ChowMatch Services Agreement

This Software as a Service (SaaS) Agreement (“Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between Hing Consulting LLC, Inc. (“Hing,” “we,” “us,” or “our”) and you or the entity you represent (“Customer,” “you,” or “your”). This Agreement takes effect when you electronically sign the Agreement presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

1. Definitions.

Software as a service consists of system administration, system management, and system monitoring activities that Hing performs for Hing Programs (defined below), and includes the right to use the Hing Programs, Support Services (defined below) for such Hing Programs, as well as any other services provided by Hing, (collectively, the “Services”).

“Hing Programs” refers to the software products owned or distributed by Hing to which Hing grants Customer access as part of the Services, including Program Documentation, and any program updates provided as part of the Services.

“Order Form” refers to the document that describes specifics to the Hing Programs and/or Services make available to the Customer.

“Users”, “End Users” shall mean those individuals authorized by Customer or on Customer’s behalf to use the Services.

The term “Customer Data” refers to the data provided by Customer that resides in Customer’s service environment.

2. Use of the Services.

2.1 Generally. You may access and use the Services in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Services. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Services.

2.2 Your Account. To access the Services, you must have an account associated with a valid email address.

3. Changes.

3.1 To the Services. We may change or remove functionality of any of the Services from time to time.

3.2 To the APIs. We may change or discontinue any APIs for the Services from time to time.

3.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with Section 12.

4. Your Responsibilities.

4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, donors, volunteers, agencies or other End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.

4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

4.3 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Services. You are responsible for End Users’ use of Your Content and the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Services by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or your End Users.

4.4. Marks & Logo Usage. The agreement and guidelines for ChowMatch Trademarks and logo usage are at http://www.chowmatch.com/marks-usage-agreement, as they may be updated by us from time to time.

4.5 Publicity. Customer agrees that whenever references to the technology, software, or “app” are included in press releases, marketing materials, websites, or social media that Customer creates or contributes to, then within Customer’s editorial control Customer shall use commercially reasonable efforts to acknowledge Hing Consulting and ensure that such acknowledgment includes one of the following terms in such materials:

“Powered by ChowMatch”
“Matching Technology powered by ChowMatch”
“Matching App powered by ChowMatch”
“ChowMatch by Hing Consulting”
“ChowMatch services provided by Hing Consulting”

5. Fees and Payment.

Customer will pay for all Services ordered and invoiced by Hing as set forth in Order Form. All fees due under the Agreement are non-cancelable and the sums paid nonrefundable, unless stated otherwise in the Order Form. Amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Initial deposit due and payable on date stated on invoice.

6. Support Services.

The service level agreements we offer with respect to the Services are located at http://www.chowmatch.com/sla/, as may be updated by Hing from time to time.

7. Term and Termination.

“Commencement Date”. The term of this Agreement will commence on the Effective Date.

“Term” means the period commencing on the Commencement Date and continuing for one year.

“Completion Date” means the end of the Term.

Subject to earlier termination as provided herein, the term of this Agreement shall run through the Completion Date, and shall be automatically renewed for additional one-year periods (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. At the end of the Term, all rights to access or use the Services other than as expressly provided in this Agreement shall end.

Termination for Breach. If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, the breaching party is in default and the non-breaching party may terminate the Agreement. Upon termination Customer must pay within 30 days all unpaid amounts which have accrued prior to such end. If Hing ends the Services under the Section 9 (Indemnification), Customer must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the cure period for so long as the breaching party continues reasonable efforts to cure the breach.

If Customer is in default under the Agreement, Customer may not use the Services ordered. In addition, Hing may immediately suspend Customer’s password, account, and access to or use of the Services (i) if Customer fails to pay Hing as required under the Agreement and does not cure within the 30-day cure period.

Upon termination of the Agreement or in the event that Hing discontinues provision of the Services for any reason, Hing will use all reasonable efforts to ensure the return of all Customer Data to Customer. At Customer’s request, and for a period of up to 30 days after the termination of the Agreement, Hing may permit Customer to access the Services solely to the extent necessary for Customer to retrieve Customer Data from the service environment.

