Bloomerang Subscription Agreement

1.Definitions

2.Services

1. 2.1

   Services; License. We shall make any Services purchased by you available to you during the term of the Agreement. You agree that your purchase of any Services we offer are neither contingent on the delivery of any additional functionality or features not described in the Proposal nor dependent on any oral or written comments regarding future functionality or features. Subject to the terms and conditions of this Agreement, we grant you a non-exclusive, non-sublicensable and non-transferable license to access and use the Services as defined in your Proposal and subject to any restrictions therein. Except for the foregoing, we reserve all rights, title, and interest in and to the Services and any and all related software, designs, methods, know-how, or other intellectual property of any kind developed by or on behalf of Bloomerang.

2. 2.2

   Data Conversion. If provided in your Proposal, we will convert your data for compatibility with Bloomerang’s Services. This conversion necessarily involves a number of steps requiring your cooperation with us. Should you fail to respond/act in a timely manner, or if you provide inaccurate or incomplete information, or if you use fields in a manner other than intended, the implementation may be delayed. You are responsible for ensuring the accuracy of the converted data throughout the implementation process. We will correct any issues or problems which are reported to us within fourteen (14) days after data is placed onto the testing server for review, which shall be your exclusive remedy and our only liability for any inaccuracy in the converted data. Original data files used for the conversion are retained for 90 days after the final conversion date.

3. 2.3

   Optional Services. If we provide you with access to our application programming interface (“API”) or artificial intelligence features (“AI Features”) (together, the “Optional Features”), such Optional Features are deemed part of the Services, subject to the license and other terms herein, except as otherwise provided below. We may also allow you to integrate the Services or otherwise connect to services developed, provided or maintained by third-party service providers, subject to the third-party service terms that you may agree to when setting up such services (“Third-Party Services”), and such Third-Party Services are also considered Optional Features. Your use of any Optional Features is at your discretion and not required to enjoy the benefit of Bloomerang’s Services. We may limit or suspend your use of Optional Features at any time in our sole discretion, make changes to the Optional Features, or cease providing them altogether. Except to the extent explicitly provided herein, Optional Features are provided to you AS-IS with all faults.

4. 2.4

   Changes to the Services. We are constantly working to improve the Services, and we may introduce new features, sunset old or unused features, or change the way features are implemented or used by you or your end users. We will make reasonable efforts to notify you in advance of any change if we suspect it could have a material adverse impact on your use of the Services.

3.Pricing; payment terms

1. 3.1

   Pricing. Fees are arranged into pricing tiers for a given range of records stored in your database. You may incur additional Fees for excessive use above your subscription amounts (e.g. constituents, emails sent, or attachment storage). For the most current Services pricing, check https://www.bloomerang.com/pricing or contact a sales representative. For a price quote for other Services, contact a sales representative.

2. 3.2

   Payment Method. You shall provide us with accurate and valid ACH or credit card billing information via the payment authorization page in your Proposal which will be used to pay for services rendered. Failure to do so will result in a service fee.

3. 3.3

   Payment Authorization. You authorize us to process payment for the Fees incurred in connection with the use of our Services at the current rate to your payment method provided along with this Agreement.

4. 3.4

   Billing. We will process your Fees as described in the Proposal. The start date of the Services shall be concurrent with the start date of this Agreement. Bloomerang will begin processing your ACH or Credit Card within one (1) day of that date.

5. 3.5

   Additional Terms. We reserve the right to change the Fees upon completion of any contract period. Current pricing can be found at https://www.bloomerang.com/pricing.

6. 3.6

   Suspended Access. We may suspend your access to the Services if your account is delinquent for more than ten (10) days. Your data is subject to permanent removal at thirty (30) days delinquency.

4.Term; termination

1. 4.1

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

2. 4.2

   Suspension. We may suspend your access to the Services if you breach this Agreement or if we determine, in our reasonable judgment, that you may be performing activities harmful to us or other users of the Services.

3. 4.3

   Termination for Cause. Either party may terminate this Agreement immediately upon any material breach by the other party which is either uncurable or remains uncured for 30 days following notice of the breach. In addition, you may terminate the Agreement within 30 days of any change we make to its terms which diminishes your rights or our obligations under the Agreement, or any change to the Services (other than the Optional Features) that negatively impacts your use.

4. 4.4

   Effect of Termination. All terms that contemplate performance beyond the term of the Agreement shall survive its expiration or termination. If you terminate the Agreement pursuant to this Section 4, any Fees prepaid for Services beyond the date of such termination will be refunded to you after any unpaid invoice balances are deducted.

