BLACKBAUD SOFTWARE SUB-LICENSE AGREEMENT
THIS SOFTWARE SUB-LICENSE AGREEMENT (“Agreement”) is effective as of (the “Effective Date”), by and BETWEEN
(1) THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD, an English corporate body with its administrative offices at University Offices, Wellington Square, Oxford, OX1 2JD (the “University”) and
(2) < insert participant with its administrative offices at < insert address > (“Permitted User”).
RECITALS
(A) The University has entered into a licence agreement for the use of the Software (as defined below in Section 1) with Blackbaud Europe Limited (“Blackbaud”) which is attached as Schedule 1 (the “Blackbaud Software Licence Agreement”);
(B) The purpose of this sub-licence agreement is to establish the terms on which Permitted User may use the Software (as defined below in Section 1) and the terms that shall govern the relationship between the University and Permitted User.
THE PARTIES THEREFORE AGREE AS FOLLOWS
1. The University grants and the Permitted User accepts a transferable, non-exclusive licence to use the software specified in Schedule 2 (the “Software”) in machine readable object code form only (and the user documentation accompanying the Software (“User Documentation”)) solely in the manner authorised by this Agreement. The Software shall be used by the Permitted User only for its own purposes and operations, including operations which involve the University and/or other Permitted Users (meaning other colleges, Permanent Private Halls and Recognised Independent Centres from time to time with whom the University has entered into an agreement on these terms) having access to the Software through the University. The Permitted User may only use the Software in the same “Authorised Computing Environments” as Licensee, as described in Schedule 1 of the Blackbaud Software License Agreement. The Permitted User shall in addition comply with the terms of the Participation Agreement set out in Schedule 4. The parties acknowledge the Software is provided to it by the University, and not by Blackbaud and that Blackbaud is not a party to this Agreement or to the Participation Agreement and that no term of the Participation Agreement is binding on Blackbaud. Nothing in the previous sentence will limit the rights of Permitted Users to enforce certain terms of the Blackbaud Software Licence Agreement against Blackbaud (as set out in Section 13 of that agreement) or the rights of Blackbaud to enforce certain terms of this Agreement against Permitted Users (as set out in Section 12 of this Agreement).
2. With respect to Blackbaud Enterprise CRM and Blackbaud Direct Marketing Software, the maximum number of the Permitted User’s employees, contractors, volunteers and other agents who are simultaneously accessing or using the software at any given time shall not exceed the “Concurrent User Limit” specified in Schedule 2. With respect to the
NetCommunity Software, if the number of e-mails that are transmitted by Blackbaud through the Permitted User’s use of the Software during any year exceeds the limit specified in Schedule 2, the Permitted User agrees to pay the University at its then-current standard rates for such excess usage. The Permitted User’s use of the Software may not exceed the scope of the use provisions above without the express written agreement of the University.
3. Permitted User agrees to provide a written report on an annual basis upon request by the University containing information reasonably requested by the University to establish the number of Permitted User’s users and e-mails. Permitted User will cooperate with the University to grant Blackbaud access to its facilities and personnel on reasonable prior notice during Permitted User’s normal business hours for the purpose of conducting audits of Permitted User’s use of the Software.
4. In consideration of the rights granted in this Agreement, Permitted User agrees to pay the University the amount specified in the Participant Terms Sheet of the Participation Agreement set out in Schedule 4 and the Service Level Agreement set out in Schedule 5. Payment shall be made as specified in the Participation Agreement and Service Level Agreement.
5. Permitted User acknowledges that the Software and the User Documentation are proprietary products and that all right, title and interest in and to the Software and User Documentation, including all associated intellectual property rights, are and shall at all times remain with Blackbaud and its third party licensors. The Software contains trade secret and proprietary information owned by Blackbaud or its third party licensors and is protected by United States copyright laws and international trade provisions. The Permitted User must treat the Software like any other copyrighted material and, except to the limited extent required by law notwithstanding contractual prohibition, as expressly permitted by this Agreement, and for backup or archival purposes, for which Permitted User may make copies, Permitted User may not disclose, copy, transfer or transmit the Software or the User Documentation, electronically or otherwise, for any purpose. All permitted copies of the Software and the User Documentation must include Blackbaud’s copyright and other proprietary notices.
