Last updated January 2022
These Terms and Conditions, together with the terms set forth on the attached Order Form (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").
Throughout this Agreement, Candid and Licensee may be referred to collectively as the "Parties" and each individually as a "Party".
The Agreement shall be effective upon Licensee's acceptance of this Agreement 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.
WHEREAS, Candid is a charitable organization whose charitable purposes include to collect, organize, and make available to the public information about the nonprofit sector and to study and give counsel on the organization, management, and programming of nonprofits;
WHEREAS, Candid works to connect people who want to change the world to the resources they need to do it through research, collaboration, and training;
WHEREAS, every year, millions of nonprofits spend trillions of dollars around the world and Candid has developed tools like Candid API to help find out and explain where that money comes from, where it goes, and why it matters;
WHEREAS, Licensee desires to obtain a license to Candid API for the purpose of benefiting the social sector;
WHEREAS, the license of Candid API to Licensee directly furthers Candid's charitable purposes of strengthening the social sector by advancing knowledge about philanthropy in the United States and around the world;
NOW, THEREFORE, 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, as GuideStar API, Foundation Center API, or both,
for the purposes of extracting certain Candid Data for the Permitted Uses. The four API
categories covered in this Agreement 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 Free 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, 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 are 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" means the data and information regarding nonprofit entities that are made available to Licensee via the Candid API.
- "Candid Marks" means GuideStar, Foundation Center, or 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. Documents and
things containing Confidential Information are themselves Confidential
Information. Confidential Information meeting the foregoing definition is Confidential
Information regardless of whether it is so marked. Confidential Information includes
without limitation: technical data, trade secrets, know-how (including, but not limited
to, research, product plans, products, services, and partner lists); software, data and
databases; developments, discoveries, inventions and improvements thereto, processes,
formulas, proprietary technology, designs, and drawings; hardware configuration
information; 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 costs, prices, and 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 prior to it receiving such information from the disclosing Party;
- information in, or which comes generally known to others (through no wrongful act of the receiving Party);
- information disclosed to the receiving Party by a third Party lawfully holding same and not subject to an obligation of confidentiality; and
- information that is independently developed by the receiving Party, without any reference to the disclosing Party's Confidential Information, as shown by contemporaneous documentation.
- "Effective Date" is the earlier of the date of completion by Licensee of the online registration process to license Candid content or the date of signature by Licensee of this Agreement.
- "Intellectual Property" means copyright interests in works of authorship of all types (including, without limitation, the right to use, reproduce, modify, distribute, publicly display and publicly perform that copyrighted work), rights in names and marks (including, without limitation, corporate names, trade names, trademarks, service marks, combination marks, logos, trade dress, and domain names), patent rights (including, without limitation, the right to make, use and sell), 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 (including, as applicable, provisional applications, continuations, continuations in part, reissues, renewals, re-examinations and foreign counterparts); all goodwill associated with the business conducted under names and marks; and all other intellectual property rights, regardless of 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 Agreements is accepted.
2. Ownership of Intellectual Property
As between the Parties, Candid is and shall remain the sole owner of all Intellectual Property rights provided for or contemplated herein this Agreement, including but not limited to the Candid APIs, Candid Database, Candid Products, Candid Data, the Candid Site(s) and any Candid Marks. Licensee acknowledges that the compilation of the Candid Data is a proprietary work of Candid and comprises:
- Works of original authorship, including compiled information containing Candid's selection, arrangement, coordination, and expression of the data therein or pre-existing material; and
- Information that has been created, developed, and maintained by Candid at a 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 of the API(s)
- 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 in order to allow Licensee Customers to learn about nonprofit organizations for the purpose of evaluating them as recipients of charitable donations;
- Provide access to the Candid Data by means of the Candid API for additional purposes expressly outlined in Exhibit(s); and
- Use the Candid Marks within the Licensee Site and in marketing and promotional materials to identify Candid as the source of the Candid Data.
- 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 matter commercially exploits the materials or the Candid API, or otherwise distribute in any way the content on the Candid Site other than as specifically permitted herein;
- in Candid's sole judgement, adversely affect Candid's business and 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 the Order Form;
- 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 regarding not for profit organizations through any methods similar to those used by Candid 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 regarding not for profit organizations; 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.
