These Terms of Service ("TOS"), together with the terms set forth in the online product descriptions and limitations (including without limitation, any usage terms) (collectively, the "Agreement") govern the provision by Candid ("Candid") of access to the Candid API and the Candid Data (each defined below) and the use by the Licensee to this Agreement ("Licensee") of such access. The Agreement shall be effective upon Licensee's acceptance of these TOS by clicking on the button marked "I Accept". If Licensee is accepting on behalf of their employer or another entity, Licensee represents and warrants that (i) Licensee has full legal authority to bind Licensee's employer or the applicable entity to the Agreement ("Party Represented"); and (ii) Licensee agrees, on behalf of the Party Represented, to this Agreement. In consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings indicated:
- "Authorized Users" means those Licensee employees or contractors that are authorized by Licensee to access and use the Candid Data via the Candid API.
- "Candid API" means the application programming interface through which Licensee is provided access to Candid's servers for the purposes of accessing and/or extracting certain Candid Data for the Permitted Uses. The four API categories covered in this TOS are further defined as:
- "Candid 'Free' API" means Candid APIs that are specified in the API Documentation as 'Free' and are available to use at no cost within the terms of this agreement.
- "Candid 'Limited Time Trial' API" means Candid APIs that are available to use on a limited basis at no cost for the purpose of evaluation prior to purchase. Limitations are by time period or number of calls or both as specified in the API Documentation.
- "Candid Paid API" means Candid APIs that are specified in the API Documentation as 'Paid' and are available for purchase within the terms of this Agreement.
- "Candid Sandbox API" means Candid APIs that for sandbox use only. Candid Sandbox API are only available with the purchase of a paid API and can only be used in development, QA, UAT, or staging environments and cannot be used in any production environment.
- "Candid Data" shall mean the data and information regarding nonprofit entities that are made available to Licensee via the Candid API. "Candid Marks" means GuideStar™, the Candid logo and such other trademarks, service marks, trade names and logos of Candid.
- "Candid Marks" means Candid™, any Candid logos, and such other trademarks, service marks, trade names and logos as may be identified to Licensee as Candid Marks from time to time by Candid or included by reference in any Exhibit of Statement of Work.
- "Confidential Information" means all information of either party having actual or potential economic value by reason of not being generally known and that is the subject of reasonable efforts under the circumstances to maintain its secrecy including, without limitation: technical data, trade secrets, know-how, software, data and databases; proprietary technology, designs, and drawings; information about a party's marketing, research or product and service development plans; information about a party's employees, customers, vendors and licensees; information about a party's finances; the terms of this Agreement; third party information held by a party in confidence; and any other information not generally known to others. Confidential Information shall not include information that the receiving party can demonstrate:
- was already known to it prior to receiving such information from the disclosing party;
- was generally known to others (through no wrongful act of the receiving party);
- was disclosed to the receiving party by a third party lawfully holding same and not subject to an obligation of confidentiality; and
- is independently developed by the receiving party, without any reference to the disclosing party's Confidential Information.
- "Effective Date" is the effective on the date of completion and signature by You of the online registration process to license Candid content.
- "Intellectual Property" means copyright interests in works of authorship of all types, rights in names and marks, patent rights, trade secrets, moral rights, right of publicity, right of privacy, rights held under licenses, all registrations and applications for registration associated with any of the foregoing; all goodwill associated with the business conducted under names and marks; and all other intellectual property rights, regardless or whether such rights arise under the law of the United States or any other state, country, or jurisdiction.
- "Licensee Customers" means those individuals and entities that Licensee authorizes, by a user agreement or other binding, enforceable agreement (including but not necessarily an enforceable "click-wrap" license or online access agreement) to access and use the Candid Data made available on the Licensee Site via the Candid API.
- "Licensee Site" means the World Wide Web Site at which Licensee operates located at the URL specified on the Order Form.
- "We," "Our," "Us," "Candid," "the Licensor" or "Candid" is Candid, a New York not for-profit corporation
- "You," "Your" "Subscriber" or "Licensor" refer to the individual, company, organization or other legal entity on whose behalf this Agreement is accepted.