6. Permitted User shall not make any modifications to the Software. Except as expressly provided by this Agreement, Permitted User may not use the Software for the benefit of any third parties or provide service bureau or other access or use of the Software to third parties. Except as expressly provided by this Agreement, Permitted User may not sublicense, assign, transfer, sell, rent, lend or lease the Software or the User Documentation, or any portions thereof, and any attempt to do so is null and void. Except to the limited extent required by law notwithstanding contractual prohibition, Permitted User may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software.
7. THE UNIVERSITY WILL USE REASONABLE EFFORTS TO PROVIDE
SUPPORT TO THE PERMITTED USER AS SET OUT IN THE PARTICIPATION AGREEMENT BUT SUBJECT TO THAT, NEITHER THE UNIVERSITY NOR BLACKBAUD CAN OR DOES WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY THE PERMITTED USERS IN USING THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET THE PERMITTED USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
For the Permitted User’s information, Blackbaud provides a limited warranty under Section 5 of the Blackbaud Software License Agreement, and a remedy offered under Section 6 of the Blackbaud Software License Agreement may be sought by the University to the extent applicable. The Permitted User may require the University to seek the remedy offered by Blackbaud under section 6 of the Blackbaud Software Licence Agreement and in addition the Permitted User has the right to enforce this provision on its own account.
FURTHER, THE PERMITTED USERS ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED FREE OF CHARGE AND THAT ON THAT BASIS RECOGNISES THAT EXCEPT FOR THE WARRANTIES REFERENCED ABOVE , THE SOFTWARE IS PROVIDED AND LICENSED “AS IS” AND THE UNIVERSITY AND BLACKBAUD EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED TERMS OF SATISFACTORY QUALITY AND FITNESS FOR PURPOSE.
8. Notwithstanding anything else in this Agreement, no liability (a) for personal injury or death in negligence, (b) for breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979, Section 2 Supply of Goods and Services Act 1982; or (c) for fraudulent misrepresentation, is limited or excluded by any term of this Agreement.
9. SUBJECT TO SECTION 8, IN NO EVENT SHALL A PARTY (OR BLACKBAUD)
BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF THAT PARTY (OR BLACKBAUD) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS IN THIS SECTION 9 DO NOT APPLY TO THIRD PARTY PAYMENTS WHICH BLACKBAUD IS OBLIGED TO MAKE TO PERMITTED USER UNDER SECTION 13 BELOW.
10. SUBJECT TO SECTION 8, IN NO EVENT WILL EITHER PARTY’S
AGGREGATE LIABILITY EXCEED AN AMOUNT EQUAL TO TOTAL FEES PAID OR PAYABLE BY PERMITTED USER TO THE UNIVERSITY UNDER THIS AGREEMENT DURING THE TWO-YEAR PERIOD PRECEDING NOTICE TO THE OTHER PARTY OF THE FIRST PARTY’S LOSS. IN ADDITION, IN NO EVENT WILL BLACKBAUD’S LIABILITY (IF ANY) TO LICENSEE AND ANY AND ALL PERMITTED USERS TAKEN TOGETHER, EXCEED THE AMOUNT SET FORTH IN SECTION 9.3 OF THE BLACKBAUD SOFTWARE LICENSE AGREEMENT. THE ABOVE LIMITATIONS IN THIS SECTION 10 DO NOT APPLY TO (A) ANY BREACH BY THE PERMITTED USER OF THE RESTRICTIONS IN SECTIONS 1, 2, 5 OR 6 INVOLVING FRAUD OR INTENTIONAL MISCONDUCT OF THE PERMITTED USER, OR (b) ANY LIABILITY IMPOSED ON THE PERMITTED USER PURSUANT TO SECTION 13 BELOW. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
11. This Agreement shall be effective until terminated. Permitted User may terminate this Agreement at any time by giving 30 days written notice to the University. The University may terminate this Agreement with immediate effect upon termination of the Blackbaud Software Licence Agreement by either the University or Blackbaud, or if Blackbaud terminates the right of the Permitted User to have access to the Software as a result of a failure by the Permitted User to comply with a material term of this Agreement. Upon termination Permitted User shall at the University’s option destroy, erase or return all copies
of the Software to the University. In the event of termination of this Agreement for whatever reason, all Sections shall survive except Sections 1 to 4 inclusive.
