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This Master Terms of Service (the “TOS”) govern the engagement (the “Engagement”) between TaroWorks LLC (“TaroWorks”), a limited liability company organized under the laws of the State of Delaware, with a principal place of business at 1400 K Street NW, Suite 550, Washington, DC 20005, and your organization (the “Organization“) as set forth in the purchase order form that references the TOS (the “Order Form“). TaroWorks and the Organization shall be referenced herein individually as a “Party” and collectively as the “Parties.” These TOS and the Order Form constitute the entire agreement between the Parties and set out the terms of the Engagement. In consideration of the mutual promises, the Parties agree as follows:
Background. TaroWorks has developed a web-based solution (the “TaroWorks Suite”) that allows Android mobile devices to track completion of assigned jobs and tasks, administer data collection forms and send collected data from the field for the purpose of enabling effective management of field staff and allowing organizations to develop a deeper understanding of clients, performance, and impact on poverty. Organization is interested in licensing TaroWorks Suite to collect data and to manage field staff in disconnected areas on the project set forth in the Order Form (the “Project”) in the locations set forth on the Order Form (the “Territory”) during the Term (as defined in Section 6.1 herein). Specifically, TaroWorks will assist Organization in gathering comprehensive information from both end-clients and field officers, to track, monitor, evaluate, and ultimately improve the services and products for the people it serves in Territory.
TaroWorks employs third-party software in the execution of the Engagement and integration of TaroWorks Suite, to that end:
2.1 Salesforce.com Licenses. Organization is responsible for obtaining licenses from and maintaining access to Salesforce.com (“Salesforce”) for use of the TaroWorks Suite including: (A) Salesforce Enterprise Licenses for access to Salesforce instance (“Enterprise License”) and (B) other Salesforce user licenses such as Partner Community Licenses that Salesforce may require for Organization’s users to access and use the Salesforce instance (“User Licenses”).
(i) Salesforce Enterprise Licenses. Upon written request, TaroWorks will use reasonable efforts to assist Organization with applying for the Salesforce Power of US program which provides Salesforce Enterprise licenses at discounted rates. Organization is responsible for submitting all applications for any Salesforce program.
(ii) Salesforce Partner Community Licenses. If Organization meets the eligibility requirements of Salesforce, TaroWorks, will request on Organization’s behalf that Salesforce donate Partner Community Licenses to provide access by mobile users to Organizations’ Salesforce instance using the TaroWorks Suite software. If Salesforce donates Partner Community Licenses, Organization agrees that it will use donated Partner Community Licenses only in furtherance of the Project and as disclosed to TaroWorks and in accordance with applicable Salesforce terms and conditions.
(iii) If Organization does not meet the eligibility requirements for a Partner Community License donation or if the Salesforce donation is not sufficient to provide access to all TaroWorks Users, Organization is solely responsible for obtaining sufficient Partner Community Licenses for its mobile users to access the Salesforce.com instance using the Taro Works Suite software.
(iv) Organization acknowledges and agrees that, notwithstanding any assistance by TaroWorks in obtaining Salesforce licenses for Organization, Organization will be the licensee and registered user of its Salesforce license and will exclusively control and be solely responsible and liable for:
a) the Salesforce account(s) (“Salesforce Account(s)”).
b) all data collected (including using TaroWorks Suite) and stored on Salesforce’s servers (“Salesforce Data”).
c) adherence to the Salesforce Master Services Agreement, as updated from time-to-time by Salesforce and found on the Salesforce website: www.salesforce.com/company/legal/agreements/.
2.2 As stated in the Salesforce terms and conditions, and as a reminder to Organization, Salesforce shall have the right to terminate access to Salesforce licenses at any time upon written notice, which may come directly to Organization. Salesforce may, in its sole discretion, elect to provision requested products free of charge or on a discounted basis to Organization. It is Organization’s responsibility to act under such notice from Salesforce, including obtaining Salesforce licenses independently of TaroWorks if Organization desires to continue use of TaroWorks.
3.1 TaroWorks grants to Organization a non-exclusive, non-transferable, non-sublicenseable worldwide revocable right and license during the Term to use TaroWorks Suite and for its authorized consultants and users to use TaroWorks Suite solely for the Project and the Organization’s internal purposes as described in Order Form and the TOS (the “TW License”).
3.2 TaroWorks will use reasonable efforts to provide Standard Support Services, including:
Up to one (1) hour of Standard Technical Support each month of the Term without charge for issues escalated by Organization through its designated User Contact (as defined in Section 5.1) with TaroWorks; thereafter, Standard Technical Support will be provided to Organization with a fee as below. “Standard Technical Support” includes:
(i) assisting Organization in setting up its access to Salesforce and to configure Organization’s access to the Salesforce platform to work with the TaroWorks Suite;
(ii) providing a TaroWorks Overview to Organization concerning the TaroWorks Suite through a combination of live and pre-recorded webinars;
(iii) providing an account manager to oversee the relationship with Organization, collect product feedback, and to assist in resolving errors arising from the TaroWorks Suite (and, at TaroWorks’ discretion, in configurations with the Salesforce platform);
(iv) access to the TaroWorks Suite online customer support website at: https://taroworks.zendesk.com to research answers to questions using the TaroWorks Suite customer knowledge database of articles and other information.
Standard Technical Support offered by TaroWorks does not include:
(i) Assistance or support for any products other than the TaroWorks Suite (i.e., mobile software and tools) within the Salesforce platform.
(ii) Assistance with services or technologies, including implementation, administration or use of third-party enabling technologies such as databases, computer networks or communications systems
(iii) Assistance with the implementation of the Salesforce database or other Salesforce functionality including but not limited to migrating data into Salesforce, debugging errors not related to TaroWorks objects and fields, setting up Salesforce object model or other Salesforce specific functionality and development work unless such work has been performed by TaroWorks for an agreed fee charged to Organization.