2. Ownership of Intellectual Property.
As between the parties, Candid is and shall remain the sole owner of the Candid APIs, the Candid Data, the Candid Marks and all Intellectual Property rights in the foregoing. Licensee acknowledges that the compilation of the Candid Data is a proprietary work of Candid and comprises: (a) works of original authorship, including compiled information containing Candid's selection, arrangement and coordination and expression of the data therein or preexisting material; and (b) information that has been created, developed and maintained by Candid at great expense, such that misappropriation or unauthorized use by others would irreparably harm Candid and/or reduce Candid's incentive to create, develop and maintain such information.3. License Grant.
3.1 Permitted Uses. Licensee may, subject to the terms of the Agreement:
- Provide access to the Candid Data through the Licensee Site to Licensee Customers by means of the Candid API solely in order to allow Licensee Customers to learn about nonprofit organizations; and
- Use the Candid Marks within Licensee's Site(s) and in marketing and promotional materials to identify Candid as the source of the Candid Data; and
- Provide access to the Candid Data by means of the Candid API for additional purposes expressly outlined in Exhibit(s)
3.2 Prohibited Uses. Licensee shall not, and shall not permit any Authorized User, to:
- use the Candid API or the Candid Data other than is expressly authorized by this Agreement;
- republish or distribute information from the Candid API (including, without limitation, by posting same on any third party Web site) except as expressly permitted herein;
- modify information from the Candid API;
- disassemble, decode, decompile, or otherwise reverse engineer the Candid API, including, without limitation, any interfaces or software programs comprising the Candid API;
- store, copy, reproduce, publish, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, sublicense, grant a security interest in or otherwise attempt to transfer any right, assign, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with, create derivative works based on or in any manner commercially exploit the materials or the Candid API or otherwise distribute in any way the content on the Site other than as specifically permitted herein.
- In Candid's sole judgment, adversely affect Candid's business, business prospects, the performance or function of the Candid API or interfere with the ability, of other subscribers to access the Candid API
- post, transmit, share, store, or otherwise make available content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
- access any portion of the Candid API without authorization, cause interruptions in the accessibility of the Candid API;
- impede or interfere with the operation of any of the Candid API or introduce viruses or any other code, routine or device into the Candid API;
- change, recompile, reframe, rent, sell, distribute, display or publish the Candid API or the Candid Data, or any portion thereof, or enable others to do so, except as expressly permitted herein and in Order Form;
- create any derivative product from the Candid Data;
- fail to comply with all applicable laws, regulations and ordinances in connection with its access to or use of the Candid API or the Candid Data, and further including such with respect to infringement, misappropriation or other violation of Candid's Intellectual Property rights; or
- use any data mining, robots or similar data gathering and extraction methods with respect to the Candid API or the Candid Data in order to (1) create or compile a database or other collection or aggregation of information other than for Licensee's own internal business use; (2) license, sell or otherwise make available to others any such database or collection of information; or (3) to create a service or database that is directly competitive with Candid. This obligation will survive the termination or expiration of this Agreement.
- All rights not expressly granted in this Agreement are reserved to Candid.
3.3 Notification of Unauthorized Use. Licensee shall not permit access by any third party (other than Authorized Users, Licensee Customers or any other persons or entities to the extent specifically identified in the Order Form) to any portion of the Candid API. Should Licensee become aware of any unauthorized use of the Candid API, Licensee shall immediately notify Candid.
3.4 Data Attribution. Licensee agrees that any web page of the Licensee Site on or through which any Candid Data may be accessed shall display conspicuously the phrase "Powered by Candid" and the following legend: "© Candid. (www.candid.org)", and/or the Candid logo and/or any other Candid Mark(s) as Candid may require from time to time, in form and placement reasonably satisfactory to Candid.
3.5 Audit Rights. Candid shall have the right, not more than one (1) time during each year of the Term and for a period of one (1) year thereafter, to audit (itself or through a designee) the facilities, books and records of Licensee for the sole purpose of verifying Licensee's compliance with the License terms and prohibitions of this Agreement. Candid shall bear its own expense in connection with such audit. Such audit will take place upon no less than five (5) business days' prior notice to Licensee and only during regular business hours. Candid will make reasonable efforts to minimize the disruption to Licensee's business, and Licensee shall cooperate with Candid in the conduct of such audit.
4. Term and Termination.
4.1 Candid 'Free' API
For Candid Free API, the TOS shall commence and become effective when You accept them. The TOS will continue in effect for the term specified in the registration process, unless terminated earlier. Candid reserves the right to terminate your access to the Free API immediately, or at any time, based on either 1) non-compliance with any terms and conditions set forth in this TOS; OR 2) with or without notice and with or without cause.