12. The parties agree that Blackbaud is intended to be a third party beneficiary of this Agreement and as such, shall be permitted to enforce this Agreement and take against directly against Permitted User for any breach of this Agreement by Permitted User. Except for the rights of Blackbaud as set forth above, the provisions of the Contracts (Rights of Third Parties) Act shall not apply to confer any benefit on any person who is not a party to this Agreement.
13. The parties acknowledge that the Blackbaud Software License Agreement contains an indemnity in the following terms:
“Blackbaud shall indemnify and defend Licensee and Permitted Users against any third party claims that the Software provided by Blackbaud to Licensee infringes any patent, copyright or other intellectual property right, provided that Blackbaud is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim, provided this Agreement has not been terminated, Blackbaud shall, in addition to indemnifying Licensee and Permitted Users against any payments which they are obliged to make to third parties and any attendant costs (together, “Third Party Payments”) in its reasonable judgment and at its option and expense: (i) obtain for Licensee the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if Blackbaud determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the license for the infringing Software and return the license fee paid by Licensee for such Software pro-rated on a straight line basis over a five (5) year period from the date of this Agreement. Blackbaud shall have no liability to indemnify and defend Licensee or Permitted Users to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Licensee or Permitted Users; (ii) the alleged infringement is the result of a modification made by Licensee or any Permitted User; or (iii) Licensee or any Permitted User uses the Software other than in accordance with this Agreement or the User Documentation and such use gives rise to the third party claim in question. This Section states Blackbaud’s entire liability and Licensee’s and Permitted Users’ sole and exclusive remedy for claims relating to infringement.”
The University confirms that the indemnity in respect of any third party claims that may be made against the Permitted User as set out above is intended to benefit the Permitted User and that Blackbaud has agreed the same shall be directly enforceable against it by the Permitted User. To the extent that Blackbaud is entitled to refuse to indemnify the University or any other permitted user as a result of the Permitted User’s acts or omissions, the Permitted User will indemnify and hold harmless the University and/or such additional permitted user in respect of loss incurred by such party(parties) as a result of the Permitted User’s acts or omissions.
14. This Agreement incorporates the Agreement to Purchase between the University and Blackbaud attached as Schedule 3 (“ATP”). In the event of any conflict between the terms of the ATP and the terms of this Agreement, the ATP shall control with respect to such conflicting terms. This Agreement and its Schedules together set forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements,
representations, communications and understandings, both oral and written, are superseded hereby.
15. If any court of competent jurisdiction declares any term of this Agreement void or unenforceable, that declaration shall have no effect on the remaining terms hereof. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of this Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. Neither party shall be liable for any delay, nonperformance or related damages if such delay or nonperformance was due to causes beyond its reasonable control, including, but not limited to acts of God, civil emergencies, electrical power failure, loss of communications, or the delay of the other party or third parties.
16. This agreement shall be governed by, and construed and enforced in accordance with, the laws of England and Wales. The parties submit to the exclusive jurisdiction of the English courts. Notwithstanding the foregoing, the parties agree that Blackbaud shall be entitled to commence proceedings of whatever nature to protect its intellectual property rights and confidential information in any jurisdiction which will accept suit.
Schedule 1: Blackbaud Software Licence Agreement
Schedule 2: The Software
Schedule 3: The Agreement to Purchase between The University and Blackbaud
Schedule 4: Participation Agreement
SIGNED for and on behalf of SIGNED for and on behalf of
THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD
SIGNED for and on behalf of [ insert participant]
:
Name: Name:
Position: Position:
SCHEDULE 1
BLACKBAUD SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) is effective as of < > (the “Effective Date”), by and BETWEEN
(1) BLACKBAUD EUROPE LIMITED, a Scottish company with its principal place of business located at Tower Building, 11 York Road, London, SE1 7NX, its registered office located at 38 Queen Street, Glasgow, G1 3DX, and its corporate registration number SC212593 (“Blackbaud”), and
(2) THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY
OF OXFORD, an English corporate body with its administrative offices at University Offices, Wellington Square, Oxford, OX1 2JD (“Licensee”).
The Schedules attached hereto are incorporated herein by reference. This Agreement is also related to and deemed incorporated into the Agreement to Purchase (“ATP”) between Blackbaud and Licensee dated as of the Effective Date. In the event of any conflict between the terms of the ATP and the terms of this Agreement, the ATP shall control with respect to such conflicting terms.