Hing has no obligation to retain Customer Data and Customer Data may be irretrievably deleted after 30 days following termination of the Agreement.

Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and others that by their nature are intended to survive.

8. Proprietary Rights, Ownership, and Restrictions.

Hing grants to Customer a non-exclusive, non-assignable, royalty free, limited right to use the services solely for Customer’s operations in the location described in Order Form and subject to the terms of the Agreement. Customer may allow Users to use the Services for this purpose and Customer is responsible for Users’ compliance with the Agreement.

Hing has no obligation to deliver physical copies of the Hing Programs and will not ship copies of the Hing Programs to Customer as part of the Services. Customer’s use of the Hing Programs is limited to the scope and/or duration of the Services granted under this Agreement. Upon termination of the Agreement, Customer’s right to access or use the Hing Programs and the Services shall terminate.

Customer retains all ownership and intellectual property rights in and to Customer Data. Hing or its licensors retain all ownership and intellectual property rights to the Hing Programs. Hing retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.

Third party technology that may be appropriate or necessary for use with some Hing Programs is specified in the Program Documentation or otherwise provided to Customer as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement provided to Customer by Hing and not under the Agreement.

Customer may not:

• remove or modify any program markings or any notice of Hing’s or its licensors’ proprietary rights;

• make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services);

• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (includes but is not limited to review of data structures or similar materials produced by the Hing Programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Hing’s products or services;

• disclose results of any services or program benchmark tests without Hing’s prior written consent; and

• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Hing Programs or materials available, to any third party other than, as expressly permitted under the Agreement.

Restrictions & Obligations:

The rights granted to Customer under the Agreement are also conditioned on the following:

• except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and

• Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Services.

9. Indemnification.

CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD HING HARMLESS FROM DAMAGES, LOSSES, LIABILITIES, AND SETTLEMENTS IN CONNECTION WITH ANY THIRD PARTY CLAIM OR ACTION THAT ARISES FROM AN ALLEGED VIOLATION OF THE TERMS GOVERNING CUSTOMER’S USE OF SERVICES.

HING SHALL INDEMNIFY AND HOLD CUSTOMER HARMLESS FROM LIABILITY TO THIRD PARTIES RESULTING FROM INFRINGEMENT BY THE SERVICE OF ANY UNITED STATES PATENT OR ANY COPYRIGHT OR MISAPPROPRIATION OF ANY TRADE SECRET, PROVIDED HING IS PROMPTLY NOTIFIED OF ANY AND ALL THREATS, CLAIMS AND PROCEEDINGS RELATED THERETO AND GIVEN REASONABLE ASSISTANCE AND THE OPPORTUNITY TO ASSUME SOLE CONTROL OVER DEFENSE AND SETTLEMENT; HING WILL NOT BE RESPONSIBLE FOR ANY SETTLEMENT IT DOES NOT APPROVE IN WRITING. THE FOREGOING OBLIGATIONS DO NOT APPLY WITH RESPECT TO PORTIONS OR COMPONENTS OF THE SERVICE (I) NOT SUPPLIED BY HING, (II) MADE IN WHOLE OR IN PART IN ACCORDANCE WITH CUSTOMER SPECIFICATIONS, (III) THAT ARE MODIFIED AFTER DELIVERY BY HING, (IV) COMBINED WITH OTHER PRODUCTS, PROCESSES OR MATERIALS WHERE THE ALLEGED INFRINGEMENT RELATES TO SUCH COMBINATION, (V) WHERE CUSTOMER CONTINUES ALLEGEDLY INFRINGING ACTIVITY AFTER BEING NOTIFIED THEREOF OR AFTER BEING INFORMED OF MODIFICATIONS THAT WOULD HAVE AVOIDED THE ALLEGED INFRINGEMENT, OR (VI) WHERE CUSTOMER’S USE OF THE SERVICE IS NOT STRICTLY IN ACCORDANCE WITH THIS AGREEMENT.

