EXHIBIT 10.10
PROFESSIONAL SERVICES AGREEMENT
This master Professional Services Agreement ("AGREEMENT") is made as of the
Effective Date specified at the end of this agreement by and between BLACKBAUD,
INC. ("BLACKBAUD") a South Carolina corporation having a principal place of
business at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx XX 00000 and <>
("CLIENT"), having a place of business at <>. Collectively
Blackbaud and Client shall be known as the "PARTIES".
The Parties agree as follows:
1. SERVICES PROVIDED BY BLACKBAUD. Blackbaud shall provide Client certain
services ("SERVICES") specified in a properly executed Scope of Work ("SOW") to
be incorporated herein and made a part hereof. Each SOW shall incorporate the
terms and provisions of this Agreement. To the extent an SOW provides additional
and/or conflicting terms to this Agreement, the terms of the SOW shall prevail.
All Blackbaud subcontractors under an SOW, if any, shall be bound to perform all
obligations under this Agreement as if they were being performed by Blackbaud.
2. CLIENT DUTIES. (a) Client shall perform such duties and tasks designated in
an SOW to facilitate Blackbaud's performance of the Services outlined thereunder
and provide Blackbaud with reasonable and necessary access to Client's
facilities during Client's normal business hours and otherwise as reasonably
requested by Blackbaud in order to facilitate Blackbaud's performance of the
Services outlined in each SOW. (b) Client shall not contract for related
services with any current or former Blackbaud employees or subcontractors for a
period of six (6) months from the date agreement or employment relationship with
Blackbaud terminated. Failure to comply with this provision may at Blackbaud's
sole discretion result in (i) removal of all existing consultant resources from
Client sites and/or (ii) the immediate termination of this Agreement and
Blackbaud's obligation to provide any further Services.
3. FEES, EXPENSES, & PAYMENT. For all Services performed under an SOW or other
request for Services that references this Agreement, Client shall: (i) pay
Blackbaud in accordance with each SOW or at the then current Blackbaud standard
rates, whichever are applicable; (ii) reimburse Blackbaud for all reasonable and
necessary travel and living expenses Blackbaud incurs performing such Services,
provided such expenses are incurred in compliance with Blackbaud's travel and
expense policy, and provided further that such expenses are incurred pursuant to
an applicable SOW or other request for Services by Client; and (iii) pay
Blackbaud upon receipt of each invoice. All payments pursuant to this Agreement
are non-refundable. Unless Client provides Blackbaud with a valid tax exemption
or direct pay certificate upon execution of this Agreement, Client is
responsible for all taxes, duties, and customs fees which may be assessed on the
amounts paid for Services performed hereunder, excluding taxes based on
Blackbaud's income or payroll. Blackbaud reserves the right to invoice Client
the lesser of twelve percent (12%) annual interest or the highest interest rate
allowable under applicable laws for any outstanding, undisputed invoice not paid
within thirty (30) days after receipt. Blackbaud invoices shall describe the
following: (i) the time period for which work and expenses are billed; (ii) the
quantity of work performed; (iii) the hourly rates charged, if applicable; (iv)
travel and living expenses by type and amount; and (v) totals.
4. INSURANCE. Blackbaud shall maintain statutory minimum Worker's Compensation
and Employer's Liability Insurance as required by the laws of any state or
country in which Services are performed.
5. CONFIDENTIAL INFORMATION.
5.1 DEFINITION. The term "CONFIDENTIAL INFORMATION" shall mean: (i) any and all
information which is disclosed by either party ("OWNER") to the other
("RECIPIENT") verbally, electronically, visually, or in a written or other
tangible form which is either identified or should be reasonably understood to
be confidential or proprietary; and (ii) the terms, including without
limitation, the pricing, of this Agreement and any proposals or other documents
that preceded this Agreement. Confidential Information may include, but not be
limited to, trade secrets, computer programs, software, documentation, formulas,
data, inventions, techniques, marketing plans, strategies, forecasts, client
lists, employee information, financial information, confidential information
concerning Owner's business or organization, as Owner has conducted it or as
Owner may conduct it in the future. In addition, Confidential Information may
include information concerning any of Owner's past, current, or possible future
products or methods, including information about Owner's research, development,
engineering, purchasing, manufacturing, accounting, marketing, selling, leasing,
and/or software (including third party software).
