MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this “Agreement”) governs Your free trial of the Services. If You purchase our Services, this Agreement will also govern Your purchase and ongoing use of those Services. By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing an Order Form that references this Agreement, as directed by Us, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a Company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Services.
This Agreement was last updated on March 9, 2016. This Agreement is effective between You and Us as of the date You accept this Agreement (the “Effective Date”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-blackthorn.io Applications” means online applications and services and offline software products that are provided by entities or individuals other than Us, and that interoperate with the Services, including but not limited to those provided by salesforce.com (“salesforce.com”).
“Order Forms” means the documents for placing orders hereunder that are entered into between You and Us or any of our respective Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via web pages designated by Us, including associated offline components, as described in the User Guide. “Services” include both Purchased Services and Services provided on a free trial basis. “Services” exclude Non-blackthorn.io Applications.
“User Guide” means the online user guide for the Services, accessible via web pages designated by Us, as updated from time to time.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We”, “Us”, or "Our" means blackthorn.io, Inc., a Delaware corporation.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
2. FREE TRIAL
2.1 We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period, as specified by Us, for which You registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2 Notwithstanding anything to the contrary herein (including, without limitation, Section 8 (Warranties and Disclaimers)), during the free trial the Services are provided “as-is” without any warranty.
2.3 Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. SERVICES
3.1 Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the applicable Order Forms during each subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Each Order Form entered into by You and Us is hereby deemed to be a part of this Agreement. In the event of any conflict between the terms of this Agreement and any Order Form, the terms of this Agreement will govern.
3.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Purchased Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Purchased Services.
3.3 Our Responsibilities. We shall: (i) provide basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased; (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for (a) planned downtime (of which We shall give at least 8 hours notice via the Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific time), (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, telecommunication service provider failures or delays, utility or other infrastructure provider failures or delays, denial of service attacks, and (c) any unavailability caused by unaffiliated third parties, including, without limitation, salesforce.com, Stripe, Heroku, Facebook, LinkedIn, and Google; and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.4 Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data, (b) disclose Your Data except (i) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, (ii) in order to provide the Services hereunder, or (iii) as expressly permitted in writing by You, or (c) access Your Data except to provide the Purchased Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. You acknowledge and agree that Your Data may be hosted and stored by salesforce.com and/or Our shared Mongo DB database.
3.5 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement, the User Guide, and all applicable laws and government regulations. You may not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You agree not to use CRM functions other than those described in the Services help text even if Your account has access to them. If You require additional facilities of the salesforce.com CRM service, and You have not been referred to Us by salesforce.com for the purpose of purchasing Purchased Services, You agree to order these additional services directly from Us. If You are in any doubt as to what facilities You are permitted to use, You will consult Us for advice.
3.6 Restrictions. You hereby represent and warrant to Us that You do not, directly or indirectly, compete with Us or Our business in any respect, and You hereby agree that You may not access the Services if the foregoing representation and warranty is untrue at any time, except with Our prior written consent, which consent may be withheld by Us in Our sole discretion. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and You agree that you may only access the Services for a legitimate business purpose.
4. NON-BLACKTHORN.IO PROVIDERS
4.1 Services Provided by salesforce.com. This Agreement is between You and Us. You acknowledge that the Services are hosted for Us by salesforce.com. By agreeing to these terms You confirm that You accept and agree to abide by (i) the salesforce.com Platform Terms of Use and (ii) the Our Platform Terms of Use located on a website designated by Us. Notwithstanding any other provision of this Agreement, You acknowledge and agree that We shall not be responsible or liable for the acts or omissions of salesforce.com.
4.2 Non-blackthorn.io Applications and Your Data. If You install or enable Non-blackthorn.io Applications for use with the Services, You acknowledge that We may allow providers of those Non-blackthorn.io Applications to access Your Data as required for the interoperation and support of such Non-blackthorn.io Applications with the Services. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-blackthorn.io Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-blackthorn.io Applications for use with the Services.
