License Agreement

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PRECENDENCE

(a) Agreement Subject to MSA : Licensee acknowledges that this Agreement incorporates by reference the terms and conditions of the MSA and any Order Forms entered into by the parties, as if fully set forth herein.

(b) Order of Precedence: In the event of any inconsistency or ambiguity between the terms and conditions of this Agreement and the matters set forth in the MSA and/or an Order Form, the inconsistency or ambiguity shall be resolved according to the following order of precedence: (1) the most recent Order Form; (2) this Agreement; (3) the MSA.

DEFINITIONS

  1. “Affiliate” means any entity that 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.
  2. “Customer” means the person or entity accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
  3. “Order Form” means an ordering document or online order specifying the Software to be provided hereunder that is entered into between the Parties, including any addenda and supplements thereto. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
  4. “Software” means the fusionCore software product, including any Updates provided to Licensee pursuant to this Agreement.
  5. “Third-Party Products” means any third-party products provided with or incorporated into the Software, including any open source software.
  6.  “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor has made available to Licensee.
  7. “User” means an employee or contractor of Licensee who Licensee permits to access and use the Software pursuant to Licensee’s license hereunder.
  8. Any capitalized term used herein and not defined herein shall have the meaning assigned to it in the MSA.

LICENSE

(a) License Grant: Subject to and conditioned on (i) Licensee’s payment of Fees for each seat or user, (ii) the terms outlined in Fees and Taxes, and (iii) compliance with all other terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Software solely for Licensee’s internal business purposes. Except as provided otherwise in Fees and Taxes, the license is a single-organization license. This license may require Salesforce licenses that are separate from this Agreement,

(b) Use Restrictions: Licensee shall not use the Software for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software outside of the organization for which it was intended; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Licensor or any person, or that violates any applicable law.

(c) Reservation of Rights: Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.

(d) Customization: Any extensions or customizations to accommodate Licensee specific business processes accomplished outside of product configuration are not covered under the annual license costs. Troubleshooting and fixes for these issues are billed on a time and material basis.

LICENSOR RESPONSIBILITIES

(a) Delivery: Licensor shall make the Software available to Licensee by deploying the Software in a cloud instance of Salesforce and notifying Licensee of its availability.

(b) Support: Product support and Updates available generally to licensees of fusionCore, as more fully detailed below,  will be provided to Licensee as long as this license is in effect and license fees are not arrears. Licensor’s  Service Level Agreement, as it may be updated from time to time, is available here.

LICENSEE RESPONSIBILITIES

(a) General: Licensee is responsible and liable for all uses of the Software resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Software, and shall cause Users to comply with such provisions. Licensee shall ensure that at all times during the Term of this Agreement it has: (1)  maintained and paid for one user license for each employee or contractor of Licensee with access to the Software; and (2) maintained and paid for one user license with salesforce.com for each User.

(b) Third-Party Products: Licensor may distribute certain Third-Party Products with the Software. For purposes of this Agreement, such Third-Party Products are subject to their own license terms. Licensee understands and acknowledges that such open source software is not licensed to Licensee pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license.

(c) Licensee Responsible for Third Party Products Fees: Except as explicitly provided in Fees and Taxes, licensing fees for Third Party Products are the sole responsibility of Licensee. Without limiting the foregoing, Licensee shall be solely responsible for any and all Salesforce license fees relating to or integrated into the Software for the Licensee.

(d) Data Security and Loss: Licensee’s data will not be hosted by or accessible to Licensor (unless such access is provided under a separate managed services agreement),  and as such Licensor shall have no responsibility whatsoever for the safety and security of Licensee’s data. Under no circumstances will Licensor be responsible for loss, damage, corruption, breach, or restoration of the data of Licensee. Licensee shall take due care to create any needed backups of any configuration settings, user data or dynamic data  to protect against the event of failure. In the event that the parties have entered into a separate managed services agreement, that agreement shall control as to the parties’ access to data and  data security.

(e) Compliance with Laws: Licensee shall comply with all applicable laws, regulations, and governmental requirements  of the U.S and any other jurisdiction relevant to its use of the Software.

(f) If the Licensee is a nonprofit organization or charity and uses the Software for fundraising purposes, the Licensee must maintain full and ongoing compliance with California’s Supervision of Trustees and Fundraisers for Charitable Purposes Act (AB 488).

SUPPORT AND CUSTOMIZATION

(a) Support Terms: So long as Licensee is operating on the then-current version of the Software, Licensee may seek limited support in connection with its use of the Software, as provided herein. Except as expressly provided, this Agreement does not entitle Licensee to any customization of the Software. Any customization shall be covered under a separate agreement between the Parties or shall be expressly provided for in Fees and Taxes.

(b) Maintenance of Software: fusionSpan will support the current version of the fusionCore software and shall make available as needed. The Product team regularly makes patches available to customers to resolve Severity 1 and Severity 2 product defects for the current major release. Defects categorized as Severity 3 and Severity 4 are generally remedied in the following major release, not in the intermittent patches between major releases. If a defect is found in the current major version, a patch may be released the current major version, and future major versions going forward. fusionSpan does not backport patches for bugs in previous releases.

All communicated resolution timelines and release commitments are subject to change based on scheduling, release capacity, and other standard software development practices. Release timings are subject to change at fusionSpan’s discretion. fusionSpan fusionCore Support and Product teams will use commercially reasonable efforts to ensure the Software is functioning in accordance with the relevant specifications or product documentation.

(c) Support Exclusions: Licensor will not provide support for  Licensee’s staff or end-users; administration of the system and associated operational tasks; maintenance and management of data in the system; maintenance or enhancements for custom development; provision of system upgrades and testing of Licensee functionality; implementation and configuration of  new features made available in new product releases; assignment of licenses to Users. These services are available through a separate Managed Services Agreement.