1. LICENSE GRANT AND LIMITATIONS
Blackbaud grants to Licensee for the benefit of Licensee (including its departments and other organizational units) and its colleges, Permanent Private Halls and Recognised Independent Centres from time to time (“Permitted Users”), and Licensee accepts, a nonexclusive license to use the software specified in Schedule 1 (the “Software”) in machine readable, object code form only, and the accompanying user documentation (“User Documentation”) for the Software, only as authorised in this Agreement. Such license shall be non-transferable except that Licensee shall be permitted to make it available to all or any of the Permitted Users in accordance with Section 13 below. The Software shall be used by Licensee and Permitted Users only for their own individual and collective purposes and operations. Licensee and Permitted Users may only use the Software in the “Authorised Computing Environments” specified in Schedule 1. With respect to Blackbaud Enterprise CRM and Blackbaud Direct Marketing Software, the maximum aggregate number of Licensee’s and Permitted Users’ employees, contractors, volunteers, and other agents that are simultaneously accessing or using the Software at any given time shall not exceed the “Concurrent User Limit” specified in Schedule 1. With respect to the NetCommunity Software, if the number of e-mails that are transmitted by Blackbaud through the Licensee’s and Permitted Users’ cumulative use of the Software during any Contract Year of the Term exceeds the “Annual E-Mail Limit” specified in Schedule 1, Licensee agrees to pay Blackbaud at its then-current standard rates for such excess usage. Licensee may receive updates on the cumulative number of e-mails that have been transmitted by Blackbaud through the Licensee’s and Permitted Users’ cumulative use of the Software from time to time by contacting Blackbaud’s support team. Licensee’s and Permitted Users’ use of the Software may not exceed the scope of the use provisions above without the express written agreement of Blackbaud and Licensee’s payment of additional license fees at the then-current list price. Licensee agrees to provide a written report on an annual basis upon request by Blackbaud containing information reasonably requested by Blackbaud to establish the number of Licensee’s Permitted Users, computing environments
and e-mails; and to use its reasonable endeavours to procure such written reports from the Permitted Users.
2. FEES
Licensee agrees to pay the fees specified in the ATP in exchange for the license granted in this Agreement.
3. INTELLECTUAL PROPERTY RIGHTS
Licensee agrees and Blackbaud represents that the Software and the User Documentation are proprietary products. Licensee acknowledges that, as between the parties, all right, title and interest in and to the Software and User Documentation, including all associated intellectual property rights, are and shall at all times remain with Blackbaud and its third party licensors. The Software contains trade secret and proprietary information owned by Blackbaud or its third party licensors and is protected by United States copyright laws and international trade provisions. Licensee must treat the Software like any other copyrighted material and, except to the limited extent required by law notwithstanding contractual prohibition, as expressly permitted by this Agreement, and for backup or archival purposes, for which Licensee may make copies, Licensee may not disclose, copy, transfer or transmit the Software or the User Documentation, electronically or otherwise, for any purpose. All permitted copies of the Software and the User Documentation must include Blackbaud’s copyright and other proprietary notices.
4. OTHER RESTRICTIONS
Except as expressly provided by this Agreement, Licensee may not use the Software for the benefit of any third parties or provide service bureau or other access or use of the Software to third parties. Except as expressly provided by this Agreement, Licensee may not sublicense, assign, transfer, sell, rent, lend or lease the Software or the User Documentation, or any portions thereof, and any attempt to do so is null and void. Except to the limited extent permitted by law notwithstanding contractual prohibition, Licensee may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software.
5. LIMITED WARRANTY
For a period of ninety (90) days from the date of Licensee’s receipt of the Software (the “Warranty Period”), Blackbaud warrants that the media on which the Software is distributed will be free from defects in materials and workmanship and that the Software will perform substantially in accordance with the functional specifications contained in the User Documentation. Any written or oral information or representations provided by Blackbaud agents, employees, resellers, consultants or service providers with respect to the use or operation of the Software will in no way increase the scope of this warranty.