4.3 Integration with Non-blackthorn.io Applications. The Services may contain features designed to interoperate with Non-blackthorn.io Applications. To use such features, You may be required to obtain access to such Non-blackthorn.io Applications from their providers. If the provider of any such Non-blackthorn.io Application ceases to make the Non-blackthorn.io Application available for interoperation with the corresponding Services features on reasonable terms, We may cease providing such Services features without entitling You to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Fees. Blackthorn | Donations does not have any user fees. Payments originating from Salesforce do not have any blackthorn.io, Inc. fees. Payments originating from the Blackthorn | Donations' embeddable forms and hosted forms have built-in pricing. You agree to the app's included discount schedule, unless otherwise noted by an Order superseding the included pricing schedule.
5.2 Payment. Fees will be automatically deducted at the time of the transaction.
5.3 Overdue Charges (for other payment scenarios than the above listed transaction fees). If any amounts invoiced hereunder are not received by Us by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4 Suspension of Service. If any charge owing by You is 30 days or more overdue (except for any charges that are being disputed by You in good faith and in accordance with the terms of Section 5.2 and 5.5 hereof), We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full, provided We have given You 10 or more days’ prior notice that Your account is overdue in accordance with the “Notices” section below.
5.5 Payment Disputes. We shall not exercise Our rights under the “Overdue Charges” or “Suspension of Service” sections above if You are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.
5.6 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.7 blackthorn.io reserves the right to charge a fee for any of its free applications at a later date, given at least three months of prior notice.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes and other information disclosed by such party. Confidential Information (other than Your Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party.
6.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and accountants [and salesforce.com] without the other party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. LIMITATION OF LIABILITY
7.1 Limitation Of Liability. In no event shall either party’s total liability arising out of or related to this Agreement, whether in contract or tort or under any other theory of liability, exceed the amount paid by You hereunder in the twelve months immediately preceding the events giving rise to the liability. The foregoing limit will not apply to Your payment obligations under the “Fees and Payment for Purchased Services” section above or for claims for fraud, willful misconduct, or intentional misrepresentation. We will not have any liability based upon or arising out of any actual or alleged defect in any technology products, hardware or software that is primarily caused by a third party, including, but not limited to, any third party hardware or software supplier, manufacturer or originator.
7.2 Exclusion Of Consequential And Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
8. TERM AND TERMINATION
8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
8.2 Term of User Subscriptions. User subscriptions for Purchased Services commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods of one year each, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing for the relevant Purchased Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time. If blackthorn.io is engaged in a professional services contract with subscriber/customer, which involves the the use of donation360, blackthorn.io reserves all rights to terminate full application functionality in case the subscriber/customer has any invoices overdue by more than 15 days related to services already rendered under a past or ongoing services engagement.
8.3 Termination for Cause. Either party hereto may terminate this Agreement for “Cause” (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.4 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.5 Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
8.6 Surviving Provisions. The sections titled “Fees and Payment for Purchased Services,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Return of Your Data,” “Surviving Provisions,” (“Notices, Governing Law and Arbitration,” and “General Provisions” shall survive any termination or expiration of this Agreement.
9. NOTICES, GOVERNING LAW AND VENUE
9.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the same day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to Us shall be addressed to blackthorn.io, Inc., 222 Broadway, New York, New York, 10038, Email: chris@blackthorn.io.io and benedek@blackthorn.io.io.
9.2 Agreement to Governing Law. This Agreement will be governed by the laws of the State of New York, without regard to choice or conflicts of law rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
9.3 Venue; Waiver of Trial by Jury. The parties hereby irrevocably agree, consent and submit to the non-exclusive jurisdiction of any local court, or any United States federal court, sitting in New York County, New York, with regard to any actions or proceedings arising from, relating to or in connection with this Agreement. Each party hereby waives any right it may have to transfer or change the venue of any litigation filed in any local court, or any United States federal court, sitting in New York County, New York. Each party hereby knowingly and voluntarily waives all rights to trial by jury in any action or proceeding to enforce or defend any rights under this Agreement and in any action directly or indirectly related to or connected with the Purchased Services, or otherwise arising from the relationship of the parties hereto. Each party acknowledges that this waiver may deprive it of an important right and that such waiver has knowingly and voluntarily been agreed to by such party.
10. GENERAL PROVISIONS
10.1 Export Compliance. The Services, other Our technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
10.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other party’s employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If a party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other party.
10.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. No person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.
10.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.9 Counterparts. This Agreement and any Order Forms may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