(d) Support Portal: Licensee may email or access the support portal at the following link: https://itsupport.fusionspan.com/ to request assistance with any issues, and Licensor shall provide assistance with any issues that are within the scope of its support obligations as described in this Agreement. Licensee may  track the progress on support issues using Licensor’s support portal.

(e) Managed and Unmanaged Package Upgrades: The fusionCore license includes upgrades to all managed package components as part of the license fee. fusionCore also includes certain unmanaged package components (including but not limited to Financial Documents, Portal Components, Committees, Reports, and Layouts). Upgrades to unmanaged components are included in the license fee only where those components have not been directly modified. Where unmanaged components have been customized, fusionSpan recommends customizations be made by cloning the original component rather than modifying it directly. Clients who follow this approach will continue to receive upgrades to the original unmanaged component as part of their annual license. However, where a cloned component exists, applying new features or bug fixes from an upgrade to the cloned version will require a separate assessment, update, and testing engagement to ensure customizations are preserved and functioning as expected. Where direct modifications have been made to the original component, an assessment will also be required prior to applying any upgrade. In both cases, this work will be scoped and quoted separately.

FEES AND TAXES

(a) Fees: Licensee shall pay Licensor the annual license fees as set forth in the Order Form without offset or deduction, and fees for Renewal Terms may reflect a percent increase for every Renewal Term. In addition, fusionCore may include a license fee structure allowing for a financial transaction fee for each transaction processed and / or a payment gateway fee from the payment gateway provider. The annual license fees together with any transaction or payment gateway fees, shall be referred to as the “Fees.” Licensee shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. All Fees are to be paid in advance  at the beginning of each applicable license year, with the exception of any financial transaction fee for each transaction processed which shall be paid by Licensee to Licensor as set forth in the Order Form. fusionSpan reserves the right to charge interest penalties on invoiced amounts that remain outstanding after the due date of the invoice.

The annual fee will increase on each and any annual anniversary of the Effective Date of your Agreement by 3% over the previous year. Invoices will be delivered at the beginning of each month and are due on a Net-30-day basis.

(b) Additional Users: For the avoidance of doubt, this Agreement does not grant Licensee any rights to access or use the Salesforce platform itself, which requires a valid Salesforce license obtained directly from SalesForce. Licensee agrees to procure additional User licenses when adding new users to their account with salesforce.org.  fusionSpan reserves  the right to periodically audit the Salesforce instance and bill the Licensee for any unpaid or unlicensed fusionCore Users retroactively.

(b) Taxes: All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income. Maryland state tax of 3% is payable on software licenses and subscriptions, and shall be added to each invoice.

(c) Exemption from Taxes: In the event that Licensee is exempt from any tax, Licensee shall provide all necessary certificates of tax exemption issued by the competent authority and shall furnish (and cause any Affiliates to furnish) the certificates to Licensor. Licensee shall bear the responsibility of maintaining such tax exemption(s) and providing Licensor with any and all needed information in the event of any change of tax-exempt status in any relevant jurisdiction.

OWNERSHIP OF INTELLECTUAL PROPERTY

(a) Acknowledgement: Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights in and to the Software and, with respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights in and to the Third-Party Products.

(b) Feedback: If Licensee or any of its employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback for any purpose whatsoever, although Licensor is not required to use any Feedback.

LIMITED WARRANTIES AND WARRANTY DISCLAIMER

(a) Licensor warrants that: (i) the Software will perform materially as described during the Term; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the expectation of the parties. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(b) The warranties set forth above in Subsection (a) of this Section do not apply and become null and void if Licensee breaches any material provision of this Agreement, or if Licensee, or User, or any other person provided access to the Software by Licensee, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not expressly authorized by Licensor in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in this Agreement or expressly authorized by Licensor in writing.

(c) If, during the Term, the Software fails to materially comply with the warranty in Subsection (a) of this Section, and such failure is not excluded from warranty pursuant to Subsection (b) of this Section, Licensor shall, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or (ii) refund, on a pro rata basis, the Fees paid for the remaining portion of the Term, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. The remedies set forth in this Subsection (c) of this Section are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Subsection (a) of this Section.

(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SUBSECTION (a) OF THIS SECTION, EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

TERM AND TERMINATION

(a) Except as expressly provided, the initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until one year from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 45 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Payment of Fees for Renewal Terms shall be made prior to the commencement of such Renewal Term, and such Fees for Renewal Terms may reflect a percent increase for every Renewal Term as specified in Fees and Taxes.

(b) Termination: In addition to any other express termination right set forth in this Agreement

(i) Licensor may terminate this Agreement, effective on written notice to Licensee if Licensee: (A) fails to pay any amount when due hereunder; or (B) breaches any of its obligations under this Agreement; or

(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.

(c) Effect of Expiration or Termination: Upon expiration or termination of this Agreement, the license granted hereunder will also terminate, and Licensor shall disable the Software and make it unavailable to Licensee. Upon expiration or termination, Licensee shall cease using and delete, destroy, or return all copies of the Software and certify in writing to the Licensor that the Software has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination; provided, however, that if this Agreement is rightfully terminated by Licensee due to Licensor’s material breach of this Agreement, then Licensee shall be entitled to a refund, on a pro rata basis, for that portion of the Term for which Licensee has paid the Fees and for which it will not have access to the Software.

ASSIGNMENT

Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor. Licensor may assign this Agreement as part of a sale of substantially all of the assets or stock of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

SURVIVAL

All Sections of this Agreement, which by their nature are intended to survive expiration or termination of this Agreement shall so survive, including without limitation, Ownership of Intellectual Property; Indemnification and Limitation of Liability; Fees and Taxes; Confidentiality.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.