- Authorized User Agreements. Licensee shall ensure that its access or user agreements are valid, binding, and enforceable against Licensee Customers. Licensee shall provide Candid with a copy of any of its access or user agreements upon request.
- 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 and use its best efforts to promptly notify the Licensee Customer that such use is unauthorized and provide such information as Candid may request concerning such Licensee Customer and the unauthorized use or other violation. Licensee shall also provide Candid with such information as Candid may request concerning any such unauthorized use or other violation (including information concerning the Licensee Customer in question) of which Candid becomes aware.
- 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: “© [YEAR] 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.
- Audit Rights. Licensee agrees to keep records and books of account relating to the License (including, as applicable, number of subscriptions and users, etc.). Candid will have the right, not more than one (1) time during each year of the Term and for a period of two (2) years 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. Such audit will take place upon no less than five (5) business days' prior notice to Licensee during regular business hours. Candid will make reasonable efforts to minimize the disruption to Licensee's business, and Licensee will cooperate with Candid in the conduct of such audit. Candid shall bear its own expense in connection with such audit, provided that if any audit reveals an underpayment or other non-compliance with the License terms, Licensee will promptly pay all amounts owed and or otherwise correct any non-compliance and confirm it has done so in writing. If any underpayment is five percent or more for the applicable period, Licensee will also pay interest at the rate of 1.5% per month on the unpaid portion (from the date due until date paid) and reimburse Candid for the expense of the audit (not to exceed $10,000). In addition, as an alternative, Candid reserves the right at any time during the Term to require Licensee to: (a) provide an executive officer's certificate verifying compliance with the terms of the License; and/or (b) accurately complete a self-audit questionnaire relating to use of Candid API that is verified by an executive officer. By invoking any rights and procedures described above, Candid does not waive its rights to enforce the License or to protect its intellectual property by any other means permitted by law.
4. Term and Termination
- Candid 'Free' API
- For Candid Free API, this Agreement will commence and become effective when You accept them. The Agreement 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 the Agreement; 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)
- Candid 'Limited Free Trial' API
- For Candid Limited Free Trial API, the Agreement 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 Limited Free Trial API immediately, or at any time, based on either 1) non-compliance with any terms and conditions set forth in this Agreement; OR 2) with or without notices 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).
- Candid Paid API
- Term. The Term of the Candid Paid API is set forth on the Order Form. This Agreement will then renew automatically unless either Party provides the other at least thirty (30) days prior written notice to the expiration of the then current term.
- Termination for Breach. This Agreement 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 thirty (30) 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 this Agreement 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 service 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.
- Candid Sandbox API
- Term. The Term of the Candid Sandbox API access set forth in the Order Form. The Term shall run contemporaneously with the Candid Paid API.
- Termination for Breach. Termination of access to the Candid Sandbox 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 thirty (30) business days after receiving written notice by the party not in breach. Without limited the foregoing, if Licensee fails to make payment to Candid by the applicable due date, Candid may suspend access to the Candid Sandbox 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 Sandbox 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 byCandidpursuant 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. Payment Terms and Expenses
- 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 this Agreement. 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 reports showing monthly and year-to-date usage of the Candid API.
- Right to Terminate for Non-Payment of Fees. Failure to comply with such payment terms shall be considered a material breach of this Agreement by Licensee. Candid then may immediately terminate this Agreement, 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
- Warranties. Each of the Parties hereto represents and warrants to the other that:
- it has full power and authority to enter into this Agreement and perform its obligations hereunder, and
- all necessary corporate, limited liability company, partnership or other entity action, as applicable,
been duly taken to authorize the individual signing below on its behalf to sign this Agreement. Licensee
represents and warrants that it will:
- use the Candid Products only for lawful purposes and in compliance with all applicable laws, rules and regulations; and
- not make any representations or warranties regarding the Candid Products including, without limitation, warranties of completeness or accuracy of the information included therein, which exceed the representations and warranties provided by Candid hereunder.
- DISCLAIMERS OF WARRANTY.
