Software as a Service Agreement
This Software as a Service Agreement (“SaaS Agreement”) is between The Maryland Food Bank, Inc., a Maryland corporation (“Provider”) and the Subscriber identified on the Order Form that incorporates this SaaS Agreement by reference. All capitalized terms used but not defined in this SaaS Agreement have the meanings stated in the Order Form. Subject to the terms of this Agreement, Provider wishes to provide the Service, and Subscriber wishes to subscribe to the Service.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Subscription
1.1 Subject to the terms of this Agreement, Provider grants to Subscriber the nonexclusive, non-assignable, non-transferrable, worldwide, limited right to access and use the Platform(as it may exist, be modified, andprovide various information, products and functionality from time to time)to create and operate an Organizer Site in connection with Subscriber’s operation of fundraisers and food drives. Subscriber shall cause all its Representatives to be bound by the terms of this Agreement.
1.2. Provider shall provide the Service to Subscriber in accordance with this Agreement. Subscriber acknowledges that the Service is provided over the Internet and that Provider has no obligation to physically deliver any software for the Platform, transfer digital copies of such software to Subscriber, or otherwise grant Subscriber access to the object code or source code of any such software.
2. Fees
Subscriber shall pay all fees for the Service in accordance with the Order Form, as may be modified as described in the Order Form. All amounts invoiced by Provider under this Agreement via the Payment Processor or otherwise, are due no later than thirty (30) days after the date of the invoice. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable.Except for taxes based on Provider’s income, Subscriber shall pay any sales, value-added, or similar taxes imposed by law that Provider must pay because of the Service.
3. Audit
Provider may, no more than twice per year, audit Subscriber’s use of the Service. Subscriber shall cooperate with Provider’s audit and provide reasonable assistance and access to information. Provider shall not unreasonably interfere with Subscriber’s normal business operations when conducting an audit. Subscriber shall pay, no later than thirty (30) days after receiving written notification from Provider, any fees applicable to Subscriber’s use of the Service in excess of Subscriber’s rights under this Agreement. Provider is not responsible for any costs incurred by Subscriber in cooperating with any audit conducted in accordance with this section. Notwithstanding anything else in this section, if as a result of any audit, Provider reasonably determines Subscriber has breached this Agreement, Provider may conduct a reasonable number of additional audits in excess of two (2) per year.
4. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
5. Indemnification
5.1 Provider shall, subject to the section headed “Exclusion of Liability,” indemnify and defend Subscriber and its Representatives against any losses and any liabilities, including reasonable attorneys’ fees, incurred in connection with demands, claims, or proceedings (“Claims”) made against Subscriber by a third party alleging that the Platform infringes the third party’s patent rights, except for those claims of infringement based in whole or in part on content or technology provided by Subscriber.
5.2 Subscriber shall indemnify and defend Provider and its Representatives against any losses and any liabilities, including reasonable attorneys’ fees, incurred in connection with Claims made against Provider by a third party arising out of any text, image, graphics, audio, trademarkable matter, copyrightable work, or other data or content provided by Subscriber (collectively, “Subscriber Content”) or Subscriber’s operation of fundraisers and food drives.
5.3 Any indemnification or defense obligation stated in this Agreement is subject to the following conditions: (a) the indemnified party shall promptly notify the indemnifying party in writing upon learning of any Claim for which indemnification is sought; (b) the indemnified party shall promptly deliver to the indemnifying party, all documents and information reasonably beneficial to indemnify or defend against the Claim; (c) the indemnified party shall reasonably cooperate with the defense of the Claim, at the indemnifying party’s expense; and (d) the indemnifying party will control the defense or settlement of the Claim, except that the indemnified party may participate in such defense or settlement at its sole expense with counsel selected by the indemnified party.
5.4 If the indemnified party fails to notify the indemnifying party of a Claim within a reasonable amount of time, then the indemnifying party will be relieved of its obligations under this section headed “Indemnification” with respect to such Claim.
6. Exclusion of Liability
6.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS REPRESENTATIVES WILL HAVE NO LIABILITY TO SUBSCRIBER FOR ANY DAMAGES OF ANY KIND, INCLUDING DIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, THAT ARISE, IN WHOLE OR IN PART, OUT OF: (A) SUBSCRIBER’S NEGLIGENCE OR WILLFUL MISCONDUCT; (B) SUBSCRIBER’S BREACH OF THIS AGREEMENT, (C) INTELLECTUAL PROPERTY INFRINGEMENT BASED ON CONTENT OR TECHNOLOGY NOT PROVIDED BY PROVIDER, INCLUDING ANY SUBSCRIBER CONTENT; (D) A THIRD PARTY’S USE OF THE PLATFORM; (E) THE CONDUCT OF ANY PAYMENT PROCESSOR; OR (F) ANY CAUSE OUTSIDE OF PROVIDER’S REASONABLE CONTROL.
7. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, A PARTY OR ITS REPRESENTATIVE’S AGGREGATE LIABILITY TO THE OTHER PARTY RELATED TO THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY SUBSCRIBER TO PROVIDER DURING THE TWELVE MONTHS BEFORE THE DATE ON WHICH A CLAIM FOR SUCH LIABILITY AROSE.
8. Terms of Use and Privacy Policy.
Subscriber shall comply and shall cause all of its Representatives to comply with the Terms of Use and Privacy Policy when accessing and using the Platform. Subscriber acknowledges that Provider may, at Provider’s discretion, change the Terms of Use and Privacy Policy from time to time during this Agreement, and Subscriber will be bound by any such changes.