5.Customer obligations

1. 5.1

   Your Obligations. You represent and warrant that you will maintain a privacy policy that describes your collection and use of personal information in connection with the Services and that your use of the Services will at all times comply with applicable laws and regulations, including those governing donor and privacy, electronic communications, and charitable solicitation. You are responsible for any and all activities that occur under its account(s) and the confidentiality of all its passwords in connection with the Services. You shall notify us of any unauthorized use of its account(s) or any other breach of security. We will suspend or change access to your account within one (1) business day or less after receipt of written notice from you that a password has been lost or otherwise compromised. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services. Bloomerang reserves the right to monitor usage of the Services for diagnostic and security protection purposes and the right to improve and modify the Services at any time without notice. You are responsible for meeting all other technical requirements of the Services, including using a device with a minimum screen resolution of 1024x768 using the latest version of Chrome, Firefox, Safari, or Edge. We will not be liable for any service interruptions, errors or loss of data caused by malware or non-conforming hardware used by you.

2. 5.2

   Restrictions; Acceptable Use. You may not yourself, directly or indirectly (i) create derivative works based on any part of the Services; (ii) copy, frame, or mirror any part or content of the Services; (iii) reverse engineer the Services; (iv) copy any features, functions, or components of the Services or access the Services to build any competitive product or service; or (v) use the Services in any way that is threatening, abusive, harassing, stalking, defamatory, false, misleading, or fraudulent; invasive of another’s privacy or in violation of another’s legal rights; contains vulgar, obscene, indecent, or unlawful material; advocates for or demonstrates hate, hostility, or violence towards members of any race, religion, color, sex, age, national origin or ancestry, or on the basis of genetic information, marital status, parental status, sexual orientation, gender identity and expression, disability, or status as a veteran.

3. 5.3

   Email Service. The Services allow you to send and receive email through and from your Bloomerang account. By using this functionality, you agree to comply with all laws applicable to the sending of email. We reserve the right to suspend, limit, or terminate your use of the Services if we reasonably believe that you are (i) using email without the explicit and informed consent of recipients, including the use of purchased or rented lists; (ii) spoofing any email or otherwise using any email address, domain name, or mail server without authorization; (iii) sending emails that result in an unacceptable number of spam or UCE complaints; or (iv) failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of such request

6.Data protection; confidentiality

1. 6.1

   Customer Data. All of the data you provide to us or store on our platform remains your sole property, and we will only use or disclose it to any third party as described in this Agreement. We may provide public-facing reports that include general insights about our customers and their use of our Services; provided that you will not be identified in any such reports, and any customer data shall be anonymized, aggregated, and contain no customer confidential or proprietary information or any personal information protected by privacy and data protection laws (“Aggregate Data”).

2. 6.2

   Access to Data. You may download your data for free via the standard reporting parameters provided by the Services at any time during the term of this Agreement. We are not responsible for storage or retention of your data more than ninety (90) days after termination of this Agreement. If you request that we provide your data to you in any other format or store your data for any period of time after expiration or termination of the Agreement, you will incur additional charges which will be quoted to you at the time of your request.

3. 6.3

   Credit Card Information. For all e-commerce transactions processed on our hosted system, the credit card information that is collected is used solely for the purpose of completing the specific transaction. After the transaction is complete, the credit card data is encrypted and may only be used for future authorized transactions.

4. 6.4

   Confidential Information. “Confidential Information” means all information that a party discloses to the other party in connection with this Agreement, whether in oral, written, visual, electronic, or other form, excluding any information that (a) is or becomes public through no fault of the receiving party, (b) was known by the receiving party without restriction before disclosure, (c) is independently developed without using the disclosing party’s Confidential Information, or (d) is received from a third party without breach of a duty of confidentiality. The receiving party will protect the disclosing party’s Confidential Information using reasonable care and will use it only to perform or receive Services under this Agreement. The receiving party may disclose Confidential Information to its employees and contractors who need to know it for that purpose and who are bound by confidentiality obligations at least as protective as this Section. If the receiving party is required by law to disclose Confidential Information, it will, to the extent legally permitted, give the disclosing party prompt notice and reasonably cooperate with efforts to limit the disclosure. On request, the receiving party will return or delete the disclosing party’s Confidential Information in its possession, except that it may retain copies as required by law or for routine archival and compliance purposes, subject to ongoing confidentiality obligations.

7.Artificial intelligence features

1. 7.1

   Our Obligations. Bloomerang will comply with applicable privacy, consumer protection, and other laws relating to its development, use, and provision of AI Features. We will maintain and follow internal policies and procedures designed to promote responsible development and operation of AI Features, including measures intended to reduce the risk of hallucinations, unlawful discrimination, and material bias, offensive, hateful, harassing, or sexually explicit content. We will not use any personal data or confidential information to train any AI model or to create generalized model improvements that benefit any third party. Consistent with the other terms of this Agreement. we may collect and use Aggregate Data for any lawful, internal business purpose, including to operate, maintain, secure, train, and improve the Services and AI Features.