- CANDID MAKES NO WARRANTY THAT ANY OF THE CANDID PRODUCTS, THE CANDID DATA, THE CANDID DATABASE OR THE CANDID SITE IS VIRUS FREE OR ERROR FREE, THAT SAME 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, THE CANDID DATA, THE CANDID DATABASE AND THE CANDID SITE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” CANDID HAS MADE AND MAKES NO OTHER WARRANTIES, AND IT DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, OR ARISING BY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES RELATING TO NONINFRINGEMENT, NONINTERFERENCE, ACCURACY, MERCHANTABILITY, TIMELINESS, PERFORMANCE, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR THAT ANY INFORMATION, EFFORTS, SERVICES OR SYSTEM PROVIDED BY CANDID WILL FULFILL ANY OF LICENSEE'S PARTICULAR PURPOSES OR NEEDS. CANDID MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD PARTY'S SOFTWARE AND/OR EQUIPMENT.
- Without limiting the foregoing, Candid does not warrant or guarantee the accuracy, quality, completeness, currency, or validity of any information on the Candid Site (including, without limitation, the Candid Database and its content) or linked or provided from the Candid Site. Licensee acknowledges that, with respect to information concerning organizations as to which information is included in the Candid Database and/or in any Candid Product: (1) Candid did not prepare any such information or data; (2) 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; (3) 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 (4) 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 (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AND PERMITTED SUCCESSORS AND ASSIGNS) 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, THE LICENSES GRANTED HEREIN, THE SUBJECT MATTER LICENSED HEREIN OR THE USE OR INABILITY TO USE THE SUBJECT MATTER LICENSED 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 THE OTHER 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, REGARDLESS OF WHETHER CANDID HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY IN THE EVENT OF A BREACH BY LICENSEE OF THE PROVISIONS SET FORTH IN SECTION 3 OF THE AGREEMENT.
- Candid shall not have any liability to Licensee, any Authorized User or any other third Party with respect to any actual or alleged inaccuracy, untimeliness, incompleteness, inadequacy, unmerchantability or unfitness with respect to the Candid Database or any Candid Product.
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 contracts or disputes between Licensee and, or claims by, any of Licensee's vendors or business partners, or any nonprofit organization or other third Party; (ii) any breach by Licensee or any Authorized User of this Agreement or any Exhibit, whether or not involving a claim by a third Party; (iii) 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 this Agreement; or (iv) any claims arising out of the Licensee Products (including without limitation, any claims that the Licensee Products (excluding the Candid Products) infringe any third Party Intellectual Property Rights). Licensee shall also reimburse Candid from time to time upon request for any legal fees, expert witness fees or other expenses reasonably incurred by Candid in connection with investigating and/or defending any such claim as such expenses are incurred.
- 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 this Agreement, 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 this Agreement 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 this Agreement for so long as the information in question continues to meet the definition of Confidential Information in Section 1 above.
- Notices. Any notice or waiver (“Notice”) concerning this Agreement must be in writing and be sent
the other party at the address below (or to another address given by a party in a Notice) by personal delivery,
recognized courier service, certified or registered mail (postage prepaid, return receipt requested) or by
method for which the sender has written confirmation of receipt by the other party. Notice will be considered
upon receipt, as evidenced by delivery receipt or other written proof.
If to Candid:
32 Old Slip
New York, NY 10005
Attn: Contracts Manager
Email: [email protected]
If to Licensee:
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable in any jurisdiction for any reason, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby and such remaining provisions will remain in full force and effect. In addition, this Agreement may be modified by Candid to the extent necessary to cure or, if necessary, delete the offending provision, and the Parties will negotiate in good faith to modify the Agreement to reflect their original intent to the greatest extent possible.
- Assignment. Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of this Agreement without the prior written consent of Candid. Candid may, without the prior written consent of Licensee, assign or transfer this Agreement at its sole discretion.
- Successors and Assigns. Any assignment of this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
- Amendment. This Agreement may not be amended, modified, or supplemented except by a subsequently dated written amendment to this Agreement (or a similarly-executed amendment to an Exhibit hereto), signed on behalf of both Parties by their duly authorized representatives.
