EXHIBIT 10.9
BLACKBAUD SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE OPENING
THE PACKAGE CONTAINING THE COMPUTER SOFTWARE AND THE ACCOMPANYING USER
DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE". THE SOFTWARE IS COPYRIGHTED AND
LICENSED (NOT SOLD). BY OPENING THE PACKAGE CONTAINING THE SOFTWARE, YOU ARE
ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU ARE NOT
WILLING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT, YOU SHOULD RETURN
THE PACKAGE UNOPENED WITHIN THIRTY (30) DAYS OF YOUR INVOICE DATE, AND YOU WILL
RECEIVE A CREDIT OR A REFUND. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE
AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND BLACKBAUD AND IT SUPERCEDES
ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
1. LICENSE GRANT. This is a legal agreement between You, the end user, and
Blackbaud, Inc. ("Blackbaud"). Blackbaud grants to You, and You accept, a
nontransferable, nonexclusive license to use one copy of the Software in machine
readable, object code form only, and the accompanying user documentation ("User
Documentation") for the Software, only as authorized in this Agreement. For
purposes of this Agreement, the "Software" includes not only the computer
program contained in this package and updates thereto, but also all applications
or modifications written by Blackbaud for You utilizing the Application
Programming Interface ("API") or Visual Basic Application ("VBA") contained in
the Software ("Blackbaud Tools"), if any. You have a non-transferable, royalty
free license to use such applications or modifications under the terms of this
License. If You or a third party on your behalf creates an application or
modification using the Blackbaud Tools, You shall only have title to such
modification that remains after the Blackbaud Tools are separated from the
modification. You hereby grant to Blackbaud a perpetual, royalty free,
transferable license to use any application or modification created by you or a
third party on your behalf using the Blackbaud Tools. You may purchase a single
copy license or a network license for the Software. If you have purchased a
single copy license, You may only use the Software on one single computer at a
time. If You have purchased a network license, You may only use the Software on
a licensed computer network where Your simultaneous use of and access to the
Software must be limited to the number of authorized users You designate in
Blackbaud's standard order form. For purposes of this Agreement, a computer
network is any combination of two or more terminals that are electronically
linked and capable of sharing the use of a single copy of the Software. If this
License includes runtime applications, such License is transferable with respect
to such applications only to Your bona fide affiliate offices disclosed in
writing to Blackbaud. Your use of the Software may not exceed the scope of the
use provisions above without the express written agreement of Blackbaud and Your
payment of additional license fees. Blackbaud reserves the right to charge late
fees for overdue payments. In addition, you may make only one (1) exact copy of
the Software (using the same Blackbaud serial number) for testing purposes only,
in a non-production environment.
2. COPYRIGHT. The Software contains trade secret and proprietary information
owned by Blackbaud or its third party licensors and is protected by United
States copyright laws and international trade provisions. You must treat the
Software like any other copyrighted material and, except solely for backup or
archival purposes for which You may make copies, You may not disclose, copy,
transfer or transmit the Software or the User Documentation, electronically or
otherwise, for any purpose. All permitted copies of the Software and the User
Documentation must include Blackbaud's copyright and other proprietary notices.
3. OTHER RESTRICTIONS. You agree that the Software and the User Documentation
are proprietary products and that all right, title and interest in and to the
Software and User Documentation, including all associated intellectual property
rights, are and shall at all times remain with Blackbaud and its third party
licensors. You may not sublicense, assign, transfer, sell, rent, lend or lease
the Software or the User Documentation, or any portions thereof, and any attempt
to do so is null and void. You may not reverse engineer, disassemble, decompile
or make any attempt to ascertain, derive or obtain the source code for the
Software.
4. LIMITED WARRANTY. For a period of thirty (30) days from the date of Your
receipt of the Software (the "Warranty Period"), Blackbaud warrants that the
media on which the Software is distributed will be free from defects in
materials and workmanship and that the Software will perform substantially in
accordance with the functional specifications contained in the User
Documentation. Any written or oral information or representations provided by
Blackbaud agents, employees, resellers, consultants or service providers with
respect to the use or operation of the Software will in no way increase the
scope of this warranty.
