CANADAHELPS DONOR MANAGEMENT SYSTEM SOFTWARE-AS-A-SERVICE AGREEMENT
(Last Updated: June 6, 2020)
This CanadaHelps Software-as-a-Service Agreement (“Agreement”) is a binding agreement between CANADAHELPS CANADON, a registered charity and public foundation governed by the laws of Canada, having its principal place of business at 186 Spadina Avenue, Units 1-5, Toronto, ON, M5T 3B2 (“CanadaHelps”) and the entity you represent (“you” or the “Client”). This Agreement governs your use of the Subscription Software (defined below). By registering for or using the Subscription Software, you agree to be bound by the terms of this Agreement.
The Subscription Software incorporates the open source software known as CiviCRM, which is subject to the GNU AFFERO GENERAL PUBLIC LICENSE, which has been modified by CanadaHelps prior to and after the “last updated” date above. Please contact us using the contact information set out above if you wish to exercise any rights under the aforementioned license.
“Subscription Software” means the CanadaHelps Donor Management System software application or applications provided on a software-as-a-service basis, and any third-party or other software that CanadaHelps provides remote access to, and use of, as part of the Subscription Software. Subject to Client’s payment of the applicable fees and compliance with all terms of this Agreement, CanadaHelps will permit Client to access and use the Subscription Software for the duration of time for which Client has paid in advance in accordance with this Agreement, solely for use by Client’s employees and agents authorized by it to access the Subscription Software (“Authorized Users”), only for Client’s internal business purposes and in all cases in accordance with this Agreement and any instructions provided by CanadaHelps from time to time. Client is responsible and liable for all uses of the Subscription Software resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Certain third-party products may be available with, or integrate with, the Subscription Software, in which case you may be required to enter into separate agreements with third party providers of such third-party products (eg. offline payment processors, email marketing services, etc.)
Prohibited Use of Subscription Software
Client will use the Subscription Software solely in accordance with Client’s officially published mandate. Client will not, and will not permit its Authorized Users to, access or use the Subscription Software except as expressly permitted by this Agreement. The following activities are expressly prohibited: (a) sending and relaying spam, impersonating another person or entity, falsely misrepresenting Client’s identity or Client’s affiliations; (b) any illegal or fraudulent purposes; (c) transmitting material that contains computer programs including but not limited to viruses, Trojan horses, worms, time bombs, and cancel bots, which are designed to disrupt, destroy, harm, or damage the operation of the Subscription Software or any computer; (d) attempting to gain unauthorized access to the Subscription Software or its related system or networks; (e) copying, modifying or creating derivative works or improvements of the Subscription Software; (f) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring or otherwise making available any Subscription Software to any person, except as expressly permitted by this Agreement; or (g) reverse engineering, disassembling, decompiling, decoding, adapting or otherwise attempting to derive or gain access to the source code of the Subscription Software, or any part thereof, unless permitted under this Agreement or at law.
CanadaHelps may suspend Client’s and its Authorized Users’ access to any portion of the Subscription Software if: (a) CanadaHelps reasonably determines that: (i) there is a threat or attack on the Subscription Software; (ii) Client’s or the Authorized Users’ use of the Subscription Software disrupts or poses a security risk to the Subscription Software or to any other customer or vendor of CanadaHelps; (iii) Client, or any of its Authorized Users, is using the Subscription Software for fraudulent or illegal activities or otherwise in a manner prohibited this Agreement; or (iv) CanadaHelps’ provision of the Subscription Software to Client or any Authorized User is prohibited by applicable law; (b) any vendor of CanadaHelps has suspended or terminated CanadaHelps’ access to or use of any third-party services or products required to enable Client to access the Subscription Software; or (c) Client breaches its obligation to pay CanadaHelps.
CanadaHelps will use commercially reasonable efforts to provide written notice of any such suspension to Client and to provide updates regarding resumption of access to the Subscription Software following any such suspension. CanadaHelps will use commercially reasonable efforts to resume providing access to the Subscription Software as soon as reasonably possible after the event giving rise to such suspension is cured. CanadaHelps is not liable for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or the Authorized Users may incur as a result of such suspension.
Third Party Services
Client is responsible, at Client’s sole expense, for obtaining, licensing and maintaining all equipment, software and telecommunications or other services which are necessary in order to use the Subscription Software.
Changes to Subscription Software
CanadaHelps reserves the right to change, modify or discontinue any or all of the Subscription Software and to suspend the Subscription Software for maintenance and testing purposes at any time and from time to time.