Candid reserves the right to terminate your access to the Free API immediately, or at any time, based on either 1) non-compliance with any terms and conditions set forth in this TOS; OR 2) with or without notice and with or without cause. Upon termination or expiration of this Agreement, (a) all licenses granted by Candid pursuant to this Agreement shall terminate; (b) Licensee shall cease, and shall cause its Authorized Users to cease, all use of the Candid Data; and (c) each party shall return to the other party all of the other party's Confidential Information (except that each party may destroy, or purge Confidential Information if, by its nature, it is not reasonably transportable or otherwise not susceptible of return).
4.2 Candid 'Limited Free Trial' API
For Candid Limited Free API, the TOS shall be valid only for thirty (30) days (unless extended by written agreement by Candid) OR a limited number of calls (limits are specified in API documentation), whichever occurs first. Upon termination or expiration of the thirty (30) days, if Licensee wishes to continue to license the Candid API and the Candid Data, Licensee must enter into a longer-term commercial Candid API License Agreement that will govern such license and continued use.
Candid reserves the right to terminate your access to the Free Limited API immediately, or at any time, based on either 1) non-compliance with any terms and conditions set forth in this TOS; OR 2) with or without notice and with or without cause. Upon termination or expiration of this Agreement, (a) all licenses granted by Candid pursuant to this Agreement shall terminate; (b) Licensee shall cease, and shall cause its Authorized Users to cease, all use of the Candid Data; and (c) each party shall return to the other party all of the other party's Confidential Information (except that each party may destroy, or purge Confidential Information if, by its nature, it is not reasonably transportable or otherwise not susceptible of return).
4.3 Candid Paid API
- Term. The Term of the Candid Paid API access is set forth in the TOS.
- Termination for Breach. Termination of access to the Candid Paid API may be terminated immediately by either Party, upon written notice, when the other Party has breached any material provision of this Agreement and has failed to cure such breach within ten business (10) days after receiving written notice by the party not in breach. Without limiting the foregoing, if Licensee fails to make payment to Candid by the applicable due date, Candid may suspend access to the Candid API and/or terminate this Agreement upon ten (10) days prior written notice to Licensee.
- Termination for Bankruptcy. Candid may terminate its Agreement with Licensee immediately following written notice to Licensee if Licensee (i) ceases to do business in the normal course for a continuous period of longer than thirty (30) days; (ii) is declared insolvent or bankrupt; (iii) dissolves or liquidates; (iv) becomes the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days; or (v) makes an assignment for the benefit of creditors, or attempts to do so.
- Termination upon Notice. Candid may terminate this Agreement upon thirty (30) days prior written notice to Licensee if Candid ceases to support the Candid API for its customer base.
- Effects of Termination and Expiration.
- Upon termination or expiration of the Term, or any other termination of this Web Service Exhibit and/or the Agreement, (1) all licenses granted by Candid pursuant to this Agreement shall terminate; (2) Licensee shall cease, and shall cause its Authorized Users to cease, all use of the Candid Data; and (3) each Party shall return to the other Party all of the other Party's Confidential Information (except that each Party may destroy, or purge Confidential Information if, by its nature, it is not reasonably transportable or otherwise not susceptible of return).
- Termination or expiration of this Agreement shall not relieve a party of its obligations, to make payment or otherwise, at all times prior to the effective date of termination or expiration.
5. Expenses and Payment Terms.
- Expenses. Unless superseded by a written agreement to the contrary both Parties shall be solely responsible for their own expenses related to the execution and fulfillment of these TOS. In the event that one Party asks the other to perform certain activities in relation to their own obligations, and that Party agrees in advance, the asking Party will reimburse the other Party's all pre-approved, reasonable, out-of-pocket expenses incurred by that Party in the execution of those activities hereunder, provided the reimbursed Party must provide the asking Party with all receipts and detail necessary to evidence all such reasonable out-of-pocket expenses.
For the Candid Paid API:
- Fees. In exchange for the licenses granted herein, Licensee shall pay Candid the fees set forth in the Order Form in accordance with the payment terms therein. In the event that the fees are usage-based, Candid will provide Licensee with access to Your reports via a developer portal or other similar system, only during the current Term, showing monthly and year-to-date usage of the Candid Paid API.