6. CUSTOMER REMEDIES
If during the Warranty Period the Software fails to comply with the warranty set forth above, Blackbaud’s entire liability and Licensee’s exclusive remedy (on behalf of itself and Permitted Users) will be either a) repair or replacement of the Software, or if in Blackbaud’s opinion such repair or replacement is not possible, then b) a full refund of the price paid for
the Software. The foregoing remedies apply only if Licensee returns all copies of the Software to Blackbaud within 90 days of receipt by Licensee. This limited warranty is void if failure of the Software has resulted from accident, abuse, misuse or negligence of any kind in the use, handling or operation of the Software, including any use not consistent with the User Documentation or Blackbaud training.
7. NO OTHER WARRANTIES
BLACKBAUD DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY LICENSEE OR PERMITTED USERS IN USING THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET LICENSEE’S AND PERMITTED USERS’ REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, AND SUBJECT TO SECTION 9.1, THE SOFTWARE IS LICENSED “AS IS” AND BLACKBAUD EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED TERMS OF SATISFACTORY QUALITY AND FITNESS FOR PURPOSE.
8. INFRINGEMENT INDEMNITY
Blackbaud shall indemnify and defend Licensee and Permitted Users against any third party claims that the Software provided by Blackbaud to Licensee infringes any patent, copyright or other intellectual property right, provided that Blackbaud is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim, provided this Agreement has not been terminated, Blackbaud shall, in addition to indemnifying Licensee and Permitted Users against any payments which they are obliged to make to third parties and any attendant costs (together, “Third Party Payments”) in its reasonable judgment and at its option and expense: (i) obtain for Licensee the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if Blackbaud determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the license for the infringing Software and return the license fee paid by Licensee for such Software pro-rated on a straight line basis over a five (5) year period from the date of this Agreement. Blackbaud shall have no liability to indemnify and defend Licensee or Permitted Users to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Licensee or Permitted Users; (ii) the alleged infringement is the result of a modification made by Licensee or any Permitted User; or (iii) Licensee or any Permitted User uses the Software other than in accordance with this Agreement or the User Documentation and such use gives rise to the third party claim in question. This Section states Blackbaud’s entire liability and Licensee’s and Permitted Users’ sole and exclusive remedy for claims relating to infringement.
9. LIMITATION ON LIABILITY
9.1 Notwithstanding anything else in this Agreement, no liability (a) for personal injury or death in negligence, (b) for breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979, Section 2 Supply of Goods and Services Act 1982; (c)
for fraudulent misrepresentation, or (d) to pay any amounts properly owing under this Agreement, is limited or excluded by any term of this Agreement or the ATP.
9.2 SUBJECT TO SECTION 9.1, IN NO EVENT SHALL A PARTY BE LIABLE FOR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS IN THIS SECTION 9.2 DO NOT APPLY TO THIRD PARTY PAYMENTS WHICH BLACKBAUD IS OBLIGED TO MAKE TO LICENSEE AND/OR PERMITTED USERS UNDER SECTION 8 ABOVE.
9.3 SUBJECT TO SECTION 9.1, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED AN AMOUNT EQUAL TO THE LICENSE FEES PAID OR PAYABLE BY LICENSEE DURING THE TERM OF THIS AGREEMENT. THE LIMITATION IN THIS SECTION 9.3 WHEN APPLIED TO THE LIABILITY OF BLACKBAUD IS AN AGGREGATE LIMITATION IN RESPECT OF LIABILITY TO THE LICENSEE AND ANY AND ALL PERMITTED USERS TAKEN TOGETHER. THE ABOVE LIMITATIONS IN THIS SECTION 9.3 DO NOT APPLY TO (A) THIRD PARTY PAYMENTS WHICH BLACKBAUD IS OBLIGED TO MAKE TO LICENSEE AND/OR PERMITTED USERS UNDER SECTION 8 ABOVE, OR (B) ANY BREACH BY THE LICENSEE OF THE RESTRICTIONS IN SECTIONS 1, 3 OR 4 INVOLVING FRAUD OR INTENTIONAL MISCONDUCT OF THE LICENSEE. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
10. TERMINATION
This license is effective until terminated. Licensee may terminate the license granted under this Agreement at any time by giving thirty (30) days prior written notice to Blackbaud. Blackbaud may terminate this Agreement upon Licensee’s failure to comply with any material term or condition hereof. In the event of termination of this Agreement for any reason, Licensee’s and all Permitted Users’ rights to use the Software will cease, and Licensee and all Permitted Users shall destroy, erase or return all copies of the Software to Blackbaud. Where any Permitted User fails to comply with a material term of the terms set out in Schedule 2 (“the Sub-licence Terms”), Blackbaud may terminate the license in respect of that Permitted User. Where Blackbaud terminates, has terminated and/or has the right to terminate, the licence in respect of five or more Permitted Users, Blackbaud may terminate the licences in respect of the Licensee and of every Permitted User; provided, however, that before exercising this right of termination, Blackbaud agrees to engage in good faith discussions with Licensee to determine whether an alternative resolution can be reached. In the event of termination, all the Sections of the license will survive except the license granted in Section 1.
