AutomateGenius Terms and Conditions
Subject to the terms and conditions of this Agreement, Customer has a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, limited, revocable right to access and use the services provided by PSG.
2. Fee and Payment Terms.
Customer agrees to pay PSG fees in the amounts and on the terms described in this Quote (“Fees”). Unless otherwise agreed by the Parties in writing, all Fees are due and payable within thirty (30) days of the date of invoice. All Fees are exclusive of any customs, tariffs, duties, sales, use GST or value-added taxes, or similar governmental charges. Customer shall pay all such customs, tariffs, duties, sales, use GST or value-added taxes, or similar governmental charges. Initial set-up fees are not refundable.
All terms stated in this contract, including but not limited to costs, are to remain confidential between the Customer and PSG. The Parties shall not disclose Confidential Information during the Term or at any time following the end of the Term, without the prior written consent of the other party. As used in this Agreement, “Confidential Information” means all nonpublic information disclosed by PSG, PSG’s business partners, or the Customer, the Customer’s business partners, or either Party’s respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Each party acknowledges that any unauthorized use or disclosure of the Information may cause irreparable damage to the other party. If an unauthorized use or disclosure occurs, such party will take, at its expense, all steps which are necessary to recover the other party’s Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party’s expense. Information published or available in the public domain is not confidential.
4. Restriction on hiring PSG employees
Unless mutually agreed upon otherwise, the Customer agrees not to solicit for employment any individual who is employed by PSG during the term of this contract for a period of two years following the completion of PSG’s service.
The failure by either party to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect PSG’s right to enforce such provision thereafter. All waivers by PSG must be in writing to be effective.
6. Software required
Customer is required to have Raiser’s Edge NXT software and two Microsoft Power Automate licenses, one of which Customer will designate for use by PSG. While rare, it’s possible that Customer may require an additional Microsoft Power Automate license or Zapier license in order to achieve the desired level of automation.
7. Intellectual property
Notwithstanding anything to the contrary herein or elsewhere, Customer acknowledges and agrees that, and will cause all Authorized Users to acknowledge and agree that: (i) PSG and its licensors and service providers are the owners of all right, title and interest in and to all PSG Property, and all copyrights, trade secrets, patents, trademarks and other intellectual property rights therein; (ii) PSG Property is protected by United States and international copyrights, patents, trademarks, service marks, trade secrets or other proprietary and intellectual property rights and laws, as applicable; and (iii) Customer and Authorized Users claim no proprietary rights in any PSG Property. Customer hereby irrevocably assigns to PSG, and Customer will cause all Authorized Users to irrevocably assign to PSG, all right, title and interest, including all intellectual property rights, in and to PSG Property. All pending and/or registered trademarks and service marks, and other graphics, logos, and trade names used by PSG in connection with the Platform, and any other products or services offered by PSG are the trademarks of PSG or its licensors or service providers. If Customer provides suggestions, comments, ideas or recommendations, requests for enhancements, additional features or functionality, or other feedback to PSG, (collectively “Feedback”) PSG owns all right, title, and interest in and to the Feedback and all intellectual property rights therein, and Customer hereby assigns all such right, title and interest therein to PSG. Customer will execute any documents PSG reasonably requests for use in obtaining or enforcing such rights and protections set forth in this section.
8. Customer data; customer representations and warranties
Any and all data, information, content, material or works of authorship that Customer or any Authorized User submits, transmits or makes available to PSG, or submits or enters into the Platform, is “Customer Data.” Customer Data also includes all data, information, content, material or works of authorship retrieved, collected or received by PSG from third parties in connection with Customer’s use of the this service. For example, and not in limitation of the foregoing, the data retrieved, collected or received by PSG from Blackbaud is Customer Data. Customer hereby grants to PSG the right and license to use, disclose, host, reproduce, copy, distribute, display and publish Customer Data in any and all ways necessary to provide services described on the Order Form. PSG shall never print, publish, sell, distribute, or share names, addresses, giving history or other identifiable information provided by the Customer to PSG. Customer represents and warrants to PSG that: (i) Customer and Authorized Users have, and will maintain at all times, all legal rights necessary to grant the rights and licenses to PSG set forth in this Agreement and to make Customer Data available to PSG for use and distribution permitted in this Agreement; (ii) Customer Data, and PSG’s use and distribution thereof, does not, and will not, violate or infringe upon any copyright, patent, trade secret, trademark, or other intellectual property right, or any proprietary, personal, privacy, or other right worldwide of any other person or entity; (iii) Customer Data was, and will be, collected, created and distributed in compliance with all federal, state, local, or foreign laws, rules, regulations, statutes, ordinances or directives (“Laws”); (iv) all content of Customer Data, and PSG’s use and distribution thereof, does not, and will not, violate any Law; (v) Customer Data does not, and will not, knowingly contain any viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (vi) Customer Data is not subject to any “open source license” or “copyleft license”, as those terms are generally understood in the software industry; and (vii) Customer Data will not include any personal information from or about children under the age of 13.