10. Disclaimers.

HING DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT HING WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT HING DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

11. Limitations of Liability.

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. MAXIMUM LIABILITY FOR EITHER PARTY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO HING FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN EITHER PARTYS’ FAVOR AGAINST THE OTHER PARTY SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

12. Modifications to the Agreement.

We may modify this Agreement at any time by posting a revised version on the ChowMatch Site or by otherwise notifying you by email. We will provide at least 90 days advance notice for adverse changes to any Service Level Agreement. Subject to the 90 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.

13. Miscellaneous.

13.1 Confidentiality. The parties may have access to information that is confidential to one another (“Confidential Information”). The parties agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential Information shall be limited to the terms and pricing under the Agreement, Customer Data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

The parties will hold each other’s Confidential Information in confidence during the Term and for all times thereafter.

Also, the parties agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Nothing in this Agreement is intended to prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

Customer shall not (nor will it permit, as applicable, any of its officers, directors, members, employees, agents, partners, representatives or affiliates to), directly or indirectly, issue any statement or communication to any third party regarding the subject matter of this Agreement without the consent of Hing.

13.2 Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party (each a “Force Majeure Event”). The parties will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than thirty (30) days, either party may cancel unperformed Services upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services.

13.3 Customer Data. In performing the Services, Hing will comply with the Hing Consulting Services Privacy Policy. The Hing Consulting Services Privacy Policy is subject to change at Hing’s discretion; however, Hing policy changes will not result in a material reduction in the level of protection provided for Customer Data during the period for which fees for the Services have been paid.

Hing reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.

Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer Data.

13.4 Use of Data. Hing may compile an aggregate of the customer data and may make such information publicly available, provided that such information does not identify end users of the system.

13.5 Statistical Information. Hing may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or disclose Customer Confidential Information. Hing retains all intellectual property rights in such statistical information.

13.6 Updates; Applicable Terms and Authorization for Auto Updates. Hing may, in its sole discretion, provide, and this Agreement applies to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, “Updates”) that Hing may provide or make available generally to its customers after the date that Services commence, subject to any additional terms and conditions provided by Hing applicable to such Updates. Customer hereby authorizes Hing to, and agree that Hing may, in accordance with Hing’s standard program operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Software upon customer access to the Service or Software without further notice or need for consent. Hing has no obligation to, and nothing in this Agreement may be construed to require Hing to, create, provide, or install Updates.

13.7 Customer Reference. Hing may identify Customer as a recipient of services and use Customer’s name and logo, in its website, in social media, in sales presentations, marketing materials and press releases. Customer will develop a brief customer profile for use by Hing on hingconsulting.com, chowmatch.org, and chowmatch.com for promotional purposes.

13.8. Branding. Hing reserves the right to place the Hing Consulting and ChowMatch name, logo, design, theme, and branding on all editions of the Hing Programs. The Hing Programs allows the addition of a logo and text to the banner which identifies Customer and geographic location.

13.9. Assignment. Hing may assign any of its rights or obligations under this Agreement upon no less than thirty (30) days’ written notice; provided, however, that Hing shall not assign the rights to Customer Data except in connection with the sale (whether by merger, asset sale, equity sale, transfer or otherwise) of (i) Hing, (ii) the Hing Programs or (iii) a portion of Hing or the Hing Programs that would reasonably require the acquirer of said portion to be assigned such rights to the Customer Data. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of Hing, which shall not be unreasonably withheld. The preceding sentence applies to all assignments of rights, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes an agreement comparable in all material respects to those found in this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.

13.10 Dispute Resolution

The Agreement is governed by the substantive and procedural laws of California and the parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco County in California in any dispute arising out of or relating to the Agreement.

13.11 Security

Hing will implement reasonable and appropriate measures to secure Customer’s Content against accidental or unlawful loss, access or disclosure.

Hing will make all reasonable efforts to prevent unauthorized use of the Services.

Hing will notify Customer of any data breach by any unauthorized third party without undue delay after becoming aware of a data breach.

Last Updated May 31, 2018