- Right to Terminate for Non-Payment of Fees. Failure to comply with such payment terms shall be considered a material breach of these TOS by Licensee. Candid then may immediately terminate its Agreement with Licensee, deauthorize access to Licensee or any Authorized User to any Candid Product or service, the Candid Database or any Candid Site. Candid further reserves the right to pursue any other legal remedy afforded to it as outlined in this Agreement, Section 10, or otherwise by any court of competent jurisdiction.
6. Warranties; Disclaimers.
Each of the parties hereto represents and warrants to the other that (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder, and (ii) all necessary corporate, limited liability company, partnership or other entity action, as applicable, has been duly taken to authorize the individual signing below on its behalf to sign this Agreement. DISCLAIMERS OF WARRANTY. CANDID MAKES NO WARRANTY THAT ANY OF THE CANDID PRODUCTS ARE BUG FREE OR ERROR FREE, WILL OPERATE WITHOUT ANY INTERRUPTION, OR THAT USE OF SAME WILL RESULT IN ANY PARTICULAR RESULTS. THERE ARE NO WARRANTIES AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OF ANY INFORMATION OR AGAINST INFRINGEMENT. THE CANDID PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." CANDID DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, OR ARISING BY COURSE OF PERFORMANCE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, Candid does not warrant or guarantee the accuracy, quality, completeness, currency, or validity of the Candid Data. Licensee acknowledges that, with respect to information concerning organizations as to which information is included in the Candid Data, (i) Candid did not prepare any such information or data; (ii) any descriptive information is derived from IRS Forms 990, Forms 990-EZ, and Forms 990-PF filed by the organizations or their voluntary responses to a Candid questionnaire; (iii) any financial data are taken from the IRS Business Master File, IRS Forms 990, Forms 990-EZ, Forms 990-PF, or information provided to Candid by organizations that are not required to file returns with the IRS; and (iv) any classified ads and news releases are provided by the organizations. Licensee also acknowledges that Candid does not edit or control the financial information it receives; although it may (in its sole discretion) note obvious mathematical errors that it believes may exist in the materials as received by it. Candid does not endorse, support, sanction, or verify the information or material on or accessible via the Candid Site. Unless otherwise specifically indicated, Candid does not endorse and has no affiliation with any of the organizations mentioned, listed in, described on or linked to via the Candid Site, and it makes no representations or warranties whatsoever with regard to those organizations or any other organization, entity or person. Licensee acknowledges and agrees that (1) the information on the Candid Site is provided for educational and informational purposes only; (2) such information or materials do not constitute and are not intended to provide legal, accounting, or tax advice and should not be relied on in that respect; and (3) Licensee must rely on its own attorneys, accountants, and/or financial advisors to answer any financial or legal questions.
7. LIMITATIONS OF LIABILITY AND REMEDY.
IN NO EVENT SHALL CANDID HAVE LIABILITY FOR PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE LICENSES GRANTED HEREIN, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES ARE CLAIMED AND REGARDLESS OF WHETHER CANDID HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT SHALL CANDID HAVE OR INCUR CUMULATIVE MONETARY LIABILITY OF ANY TYPE TO LICENSEE IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF THE SUMS PAID AND PAYABLE TO CANDID UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM(S) FOR DAMAGES ACCRUED.
Licensee shall indemnify, defend and hold harmless Candid and its officers, directors, and employees against and from all liabilities, losses, expenses, damages and costs including, without limitation, reasonable attorney's fees, which result from, arise or are incurred in connection with or are related in any way to (i) claims by third parties arising from (a) any breach by Licensee or an Authorized User of these TOS; (b) any third party claim asserted against Candid by any non-profit organization or Authorized User arising out of the Licensee Site or access via the Licensee Site to the Candid Products; or (c) any representation or warranty made by Licensee to any third party that exceed any warranties and/or contradict the disclaimers of warranty made by Candid under these TOS.
