acknowledges that the Software, Documentation and Work Product contain valuable trade secrets which are the sole property of Foundant, and agrees to use reasonable care to prevent other parties from learning of these trade secrets. Customer will take all reasonable steps to prevent unauthorized access to or duplication of the Software, Documentation, and Work Product.
(b) Foundant acknowledges that Customer’s data may contain valuable secrets which are the sole property of Customer. To the extent that Foundant becomes aware of the content of a Customer’s data, Foundant agrees to use reasonable care to prevent other parties from learning of these secrets without prior written permission of Customer.
(c) Foundant acknowledges that Customer’s data and files stored within the Software are the property of Customer and will be treated as confidential. Foundant agrees to use reasonable care to ensure the confidentiality of Customer’s data.
(d) The obligations of this Section 6.4 shall not extend to any information that (i) is now, or hereafter becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is hereafter furnished to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
(a) Subject to Section 6.3(b), Foundant shall indemnify, defend and hold Customer harmless from any damages awarded against Customer (including, without limitation, reasonable costs and legal fees thereby incurred by Customer) arising out of any third-party suit, claim or other legal action alleging that the use of the Software by Customer as permitted hereunder infringes any copyright, trade secret or United States patent (“Legal Action”). Notwithstanding the foregoing, Foundant shall have no indemnification
obligations with regard to any Legal Action arising out of: (i) combination of the Software with software or products not supplied, or approved in writing by Foundant; (ii) any repair, adjustment, modification or alteration to the Software by Customer or any third party, unless approved in writing by Foundant; (iii) any breach by Customer of its obligations under this Agreement; or (iv) any refusal by Customer to install and use a non-infringing version of the Software offered by Foundant under Section 2.5(a). Section 2.5(b) and this Section state the entire liability of Foundant with respect to any intellectual property infringement by the Software.
(b) Notice of Legal Action. Customer shall give prompt written notice to Foundant of any Legal Action within thirty (30) days of its first knowledge thereof and shall furnish copies to Foundant of all communications, notices and/or other actions relating to any Legal Action. Customer shall give Foundant the sole control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of Foundant and shall give Foundant such assistance as Foundant reasonably requests to defend or settle such claim. Foundant shall conduct its defense at all times in a manner which is not averse to Customer’s interests. Customer may employ its own counsel to assist it with respect to any such claim. Customer shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Foundant or its counsel, or because Foundant fails to assume control of the defense. Customer shall not settle or compromise any Legal Action without Foundant’s express written consent. Foundant cannot settle a Legal Action on Customer’s behalf without Customer’s prior consent, which shall not be unreasonably withheld. Customer’s material failure to comply with this Section 6.5(b) shall relieve Foundant of its indemnification obligation under Section 6.5(a).
(a) Foundant shall have the right to list Customer as a customer on Foundant’s website, on publicly available customer lists, or in media releases unless Customer specifically requests, in writing, to not be listed.
(b) Customer, at its sole discretion, shall cooperate with any reasonable request by Foundant for assistance in the preparation of a case study documenting Customer’s experience in using the Software. The final text of the case study shall be subject to Customer’s written approval before publication.
At Foundant’s discretion, Foundant shall have the right to virtually audit Customer’s implementation of the Software.
6.8 Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of god, pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license: or other event outside the reasonable control of the obligated party. We will both use reasonable efforts to mitigate the effect of a force majeure event.
(a) This Agreement, including any appendices, represents the entire agreement of the parties, and supersedes any prior or contemporaneous understandings, whether written or oral.
(b) This Agreement may not be amended, waived or modified except as expressly provided herein or in writing by the parties.
(c) This Agreement will be governed by and construed in accordance with the laws of Montana (excluding its choice of law rules). The parties hereby consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Montana for any claim relating to the enforcement of, or any rights under, this Agreement.
(d) Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Foundant. Foundant may not withhold such consent in the case of an assignment by Customer of its rights and obligations to an entity that has acquired all, or substantially all of Customer’s assets, or to an assignment which is part of a pre-determined asset transfer to a new foundation organization.
(e) Customer shall not export or re-export, directly or indirectly, any Software, Documentation or Confidential Information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.
7. AGREEMENT EFFECTIVE DATE
The parties acknowledge that they have read the terms and conditions of this Agreement and hereby agree to be bound thereby. This Agreement will become effective upon Customer’s acceptance by electronic acknowledgment on www.granthubonline.com