- Force Majeure. Neither Party will be in breach or default of this Agreement or otherwise liable for any delay in or failure of its performance under this Agreement (except for any obligations to make payments to the other Party hereunder) to the extent such delay or failure arises from or in connection with an event or circumstance beyond its control, such as: any act of God or nature, including, but not limited to, fire, flood, hurricane, blizzard or other extreme or inclement weather, environmental conditions, or natural calamity or disaster; health risk or emergency, including, but not limited to, epidemic, pandemic, famine, disease, quarantine, and other health risks declared or recognized by the Center for Disease Control, the World Health Organization, a national government or other similar body; hostilities, including, but not limited to, war (whether or not declared), military action, terrorist acts, civil unrest, civil disobedience, curfew restriction, public disorder, violent demonstration, or similar unrest; contamination or pollutant, including, but not limited to, from radioactivity, nuclear waste, toxic explosive, chemical or other hazardous or harmful substance or source; action by workers, including, but not limited to, rioting, strikes, slowdowns, work stoppage, or other labor disputes or activity; interruptions or disruptions to infrastructure, including, but not limited to, electricity or other utilities, telecommunications, or transportation; government regulation, warning, advisory, travel restrictions, or similar actions or pronouncements of authorities; and other circumstances beyond the control of the Parties, whether or not foreseeable. (The party suffering a Force Majeure Event will give notice to the other Party, stating the period of time the occurrence is expected to continue and will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.)
- Governing Law; Venue. If a dispute arises out of or relates to (i) this Agreement or (ii) any
the Parties related to or issued under this Agreement or (iii) any actions in breach of any such agreement, the
to endeavor in good faith to settle the dispute in an amicable manner. The Parties will first make reasonable
efforts to settle
the dispute through direct discussion among the personnel involved with the implementation of the terms of the
Agreement in dispute.
The Parties acknowledge and agree that any legal suit, claim, cause of action, or proceeding relating to this Agreement or the transactions contemplated hereby will be governed by, and enforced in accordance with, the substantive and procedural laws of the State of New York, without regard to conflicts of law rules and must be brought in the state or federal courts sitting in the Borough of Manhattan, New York, New York. Each Party submits to the exclusive jurisdiction of such courts and irrevocably and unconditionally waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing party will be entitled to be reimbursed all costs and attorneys' fees.
- Survival. Provisions of this Agreement that, by their nature are meant to be performed after the termination or expiration of this Agreement, shall so survive, including without limitation those provisions governing ownership, confidentiality, indemnification, limitations of liability, governing law and audit rights.
- Waiver. A waiver of any term or breach of this Agreement must be in writing and signed by the waiving Party. A waiver in one instance will not constitute a waiver in another instance, whether similar or different. No failure or delay in exercising any right or remedy will be construed as a waiver of that right or remedy and no partial exercise of a right or remedy will preclude any further exercise.
- No Partnership or Joint Venture. The Parties are independent contractors and nothing in this Agreement should be construed to create an association, employment, joint venture, agency, or similar relationship between the Parties. Neither Party has any right to bind the other Party in any way except as the Parties may agree in writing in each case.
- Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement when a duly authorized representative of each Party has signed a counterpart. A signed copy of this Agreement delivered by email (or facsimile) is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- Agreement; Incorporation of Exhibits. If, from time to time, Licensee and Candid execute and deliver any additional Exhibits to the Agreement, each such Exhibit shall be deemed incorporated into this Agreement by reference as of the effective date specified in such Exhibit. The provisions of the Agreement shall apply to all Candid Products licensed to Licensee pursuant to the Agreement and any such Exhibit. In the event of a conflict between the Agreement and an Exhibit, the terms of the Agreement shall control with respect to the subject matter as to which a conflict exists.
- Headings. The headings in this Agreement are for the convenience of the reader and shall not be construed to alter or limit its terms. References herein to “Sections” shall be deemed to be references to Sections of this Agreement unless the context requires otherwise.
- Entire Understanding. This Agreement is the entire agreement and understanding of the Parties with respect to the subject matter hereof, and it supersedes all prior and contemporaneous agreements, understandings, representations, and warranties, both written and oral, relating to the subject matter hereof.