In the course of this Agreement, each Party (the "Receiving Party") may receive or learn Confidential Information of the other Party (the "Disclosing Party"). The Receiving Party agrees that it shall: (i) not use the Disclosing Party's Confidential Information except as is reasonably necessary to exercise its rights and fulfill its obligations under this Agreement; (ii) not disclose the Disclosing Party's Confidential Information to third parties without the Disclosing Party's express prior written consent, except that each Receiving Party may disclose Confidential information to its employees, representatives, agents and (in the case of Licensee) Authorized Users (collectively, "Representatives") as reasonably necessary for such Receiving Party to exercise its rights or fulfill its obligations under these TOS, and provided further that such Representatives are subject to confidentiality agreements that are as protective of the Disclosing Party's Confidential Information as the provisions of this Agreement; and (iii) safeguard the Confidential Information against unauthorized use or disclosure with at least the same level of care as the Receiving Party uses to safeguard its own confidential information of a similar nature, and in no event with less than reasonable care. The provisions of these TOS shall not preclude a Receiving Party from disclosing Confidential Information pursuant to law, regulation, court order, subpoena, or other legal requirement, provided, however, that such disclosures may be made only to the extent actually so required and after the Receiving Party makes earliest practical notice to the Disclosing Party (unless such notice is prohibited by law). The Receiving Party will provide reasonable assistance (at the Disclosing Party's expense) in efforts to obtain a protective order or other lawful measure to prevent disclosure. Each Receiving Party acknowledges that any unauthorized use or disclosure of Confidential Information shall cause the Disclosing Party irreparable harm for which it could not be fully compensated by money damages, and that in such event the Disclosing Party shall be entitled to seek and obtain preliminary and permanent equitable relief without the necessity of posting a bond, in addition to other legal and equitable remedies. The obligations of confidentiality herein shall survive the termination or expiration of these TOS for so long as the information in question continues to meet the definition of Confidential Information in Section 1 above.
Any notice in connection with this Agreement shall be in writing and shall be deemed given: (i) upon delivery, if delivered in person or via email; (ii) one (1) business day after deposit with a national air express overnight courier, charges prepaid; or (iii) five (5) days after placement in the U.S. mails to be sent via certified mail, and in any event addressed to the addresses set forth below for Candid and on the Order Form, for Licensee. Foundation Center, 32 Old Slip, New York NY 10005, Attention: Counsel.
If any provision of these TOS are held by a court of competent jurisdiction to be void, contrary to law or public policy or otherwise unenforceable, these TOS shall be modified automatically to the extent necessary to cure or, if necessary, delete the offending provision, and the remaining provisions shall remain in full force and effect.
Neither Party shall be liable in damages or have the right to terminate these TOS for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections epidemics, pandemics and/or any other cause beyond the reasonable control of the Party whose performance is affected.
Neither Party shall directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the prior written consent of the other Party, assign or transfer these TOS as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets related to these TOS, provided the assignee agrees in writing to assume all of the assigning Party's obligations hereunder. Subject to the foregoing, these TOS will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. these TOS shall not be modified except by a subsequently dated written amendment to this Agreement signed on behalf of both parties by their duly authorized representatives.
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to these TOS, or the negotiation, execution or performance of t these TOS (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with these TOS or as an inducement to enter into these TOS), shall be governed by, and enforced in accordance with, the substantive and procedural laws of the State of New York, including its statutes of limitations. The Parties acknowledge and agree that any action taken with respect to claims filed in court, whether at law or equity, shall be brought, in the State of New York without regard to its conflict of laws provisions. All claims and disputes arising out of this Agreement shall be submitted to and resolved by binding arbitration, pursuant to the Rules and Regulations, and under the auspices of the American Arbitration Association. Any arbitration proceeding shall take place in the Borough of Manhattan, New York, New York. Notwithstanding the foregoing, no demand for arbitration or action of any kind or nature arising out of this Agreement shall be brought by Licensee more than one year after the date on which the cause of action first arises. Judgment upon the award rendered by the arbitrator may be entered in, and enforced by, and each Party to this Agreement submits to the exclusive jurisdiction of, the state and federal courts sitting in the Borough of Manhattan, New York, New York, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any arbitration proceeding or action to enforce the arbitrator's award, the prevailing party will be entitled to costs and attorneys' fees. Notwithstanding this, Licensee agrees that Candid will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Provisions of these TOS that, by their nature are meant to be performed after the termination or expiration of these TOS, shall so survive, including without limitation those provisions governing ownership, confidentiality, indemnification, limitations of liability, governing law and audit rights. No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse is in writing and signed by the party claimed to have waived, consented or excused. The Parties hereto are independent contractors. Neither Party is an employee, agent, partner or joint venture of the other. Neither Party shall have the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other Party. Each Party may use the other Party's name and logo in a listing of customers or partners with which such Party does business (which listing may appear on such party's website and/or in its marketing materials).
These TOS are the entire agreement and understanding of the Parties with respect to the subject matter hereof, and it supersedes all prior agreements, understandings and representations relating to the subject matter hereof. The Parties agree that there are no warranties and representations other than as are expressly set forth herein.