Client Profile and Client Content
Client is responsible for all use of the Subscription Software under Client’s login(s) and password(s) whether or not authorized by Client. Client will notify CanadaHelps immediately of any unauthorized use of Client’s login(s) or password(s).
CanadaHelps is a registered Canadian charity. In consideration for the provision of the Subscription Software to Client in accordance with this Agreement, Client will pay CanadaHelps the applicable fees set out on CanadaHelps’s website in accordance with any accompanying payment terms. CanadaHelps reserves the right from time to time to change the applicable fees, as well as to introduce new fees and charges. Such changes will not apply to the existing term but will come into effect upon contract renewal, at which time Client can renew or terminate.
All fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all taxes, duties and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on CanadaHelps’s income.
The Subscription Software does not, and CanadaHelps has no responsibility to, back up Client’s data. CanadaHelps has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of Client’s data in any circumstances. Client is responsible for downloading and backing up its data.
Client grants CanadaHelps a perpetual and irrevocable license to access, process, disclose and otherwise use Client’s data for its own internal business purposes, including to: (a) provide the Subscription Software; (b) improve the Subscription Software and develop new services; and (c) exercise its rights and perform its obligations under this Agreement. This license includes the right of CanadaHelps to provide the Client’s data to its service providers as CanadaHelps reasonably requires for the foregoing purposes.
CanadaHelps may monitor Client’s use of the Subscription Software and collect and compile data and information related to Client’s use of the Subscription Software (“Use Data”). As between CanadaHelps and Client, all right, title, and interest in Use Data, and all intellectual property rights therein, belong to and are retained solely by CanadaHelps. Client acknowledges that CanadaHelps may compile Use Data based on Client’s data. Client agrees that CanadaHelps may: (i) make Use Data publicly available in compliance with applicable law; and (ii) use Use Data to the extent and in the manner permitted under applicable law.
Where donations are made directly to Client, such as through the Subscription Software, such that Client issues the donor their tax receipt, Client will collect personal information from individuals on its own behalf as controller and CanadaHelps will process such personal information as a processor on Client’s behalf (as the terms “controller” and “processor” are defined under the EU General Data Protection Regulation – “GDPR”). All other donations made through CanadaHelps are made directly to CanadaHelps (who issues donors their tax receipts). CanadaHelps collects and processes the donor’s personal information submitted through the Subscription Software or our website. In this sense, CanadaHelps is a data controller in relation to the processing of such personal information.
Moreover, at the donor’s express request, CanadaHelps may also disclose personal information about its individual donors to the charities they support, including the Client. Under such circumstances, Client would be considered to be the data controller as regards to such disclosed donor personal information and will thereafter be entirely accountable for Client’s subsequent use and processing of such personal information.
Client (and CanadaHelps, in the limited circumstances where CanadaHelps acts as a data processor for Client, as the case may be) shall access, use, manage, process and retain personal information received from the other party or from donors only to fulfill the purposes for which it was made available to such party and will not be transferred, disclosed or accessed by any third party without the express written consent of the donor (or any other relevant individual), except as authorized by law.
Client (and CanadaHelps, in the limited circumstances where CanadaHelps acts as a data processor for Client, as the case may be) shall establish and maintain reasonable safeguards against the unauthorised access, disclosure, copying, use or modification, destruction, loss, theft, or alteration of donor personal information, including administrative, operational, organizational, technical and physical safeguards, designed to: (a) ensure the security and confidentiality of personal information that is processes pursuant to this Agreement; (b) protect against any anticipated threats or hazards to the security or integrity of such personal information; (c) protect against unauthorized or unlawful access, use, disclosure, alteration or processing of such personal information; (d) protect against accidental loss or destruction of, or damage to, such personal information; (e) provide adequate security measures for any transmission of such personal information; and (f) provide for the proper disposal or destruction of such personal information (“Security Safeguards”). In the event of a breach of any Client Security Safeguards that relates to the personal information of donors, Client will report such incident to CanadaHelps within no more than 12 hours of becoming aware of the incident. In the limited circumstances,
In the event CanadaHelps determines there has been of a loss of or unauthorized access to or disclosure of personal information under the control of the Client that Client has uploaded to the Subscription Software, CanadaHelps will promptly report such incident to the Client.
If you provide us with your logo, name or other trademark, we may display it in connection with providing the Subscription Software, including to identify you as a client of CanadaHelps. You hereby grant us all necessary rights to do so.