Customer agrees to indemnify, defend and hold PSG and its respective affiliates, distributors, resellers, licensors, service providers, contractors, customers, members, managers, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, cases of action, demands, proceedings, litigation, investigations, subpoenas, damages, settlements, costs, liabilities, losses, fines, fees, awards, penalties, and expenses of any nature whatsoever (including, but not limited to, reasonable legal fees) (collectively, “Losses”) arising out of, based upon, relating to or resulting from: (i) the use or access of, or reliance on, PSG Property, or any part thereof, by Customer or any Authorized User or other third party whose access to or reliance on such PSG Property is made available, directly or indirectly, by, through or because of Customer; (ii) Customer Data or PSG’s or Customer’s disclosure, use, receipt, retrieval or collection thereof; (iii) any negligent or willful act or omission by Customer or any Authorized User; (iv) any actual or alleged breach of any representation, warranty, covenant or obligation in this Agreement by Customer or any Authorized User; or (v) use of the Platform by Customer or any Authorized User. PSG agrees to indemnify, save and hold harmless the Customer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party as a result of the actions taken by the Customer under this Contract.
10. Force majeure
In no event will PSG be liable to Customer or any Authorized User, or be deemed to have breached this Agreement or any other agreement between the Parties, for any failure or delay in performing its obligations under this Agreement or such other agreement, if and to the extent such failure or delay is caused by any circumstances beyond PSG’s reasonable control, including but not limited to failures of the internet, computer systems or communications networks, pandemics, epidemics, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
11. Governing law; venue; waiver of jury trial
This Agreement is governed by and construed in accordance with the internal laws of the State of Nebraska without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Nebraska. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts in Omaha, Nebraska and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the foregoing, PSG may seek injunctive relief in any court of competent jurisdiction. Each Party hereby irrevocably waives its right to a trial by jury in connection with any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder.
12. Entire agreement; severability; successors and assigns; other
This Agreement, together with any other documents incorporated herein by reference and all agreements between the Parties regarding payment of Fees by Customer, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, and will bind and inure to the benefit of the Parties and their successors and permitted assigns. Customer may not assign, delegate or otherwise transfer this Agreement or any rights or obligations hereunder. Any assignment in violation of this Agreement is void. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Except for indemnified parties hereunder, there are no third-party beneficiaries to this Agreement. PSG and Customer are independent contractors. Each Party’s rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses.
13. Cancellation, term; suspension of access.
Unless otherwise set forth in the applicable Order Form, the term of this Agreement shall commence upon the effective date of the applicable Order Form and continue for 1 year thereafter, unless and until earlier terminated in accordance with this Agreement. Unless otherwise set forth in the applicable Order Form, upon expiration of the initial 1 year term, this Agreement will automatically renew for additional successive 1-year terms, unless either Party provides the other Party written notice of its intent to not renew this Agreement at least 30 days prior to the end of the then-current term, and unless and until earlier terminated in accordance with this Agreement. Customers who have prepaid for services through the Agreement shall continue to receive services until the Customer’s next renewal date, at which point the service will be terminated. Upon PSG’s request or termination or expiration of this Agreement, Customer shall, and shall cause all Authorized Users to irretrievably and securely delete all PSG Property in its possession or control. If Customer is not required to pay Fees to access or use the Platform, PSG may suspend or terminate Customer’s and Authorized Users’ access to the Platform at any time with or without notice (and without liability). PSG may suspend access to the Platform at any time with or without notice (and without liability) if: (i) PSG reasonably believes that PSG Property is being used in violation of this Agreement; (ii) Customer does not cooperate with reasonable investigation by PSG of any suspected violation of this Agreement; (iii) PSG Property or Customer Data are accessed or manipulated by a third party without Customer consent; (iv) PSG is required by law, or a regulatory or government body to suspend access to PSG Property;(v) any undisputed invoiced amounts remain unpaid by Customer for more than three (3) calendar days past the due date; or (vi) there is another event for which PSG reasonably believes that the suspension of access to the Platform is necessary to protect the cloud environment in which Customer’s instance of the Platform is deployed.
14. Entire agreement
This agreement constitutes the entire agreement pertaining to this subject matter and supersedes any prior oral or written agreements pertaining to this subject matter.
This agreement may only be amended in writing and signed by both parties.
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
17. Authorized to enter this agreement
Customer and the individual signing this contract on behalf of Customer hereby state and verify that the signer is duly authorized by Customer to enter into and bind Customer to the terms stated herein. PSG and the individual signing this contract on behalf of PSG hereby state and verify that the signer is duly authorized by PSG to enter into and bind PSG to the terms stated herein.