5. CUSTOMER REMEDIES. If during the Warranty Period the Software fails to comply
with the warranty set forth above, Blackbaud's entire liability and Your
exclusive remedy will be either a) repair or replacement of the Software, or if
in Blackbaud's opinion such repair or replacement is not possible, then b) a
full refund of the price paid for the Software. The foregoing remedies apply
only if You return all copies of the Software to Blackbaud within 30 days of
receipt by You. This limited warranty is void if failure of the Software has
resulted from accident, abuse, misuse or negligence of any kind in the use,
handling or operation of the Software, including any use not consistent with the
User Documentation or Blackbaud training.
6. MAINTENANCE. Payment of Blackbaud's annual maintenance fee entitles You to
receive those maintenance services provided to Blackbaud's general client base
for the Software You have licensed. Unless otherwise agreed in writing,
Blackbaud's maintenance obligations do not cover any application, modification
or interface written by Blackbaud, You or a third party using Blackbaud Tools.
You are responsible for (i) installing all Updates and Enhancements to the
Software; (ii) updating all other non-Blackbaud software used in conjunction
with the Software, including but not limited to operating system software, word
processing, spreadsheet, reporting and/or database software; and (iii) upgrading
any hardware and memory on the system on which You use the Software. If you are
using Blackbaud products that require a common database, you must remain current
on maintenance for all products for as long as the software is in use in order
to assure the integrity of your Software. Cancellation of maintenance on any one
system may cause incompatibilities with related products, and performance of all
Software could be adversely affected. Blackbaud has no other responsibilities
with respect to Maintenance other than those specified in this Section and will
not be responsible for maintaining other than the most current, unaltered
release of the Software.
7. NO OTHER WARRANTIES. BLACKBAUD DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR
RESULTS OBTAINED BY YOU IN USING THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET
YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR FREE. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE IS LICENSED
"AS IS" AND BLACKBAUD EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH
RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION ON LIABILITY. IN NO EVENT WILL BLACKBAUD BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, GOOD WILL, OR OTHER
PECUNIARY OR NON-PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE
THE SOFTWARE, EVEN IF BLACKBAUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL BLACKBAUD'S LIABILITY EXCEED THE LICENSE FEES PAID BY
YOU DURING THE TWO-YEAR PERIOD PRECEEDING NOTICE TO BLACKBAUD OF YOUR LOSS.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. TERMINATION. This license is effective until terminated. You may terminate
the license granted under this Agreement at any time by returning all copies of
the Software to Blackbaud or destroying or erasing all copies of the Software.
It will also terminate at our option upon your failure to comply with any
material term and condition hereof. In the event of termination, all the
sections of the license will survive except the License Grant and Maintenance
sections.
10. SOFTWARE MODIFICATIONS. Other than modifications using Blackbaud API or VBA
tools, any modifications that You make to the Software, including any
modifications to any third party licensor software included with or embedded in
the Software will void any Maintenance or Warranty obligations contained in this
Agreement. Blackbaud will not be liable, in any respect, for any such
modifications or any errors or damages resulting from such modifications.
11. MISCELLANEOUS. This Agreement and your Agreement to Purchase together set
forth the entire agreement between the parties with respect to the subject
matter hereof and all other agreements, representations, communications and
understandings, both oral and written, are superceded hereby. (You will have a
separate agreement for maintenance services.) If any court of competent
jurisdiction declares any term of this Agreement void or unenforceable, that
declaration shall have no effect on the remaining terms hereof. The failure by
either party to enforce any rights granted hereunder or to take action against
the other party in the event of any breach of this Agreement will not be deemed
a waiver by that party as to the subsequent enforcement of rights or subsequent
actions in the event of future breaches. Neither party shall be liable for any
delay, nonperformance or related damages if such delay or nonperformance was due
to causes beyond its reasonable control, including, but not limited to acts of
God, civil emergencies, electrical power failure, loss of communications, or the
delay of the other party or third parties.
12. ARBITRATION. 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.
Software License Agreement 06/01/00