2. 7.2

   Your Obligations. You will comply with applicable privacy, consumer protection, and other laws relating to your use of AI Features. You are responsible for your use of and reliance on AI Features. AI Features can make mistakes and may be inaccurate, incomplete, or otherwise unsuitable for your intended use. You may not use our AI Features (or any other part or aspect of our Services) as a substitute for professional, legal, financial, tax, medical, or similar advice or as the basis for any decision concerning the credit, education, employment, housing, insurance, or legal, or medical matters of an individual. You are responsible for maintaining meaningful human oversight of any outputs provided by the AI Features, including their accuracy and appropriateness, and for any decision you make or action you take in reliance on such outputs.

3. 7.3

   Acceptable Use. In addition to any other restrictions described herein, you and your authorized users agree that you will not: (i) attempt to bypass, disable, or circumvent any safety, usage, or content controls, or manipulate an AI Feature through prompt injection, “jailbreaking,” or similar techniques; (ii) use AI Features to create or distribute content that is false, deceptive, fraudulent, or misleading, including in communications to donors or constituents; (iii) use AI Features to infer or compile sensitive personal information about an individual, or to create a synthetic likeness of a real person without that person’s consent; or (iv) use AI Features, Inputs, or Outputs to develop or train a competing product, service, or machine-learning model.

8.Warranties; disclaimers

Bloomerang will provide the Services to you in accordance with the specifications and description in a Proposal, in a professional and workmanlike manner, and in accordance with all applicable laws and regulations. Although we will take commercially reasonable steps to provide error-free and continuous service, we do not represent, warrant or guarantee that the Services will be uninterrupted or error free. Except for the foregoing, and to the extent allowed under applicable law, we provide no warranties and hereby disclaim all implied warranties, including any warranties of merchantability, fitness for a particular purpose and non-infringement or related in any way to course of dealing or trade.

9.Limitation of liability

Our TOTAL LIABILITY, if any, with respect to the subject matter of this agreement (including, but not limited to, liability arising out of contract, tort, strict liability, breach of warranty or otherwise) is limited to the Fees paid by you to us under this agreement in the 12 months prior to the act or injury that gave rise to the liability; provided, however, that such limitation shall not apply to damages to you directly caused by willful or malicious misconduct by us or our employees. We will not be liable in any event for loss or inaccuracy of data, loss of profits or revenue, or indirect, special, punitive, incidental or consequential damages (including, without limitation, the cost of any substitute service), whether or not foreseeable and even if we have been advised of the possibility of such damages. This Section shall apply to any cause of action arising out of or related to the Agreement.

10.General terms

1. 10.1

   Governing Law; Venue. This Agreement is to be governed by and construed in accordance with the laws of Indiana, without regard to its conflict of law principles. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the United States District Court for the Southern District of Indiana (Indianapolis Division) or the courts of the State of Indiana sitting in Indianapolis, Indiana, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts.

2. 10.2

   Litigation Costs and Expenses. If any party institutes any legal suit, action or proceeding against the other party to enforce this Agreement (or obtain any other remedy regarding any breach of this Agreement) or arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses, court costs and other reasonable costs and expenses of litigation.

3. 10.3

   Legal Notice. All notices under this Agreement shall either be given in writing or sent via email to the contact you provide to us.

4. 10.4

   Relationship of the Parties; Assignment. No agency, partnership, joint venture, or employment relationship is created by this Agreement, and neither party has any authority whatsoever to represent the other or bind it in any way. This Agreement cannot be assigned or delegated by you without our prior written consent, and any purported assignment in violation of the foregoing shall be void and without effect.

5. 10.5

   Feedback. In the course of using the Services, or at our request from time to time, you may provide opinions, suggestions, comments, or other feedback related to or about our Services. If you do, you agree that such feedback is provided freely, and we are free to use and disclose such feedback for any purpose without an accounting to you or any other person, provided that we shall not disclose you as the source of such feedback or reveal any other confidential information about you. We shall own all right, title, and interest in and to feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we may develop.

6. 10.6

   Entire Agreement. This Agreement sets forth the entire understanding between you and us with respect to its subject matter and supersedes all prior negotiations, understandings and agreements, express or implied. If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force. In the event of any conflict between the Subscription Agreement and a Proposal, the terms listed in your Proposal shall take precedence, but only with regard to that Proposal, followed by the Subscription Agreement and any referenced terms.