11. SOFTWARE MODIFICATIONS
Licensee may only make modifications to the Software through the use of Blackbaud’s Software Development Kit (“SDK”) licensed for use with the Software. Blackbaud will not be liable, in any respect, for any such modifications or any errors or damages resulting from such modifications. Any other modifications that Licensee makes to the Software will void any warranty obligations contained in this Agreement.
Blackbaud shall have the right to audit Licensee’s use of the Software and compliance with the terms of this Agreement at Licensee’s premises from time to time in accordance with this Section. Licensee agrees to permit Blackbaud to have access to its facilities and personnel on reasonable prior notice during the Licensee’s normal business hours for the purpose of conducting such audits. In the event such audit reveals Licensee is exceeding the scope of use permitted by this Agreement other than to a trivial extent, then Licensee shall pay Blackbaud’s additional fees for such use (at the then-current list price) and reimburse Blackbaud for the costs of the audit. In addition, Licensee shall use its reasonable efforts to facilitate audits for the same purpose at the premises of Permitted Users.
13. PERMITTED USERS
Schedule 1 includes a list of potential Permitted Users as of the Effective Date, although such list may be updated from time to time. Once the requirements of this Section 13 have been fulfilled in respect of the relevant potential Permitted User, Licensee is permitted to grant access to and use of the Software to such Permitted User for the purposes set out in this Agreement, on the terms set out in Schedule 2 (“the Sub-licence Terms”). The Sub-licence Terms shall be made binding upon each Permitted User through the Licensee ensuring that authorised signatories of the Licensee and the relevant Permitted User sign a complete and accurate copy of the Sub-licence Terms. Within 14 days of such signing taking place, the Licensee will provide to Blackbaud a complete and accurate copy of the signed Sub-licence Terms. The Sub-licence Terms shall permit Blackbaud, as a party on whom benefit is conferred, to take action directly against the Permitted User in respect of any breach by the Permitted User. Licensee itself will use all reasonable efforts to enforce the terms imposed on Permitted Users, including taking reasonable steps (such as the sending of written letters detailing breaches and requiring their remedy) at Blackbaud’s request, but shall have no further liability in respect of the acts and omissions of Permitted Users. No further, amended or alternative terms may be agreed (in writing or otherwise) between the Licensee and any Permitted User in respect of the Software without in each case the prior written consent of the office of the General Counsel of Blackbaud. The parties agree that those provisions of this Agreement which are expressed to confer a benefit on Permitted Users shall be enforceable directly by each Permitted User, in addition to being enforceable by the Licensee on behalf of Permitted Users. However, Permitted Users shall not be required to give consent to any variation of this Agreement. Except as set out above and in Schedule 2 the provisions of the Contracts (Rights of Third Parties) Act shall not apply to confer any benefit on any person who is not a party to this Agreement. Where the Licensee fails to procure the signing of the Sub-licence Terms by a Permitted User as required by this Section 13 and the Licensee provides such Permitted User with access to or a copy of the Software (or any part of it), then (i) the Licensee shall be deemed in breach of this Agreement, (ii) the Licensee shall use all reasonable efforts to procure compliance by the relevant Permitted User with the Sub-licence Terms (notwithstanding the lack of signature), and (iii) the Licensee shall cease to provide further access to the Software to such Permitted User until such signature is obtained.