5.2 TREATMENT OF CONFIDENTIAL INFORMATION. Owner's Confidential Information
shall be treated as strictly confidential by Recipient and shall not be
disclosed by Recipient to any third party except to those third parties
operating under non-disclosure provisions no less restrictive than in this
Section and who have a justified business "need to know". Client shall protect
the deliverables resulting from Services with the same degree of care. This
Agreement imposes no obligation upon the Parties with respect to Confidential
Information which either party can establish by legally sufficient evidence: (a)
was in the possession of, or was rightfully known by the Recipient without an
obligation to maintain its confidentiality prior to receipt from Owner; (b) is
or becomes generally known to the public without violation of this Agreement;
(c) is obtained by Recipient in good faith from a third party having the right
to disclose it without an obligation of confidentiality; (d) is independently
developed by Recipient without the participation of individuals who have had
access to the Confidential Information; or (e) is required to be disclosed by
court order or applicable law, provided notice is promptly given to the Owner
and provided further that diligent efforts are undertaken to limit disclosure.
5.3 CONFIDENTIALITY AND DISCLOSURE OF PATIENT INFORMATION. Healthcare Clients
Only: Blackbaud does not expect to have access to confidential individually
identifiable health information ("IIHI"), as that term is used in the Health
Insurance Portability and Accountability Act ("HIPAA") in connection with its
fundraising database analytical services. Because Blackbaud does have many
healthcare clients and may inadvertently receive IIHI, it is Blackbaud's policy
that it will: (i) treat all donor information in compliance with all applicable
federal and state laws; and (ii) implement and use any and all reasonable means
and appropriate safeguards to prevent the use or disclosure of IIHI and will
immediately notify Client of any unauthorized use or disclosure of IIHI.
5.4 RIGHTS AND DUTIES. The Recipient shall not obtain, by virtue of this
Agreement, any rights, title, or interest in any Confidential Information of the
Owner. Within fifteen (15) days after termination of this Agreement, each party
shall certify in writing to the other that all copies of Confidential
Information in any form, including partial copies, have been destroyed,
returned, or used solely as the Owner so directs.
5.5 SURVIVABILITY. The terms of this Section 5 shall survive termination of
this Agreement. If the Parties have executed a separate agreement that contains
confidentiality terms prior to or contemporaneously with this Agreement, those
separate confidentiality terms shall remain in full force to the extent they do
not conflict.
6. INDEMNITY.
6.1 PATENT AND COPYRIGHT INDEMNITY. Blackbaud shall indemnify and defend Client
against any claims that the Work Product (defined below) delivered to Client
pursuant to an SOW infringes any United States or Canadian patent or copyright,
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 the associated
software license agreement between the Parties has not been terminated,
Blackbaud shall, in its reasonable judgment and at its option and expense: (i)
obtain for Client the right to continue using the Work Product; (ii) replace or
modify the Work Product so that it becomes non-infringing while giving
equivalent performance; or (iii) if Blackbaud cannot obtain the remedies in (i)
or (ii), as its sole obligation, terminate the license for the infringing Work
Product and return only the Services fees paid by Client for such Work Product.
Blackbaud shall have no liability to indemnify and defend Client 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
Client (ii) the alleged infringement is the result of a modification made by
anyone other than Blackbaud; or (iii) Client uses the Work Product other than in
accordance with this Agreement, any delivered documentation under an SOW, or the
underlying software license to use such Work Product.