9. Intellectual Property.
The rights and obligations of the parties regarding any copyright, moral right, trademark, service mark, trade dress, certification mark, patent, trade secret, right of publicity, or right against unfair competition (collectively, “Intellectual Property”) are governed by Terms of Use.
10. Confidentiality
10.1 “Confidential Information” means any information that: (a) is disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement and is (i) of a financial nature, (ii) of a technical nature and related to the Platform, Host Systems, or Service, or (iii) indicated in writing as confidential at the time of disclosure or within ten (10) days thereafter; and (b) is not (i) generally known to the public, (ii) information that has been lawfully provided to Recipient on a non-confidential basis from a source that lawfully obtained the information, or (iii) information that can be demonstrated by Recipient’s written records to have been lawfully and independently developed or acquired by Recipient before the Effective Date.
10.2 Recipient shall not, at any time, directly or indirectly disclose any Confidential Information to any third party, unless authorized in advance by Discloser in writing. Recipient shall not, at any time, directly or indirectly disclose any Confidential Information to any Representative, except those Representatives of Recipient who are (a) reasonably required to know such Confidential Information to access and use the Platform in accordance with this Agreement and (b) under nondisclosure obligations with respect to such Confidential Information that are at least as restrictive as the nondisclosure obligations of this Agreement. Recipient shall take reasonable precautions to prevent the unauthorized disclosure of Confidential Information. Recipient shall use the level of care to prevent the unauthorized disclosure of Discloser’s Confidential Information that Recipient exercises in preventing the unauthorized disclosure of Recipient’s own Confidential Information, but in no event may Recipient’s level of care be unreasonable.
11. Term and Termination
11.1 The term of this Agreement is stated on the Order Form. Except as expressly stated in this Agreement, all of Subscriber’s rights to access and use the Platform end upon termination of this Agreement. This Agreement will automatically renew for subsequent terms, unless Subscriber delivers written notice of non-renewal to Provider at least fifteen (15) days in advance of the expiration of the current term.
11.2 Subscriber may terminate this Agreement at any time by providing written notice of termination to Provider. If Subscriber terminates this Agreement before the expiration of the current term for any reason other than Provider’s material breach, then Subscriber will be immediately responsible for the full fees for the then current term and any renewal terms.
11.3 If either party breaches a material term of this Agreement and fails to correct the breach within five (5) days after receipt of written notice of the material breach, then the non-breaching party may terminate this Agreement immediately.Subscriber’s failure to pay any fees or other amounts as of the due date is deemed a breachof a material term of this Agreement.
11.4 For sixty (60) days after termination of this Agreement, if Subscriber requests in writing, then Provider shall permit Subscriber to access the Platform solely to the extent reasonably required to retrieve any Subscriber Content that is stored on the Host Systems. Subscriber acknowledges that, after sixty (60) days following termination of this Agreement, Provider has no obligation to retainSubscriber Content and Provider may irretrievably delete Subscriber Content.
12. Survival.
The rights and obligations in the sections having the following headings survive termination of this Agreement: “Intellectual Property,” “Exclusion of Liability,” “Limitation of Liability,” “Indemnification,” and “Confidentiality,” and “Termination.”
13. Order of Precedence.
Any inconsistency or ambiguity among the documents making up this Agreement must be resolved by giving precedence to the documents in the following order: (a) Order Form, (b) SaaS Agreement, (c) Terms of Use, and (d) Privacy Policy.
14. Amendment.
Any amendment to the SaaS Agreement or the Order Form shall be in effect thirty (30) days after Provider gives to Subscriber written notice of the amendment.
15. Assignment.
No party may assign this Agreement without the prior written consent of the other party, and the other party shall not unreasonably withhold such consent.
16. Choice of Law and Jurisdiction.
This Agreement is governed by the laws of the State of Maryland without regard to its conflict of law provisions. Any disputes related to this Agreement must brought in the appropriate court located in Baltimore, Maryland, and the parties consent to the exclusive jurisdiction of the state and federal courts sitting in Baltimore, Maryland. The Uniform Computer Information Transactions Act does not apply to this Agreement.
17. Construction.
For the purposes of this Agreement, the following terms have the following definitions: (a) “including” means “including, without limitation;” (b) “such as” means for example; (c) “and/or” means any combination or sub-combination of a set of stated possibilities, for example, “A, B, and/or C,” means any of: “A,” “B,” “C,” “AB,” “AC,” or “ABC;” (d) a “section” is any numbered paragraph of this Agreement; and (e) “days” means calendar days.
18. Counterparts.
This Agreement may be executed in counterparts, including counterparts delivered by facsimile or other electronic means, which taken together will form one legal instrument.
19. Entire Agreement.
This Agreement constitutes the complete agreement between the parties related to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements or representations, whether written or oral, regarding the subject matter of this Agreement.
20. Independent Contractor.
Each party is an independent contractor. This Agreement does not create a partnership, joint venture, or agency relationship between the parties.
21. Notice.
All notices under this Agreement must be in writing, and delivered personally, by email, or by nationally recognized overnight courier at the respective address of each party stated on the Order Form. All notices will be deemed effective upon personal delivery, or when received if sent by overnight courier, or when sent if sent by email to the email address set forth in the Order Form or an email address which has been updated in writing and the receipt of the updated address has been verified bythe intended recipient of the update.
22. Severability.
If any term of this Agreement is found to be invalid or unenforceable, then the remaining terms will remain effective, and any such invalid or unenforceable term will be replaced with a term consistent with the intent of this Agreement.
23. Waiver.
If Provider fails to enforce any of its rights under this Agreement or otherwise, such failure does not result in a waiver of such right.
This agreement was last modified on July 11, 2022.