Except for the rights expressly granted under the Agreement, as between CanadaHelps and Client, CanadaHelps retains all right, title and interest, including all intellectual property rights, in and to the Subscription Software.
Representations and Warranties of Client
Client represents, warrants and covenants that: (a) Client is a charity registered either as a charitable organization, private foundation or public foundation or other qualified donee, as those terms are defined under section 149.1 of the Income Tax Act (Canada), as amended; (b) Client fully complies and will at all times continue to fully comply with all applicable laws, statutes and regulations, including, without limitation, the Income Tax Act (Canada), as amended, all other taxation, privacy laws and anti-spam legislation; and (c) Client has full power and authority to enter into this Agreement and the execution and performance of its obligations under this Agreement does not conflict with: (i) any laws, rules, regulations or governmental guidelines to which Client is subject; or (ii) any other agreements to which Client is a party or to which Client is otherwise bound.
Warranty Disclaimer, Indemnity and Limitation of Liability
In view of CanadaHelps’ non-profit, charitable status, and in consideration of CanadaHelps’ agreement to provide the Subscription Software to Client, Client acknowledges and agrees that: (a) in no event will CanadaHelps, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors be responsible for losses, damages or expenses of any kind whatsoever caused to Client or any third party relating to or arising in any manner under or in connection with this Agreement or the Subscription Software. Without limiting the generality of the foregoing, in no event will CanadaHelps, its licensors or suppliers be liable for damages for loss of profits (including donations), loss of data or information, business interruption or other pecuniary loss relating to or arising in any manner under or in connection with this Agreement or the use of the Subscription Software or the ability or inability to use the Subscription Software or the ability or inability of the Subscription Software to be used with any software, systems or equipment of Client or the failure by CanadaHelps to provide any or all of the Subscription Software in a timely or proper manner or at all. If the exclusion of liability set out above is held to be unenforceable or inapplicable for any reason, in no event will the total cumulative liability of CanadaHelps, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors in connection with this Agreement or the Subscription Software exceed the total sum of fees paid by Client to CanadaHelps in the six months preceding the date on which the applicable claim arose; (b) in no event will CanadaHelps, its affiliates, directors, officers, agents, employees, suppliers, subcontractors or licensors be liable to Client or any third party for any special, indirect, incidental, or consequential damages, even if CanadaHelps, its affiliates, directors, officers, agents, employees, licensors, subcontractors or suppliers have been advised of the possibility of such
damages; (c) the Subscription Software are provided to Client on an “as is” basis without representations, warranties or conditions of any kind. As between the parties, Client assumes responsibility for determining the suitability of the Subscription Software, for the use of the Subscription Software and for the results obtained. CanadaHelps disclaims all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility or that the Subscription Software is secure, error free or will operate without interruption or will be provided in a timely or proper manner or at all.
The foregoing limitations and disclaimers apply regardless of the causes or circumstances giving rise to the claim, even if such claim is based on negligence or any other tort, strict liability, breach of contract including, without limitation, breach of a fundamental term, product liability or infringement of any intellectual property right.
This Agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party will assign or transfer this Agreement or any of its rights under this Agreement, whether directly or indirectly, without first obtaining the prior written consent of the other party, such consent not to be unreasonably withheld, except that in the event CanadaHelps transfers its tax-exempt status as a registered charity to another corporation, CanadaHelps will be permitted to assign this Agreement to such transferee without prior written consent of Client. This Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Each of Client and CanadaHelps hereby irrevocably attorn to the jurisdiction of the Ontario courts in respect of any matter concerning this Agreement. This Agreement and the documents referred to or incorporated herein by reference contain the entire agreement between CanadaHelps and Client with respect to the subject matter thereof and supersede all prior agreements, negotiations and representations, written or oral, relating to its subject matter. This Agreement cannot be modified, varied, amended or supplemented in any way by Client. CanadaHelps reserves the right to modify, vary, amend or supplement this Agreement at any time and from time to time. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be severed from this Agreement and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the parties. Any waiver by CanadaHelps of any of the provisions of this Agreement will not constitute a waiver of any other provision hereof (whether similar or not), nor will any such waiver constitute a continuing waiver of that particular provision, unless expressly provided by CanadaHelps in writing. The parties hereto confirm that it is their wish that this Agreement, as well as all other documents relating hereto and all notices, have been and will be drawn up in the English language only.