6.2 INDEMNITY. Each party ("INDEMNIFYING PARTY") shall indemnify and hold the
other party ("INDEMNIFIED PARTY") harmless against any third party claim,
including costs and reasonable attorney's fees, in which the Indemnified Party
is named as a result of the grossly negligent or intentional acts or failure to
act by the Indemnifying Party, its employees or agents, while performing its
obligations hereunder, which result in death, personal injury, or tangible
property damage. This indemnification obligation is contingent upon the
Indemnified Party providing the Indemnifying Party with prompt written notice of
such claim, information, all reasonable assistance in the defense of such
action, and sole authority to defend or settle such claim.
6.3 SURVIVAL. The terms of this Section 6 shall survive termination of this
Agreement.
7. WARRANTIES AND REPRESENTATIONS. Each party warrants that it has the right
and power to enter into this Agreement and an authorized representative has
executed this Agreement. Blackbaud warrants that the Services will be performed
in a professional and workmanlike manner in accordance with recognized industry
standards. To the extent Services provided by Blackbaud are advisory, no
specific result is assured or guaranteed. BLACKBAUD EXPRESSLY DISCLAIMS ALL
OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY
ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER
BLACKBAUD EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS
FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION PROVIDED IN SECTION
6, BLACKBAUD'S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE
LIMITED TO THE AMOUNT OF SERVICES FEES PAID BY CLIENT FOR THE SERVICES FROM
WHICH THE CLAIM AROSE. IN NO EVENT SHALL BLACKBAUD BE LIABLE FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT
LIMITATION, LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF CLIENT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION
OF RISK SET FORTH HEREIN.
9. RIGHTS TO WORK PRODUCT. Any expression or result of Blackbaud's Services,
or the work, findings, analyses, conclusions, opinions, recommendations, ideas,
techniques, know-how, designs, programs, tools, applications, interfaces,
enhancements, software, and other technical information (collectively "WORK
PRODUCT") created by Blackbaud in the course of performing the Services
hereunder are the property of Blackbaud and are licensed to Client, without
further license fees, pursuant to the Blackbaud software license(s) to which the
consultation Services pertain, provided, however, to the extent such Work
Product provided to Client by Blackbaud contains Client's Confidential
Information, Client shall retain title to such Confidential Information. Client
shall have no right to sublicense, transfer, assign, convey or permit any third
party to use or copy any Work Product.
10. MAINTENANCE OF DEVELOPMENT WORK. Standard maintenance and support services
offered by Blackbaud do not cover any customized software or new development
created under an SOW. If available, maintenance and support may be addressed
under a separate services agreement.
11. INDEPENDENT CONTRACTOR STATUS. Blackbaud performs this Agreement as an
independent contractor, not as an employee of Client. Nothing in this Agreement
is intended to construe the existence of a partnership, joint venture, or agency
relationship between Client and Blackbaud.
12. NOTICE. All notices or other communications referenced under this Agreement
shall be made in writing and sent to the address designated above, designated in
a specific SOW, or designated from time to time in writing by the Parties. All
notices shall be deemed given to the other party if delivered receipt confirmed
using one of the following methods: registered or certified first class mail,
postage prepaid; recognized courier delivery; or electronic mail.
13.1 TERMINATION OF PROFESSIONAL SERVICE. Unless otherwise agreed to, either
party may terminate this Agreement or any SOW at any time by giving the other
party written notice of termination. If this Agreement or an SOW is terminated
by the Client, Client shall pay Blackbaud for all work performed and for all
expenses incurred prior to the effective date of termination. Client shall also
pay a termination fee equal to 25% of the total amount contracted for the
professional service under the applicable SOW. If Client provides less than six
(6) business days advance notice of an SOW termination for which professional
services have been scheduled, the termination fee payable as set forth above
shall be equal to 100% of the scheduled service as set forth in the SOW.
13.2 POSTPONEMENT OF PROFESSIONAL SERVICE. No penalty will be assessed if Client
postpones a scheduled professional service at least 20 business days or more
before the start of the scheduled professional service. If Client postpones a
scheduled professional service at least six (6) but less than twenty (20)
business days before the start of the scheduled professional service, a penalty
of 25% of the amount of the scheduled professional service may be assessed. If
Client postpones a scheduled professional service less than six (6) business
days before the start of the scheduled professional service, a penalty up to
100% of the scheduled service may be assessed.