14. SOURCE CODE ESCROW
Blackbaud deposits all Software program source codes, interface software, documentation, descriptions of the Software (“Source Code”) and all training materials necessary to run and maintain the system in full production mode for Licensee with DSI Technology Escrow Services, Inc. (DSI), and Blackbaud shall maintain such escrow, and update the escrow deposits with current versions of the aforementioned Software as soon as they are released
throughout the terms hereof in accordance with the terms of the Master Preferred Escrow Agreement – Master Number 9261, by and between Blackbaud and with DSI dated September 2, 2002 (“DSI Escrow Agreement”). Licensee shall be added as a Preferred Beneficiary (as defined in the DSI Escrow Agreement) immediately upon request. Notwithstanding any other terms to the contrary within this Agreement, in the event of a release of the Source Code to Licensee under this Agreement, Licensee shall have the right to use the Source Code internally to support and maintain the Software for Licensee’s and Permitted Users’ use as authorized in this Agreement. Licensee agrees that the Source Code delivered under this Agreement is subject to the confidentiality restrictions recited elsewhere in this Agreement. The fee to become a Preferred Beneficiary under the DSI Escrow Agreement is currently $650 per year and is the obligation of the Licensee.
15. MISCELLANEOUS
This Agreement and the ATP together set forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby. (In the event Licensee wishes to obtain technical support, updates to the Software, or other services, Licensee and Blackbaud will enter into a separate agreement for maintenance services and/or professional services.) If any court of competent jurisdiction declares any term of this Agreement void or unenforceable, that declaration shall have no effect on the remaining terms hereof. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of this Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. Neither party shall be liable for any delay, nonperformance or related damages if such delay or nonperformance was due to causes beyond its reasonable control, including, but not limited to acts of God, civil emergencies, electrical power failure, loss of communications, or the delay of the other party or third parties.
16. GOVERNING LAW AND FORUM
This agreement shall be governed by, and construed and enforced in accordance with, the laws of England and Wales. The parties submit to the exclusive jurisdiction of the English courts, save that Blackbaud shall be entitled to commence proceedings of whatever nature to protect its intellectual property rights and confidential information in any jurisdiction which will accept suit.
BLACKBAUD LICENSEE
By: _________________________________ By: ____________________________ Printed Name: ________________________ Printed Name: ____________________ Title: _______________________________ Title: ___________________________
SCHEDULE 2
Software: Blackbaud Enterprise CRM and Blackbaud NetCommunity
Authorised Computing Environments (applicable to all Software): Licensee and all Permitted Users (collectively, in the aggregate) may use the Software in only 1 Development Environment, 1 Staging Environment, and 1 Production Environment (as each is defined below).
“Development Environment” means a computer system used by Licensee solely for the purpose of creating new developments or modifications to the Software. The Development Environment does not simulate, utilise or affect the Production Environment.
“Staging Environment” means a computer system used by Licensee solely for the purpose of testing the functionality of new developments, modifications, new versions, updates, or enhancements to the Software. The Staging Environment simulates but does not actually utilise or affect the Production Environment.
“Production Environment” means a computer system and network used by Licensee which involves actual/real data and Licensee’s live operations.
Limitations applicable to Blackbaud Enterprise CRM and Blackbaud Direct Marketing (not applicable to Blackbaud NetCommunity):
Concurrent User Limit: 350.
Limitation applicable to Blackbaud Net Community e-mail functionality (not applicable to Blackbaud Enterprise CRM and Blackbaud Direct Marketing):
Annual E-Mail Limit: 500,000 per Contract Year. For purposes of this Agreement, a “Contract Year” is a period of twelve (12) months commencing on the Effective Date or an annual anniversary of the Effective Date.
Potential Permitted Users (if Licensee elects to include them and they comply with Section 13 of the Agreement), as of the Effective Date:
List of all Colleges and Halls of the University: All Souls College
Balliol College Blackfriars Brasenose College Campion Hall Christ Church
Corpus Christi College Exeter College
Green-Templeton College (Green & Templeton currently undergoing merger to create)
Harris Manchester College Hertford College
Jesus College Keble College Kellogg College
Lady Margaret Hall Linacre College Lincoln College Magdalen College Mansfield College Merton College New College Nuffield College Oriel College Pembroke College Regent's Park College Somerville College St Anne's College St Antony's College St Benet's Hall St Catherine's College St Cross College St Edmund Hall St Hilda's College St Hugh's College St John's College St Peter's College St Stephen's House The Queen's College Trinity College University College Wadham College Wolfson College Worcester College Recognised Independent Centres
The Oxford Centre for Buddhist Studies The Oxford Institute for Energy Studies
The Oxford Centre for Hebrew and Jewish Studies The Oxford Centre for Hindu Studies