14. WAIVER. No modification to this Agreement nor any failure or delay in
enforcing any term, exercising any option, or requiring performance shall be
binding or construed as a waiver unless agreed to in writing by both parties.
15. FORCE MAJEURE. Except for Client's obligation to pay Blackbaud, neither
party shall be liable for any failure to perform its obligations under this
Agreement or any SOW if prevented from doing so by a cause or causes beyond its
control, including without limitation, acts of God or public enemy, failure of
suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war,
and restraints of government.
16. SEPARATE AGREEMENTS. All Services provided herein are acquired separately
from any software licenses agreed to between the Parties. Specifically, Client
may acquire software licenses without acquiring consulting services. Client
understands and agrees that this Agreement and any SOW is a separate and
independent contractual obligation from any schedule relating to software
licenses. Client shall not withhold payments that are due and payable under this
Agreement because of the status of any software licenses or schedules, nor shall
Client withhold payments that are due and payable relating to software licenses
or schedules because of the status of work performed hereunder. In addition, the
ability to provide such services are not exclusive or specific to Blackbaud and
are commercially available from a variety of third party service providers.
17. DISPUTE RESOLUTION. Any disputes or claims under this Agreement or its
breach shall be submitted to and resolved exclusively by arbitration conducted
in accordance with American Arbitration Association rules. One arbitrator
appointed under such rules shall conduct arbitration. Arbitration shall be in
Charleston, S.C., and the laws of South Carolina shall be applied. Any decision
in arbitration shall be final and binding upon the parties. Judgment may be
entered thereon in any court of competent jurisdiction. Notwithstanding the
above, Blackbaud may xxx in any court for infringement of its proprietary or
intellectual property rights.
18. GENERAL. This Agreement shall be governed by the laws of the State of South
Carolina, excluding choice of law principles. Except as otherwise specifically
stated herein, remedies shall be cumulative and there shall be no obligation to
exercise a particular remedy. If any provision of this Agreement is held to be
unenforceable, the other provisions shall nevertheless remain in full force and
effect. This Agreement and the SOW(s) constitute the entire understanding
between the Parties with respect to the subject matter herein and may only be
amended or modified by a writing signed by a duly authorized representative of
each party. This Agreement may be executed by facsimile. This Agreement replaces
and supersedes any prior verbal or written understandings, communications, and
representations between the Parties regarding the subject matter contained
herein. No purchase order or other ordering document that purports to modify or
supplement the printed text of this Agreement or any Exhibit shall add to or
vary the terms of this Agreement or Exhibit. All such proposed variations,
edits, or additions (whether submitted by Blackbaud or Client) to this Agreement
or to an SOW, are objected to and deemed material unless otherwise mutually
agreed to in writing.
19. SPECIAL TERMS AND CONDITIONS PERTAINING TO DATA RESEARCH SERVICES. Client
will be licensed to utilize its updated master file database, without
restriction, once the Services are delivered by Blackbaud, with the
understanding that the data provided is from proprietary sources and may be
utilized for Client's internal purposes only.
1. Client represents and warrants that (i) it has all right and authority
necessary to enter into and perform this Agreement; (ii) it owns all rights in
and to data provided to Blackbaud for use in and in connection with the
Services; (iii) Blackbaud's use of such materials in and in connection with the
Services will not violate the rights of any third party.
2. If Email Append Services are part of this Order, Terms and Conditions on
Attachments A and A-1 affixed hereto shall apply.
The Parties hereby agree to all of the above terms and have executed this
Agreement by a duly authorized officer or officer representative.
EFFECTIVE DATE:
ACCEPTED BY: BLACKBAUD, INC.
ACCEPTED BY: [CUSTOMERNAME]
_________________________________ __________________________________
Authorized Signature Authorized Signature
__________________________________ XXXXXXX X. XXXXXX, CFRE - DIRECTOR,
Printed Name and Title CONSULTING SERVICES
Printed Name and Title