(iv) Assistance with installation or configuration of non-TaroWorks Suite software or hardware, including computers, hard drives, networks or printers.
(v) TaroWorks is not required to provide any technical support services relating to problems or issues arising out of or from (i) Organization’s use of the TaroWorks Suite in a manner for which it was not designed; (ii) damage to the mobile device on which the TaroWorks Suite is installed; (iii) Organization’s negligence, misuse, or modification of the TaroWorks Suite; and (iv) any versions of the TaroWorks Suite and Salesforce managed package other than the most recent version or other versions listed as supported products on the TaroWorks Suite release page: https://taroworks.zendesk.com/hc/en-us/articles/202261490-TaroWorks-Releases
3.3 Changes to Standard Technical Support.
TaroWorks may modify its TaroWorks Technical Support services from time to time, provided the level of service will not materially decrease during the Term. TaroWorks is not required to provide any technical support services that are no longer offered as a result of such modification.
3.4 Fees and Expenses.
(i) TaroWorks will offer one (1) hour of Standard Technical Support each month to Organization at no cost. Time will not be counted for bugs that are systemic issues in the TaroWorks platform.
(ii) For any additional Standard Technical Support beyond the first one (1) hour per month requested by the User Contact for Organization, TaroWorks will charge Organization $175 (USD) per hour.
(iii) All Standard Technical Support provided to Organization by TaroWorks will be recorded and calculated by TaroWorks in fifteen (15) minute increments during each month of the Term, and invoiced monthly or at TaroWorks’ discretion.
(iv) For any Standard Technical Support or training done on site, the cost of training room rental, refreshments and other onsite expenses as well as the cost of the TaroWorks staff/trainer’s travel to and from the site, and accommodations while conducting the Standard Technical Support or training will be paid directly by Organization or reimbursed by Organization, as set forth in the Order Form.
3.5 Standard Technical Support Details.
(i) Support Hours: TaroWorks technical support personnel will be available to work with Organization on support issues during support team’s business hours (generally 10 am to 6 pm East Africa Time).
(ii) Response Time: TaroWorks will use commercially reasonable efforts to respond to each new support request within 2 business days from the time the request is received under our free support plan – or within 1 business day from the time the request is received if paid support is being provided.
(iii) Cooperation: TaroWorks must be able to reproduce errors in order to resolve them. Therefore, Organization agrees to cooperate and work closely with TaroWorks to reproduce errors, including conducting diagnostic or troubleshooting activities as requested. Subject to Organization’s approval, TaroWorks Suite users may be asked to provide remote access to their Salesforce instance or to the mobile devices on which the TaroWorks Suite is installed for troubleshooting purposes, for the amount of time needed to resolve the issue.
(iv) Submitting support issues: Organization’s User Contact can submit a request for assistance from TaroWorks technical support (“TaroWorks Technical Support”) by filing a support request via the TaroWorks Technical Support website at: https://taroworks.zendesk.com/hc/en-us/requests/new. The issue for which support is being requested will be assigned a case number for tracking purposes. Organization’s User Contact will be asked to use that case number whenever referring to any support issue. TaroWorks will prioritize the issue and then determine next steps
(v) At the election of Organization, and for an additional fee, TaroWorks will provide “Premium Support” services as set forth in Organization’s Order Form.
(vi) Organization shall ensure all users adhere to the most up-to-date TaroWorks End-User License Agreement (“TaroWorks EULA”) as provided, and updated from time-to-time, at www.taroworks.org/EULA.
4.1 By using TaroWorks Suite, Organization is using several open source codes that are seamlessly integrated into the TaroWorks Suite. TaroWorks recognizes the developers’ contribution and has provided a list of copyrights and license language, where required, in the TaroWorks EULA. A copy of sample open source software integrated in to the TaroWorks Suite may be obtained independently or upon written request to TaroWorks.
4.2 TaroWorks Suite uses cookies and integrates Google Analytics. Please see the TaroWorks EULA for the Google Analytics Terms of Service, and more information on how Google Analytics uses data. The TaroWorks Privacy Policy may be found on the TaroWorks website at www.taroworks.org/privacy.
Organization will:
5.1 Designate one user team member to provide day-to-day technical and user support to all users of TaroWorks Suite and any TaroWorks functionality that works with the Salesforce platform (“User Contact”);
5.2 Ensure that its designated User Contact (i) is familiar with all publicly available TaroWorks training materials and video tutorial and have a fundamental understanding of the Salesforce platform and administration; and (ii) have a basic understanding of any problem that is the subject of a support case and have the ability to reproduce the problem and send stack traces and log files in order to assist TaroWorks in diagnosing and resolving or working around the issue;
5.3 Obtain a Salesforce License and provide TaroWorks with access to Organization’s Salesforce instance as necessary for TaroWorks to assist in configuration (and obtain any necessary permissions from Salesforce to provide TaroWorks with access);
5.4 Ensure its consultants and users abide by all End-User License Agreements including TaroWorks EULA found at www.taroworks.org/EULA.
5.5 Provide TaroWorks feedback on the TaroWorks Suite and make suggestions for improvements and new features during monthly conference calls;
5.6 Permit TaroWorks to set up automated weekly reports from Organization’s Salesforce instance to report on Organization’s number of active mobile users;
5.7 Share impact numbers with TaroWorks each calendar quarter, including total number of (i) micro-entrepreneurs (including farmers) who were supported and (ii) number of beneficiaries served by Organization’s program/project using TaroWorks; Organization shall not share personally identifiable information, and Organization consents to TaroWorks sharing this information with TaroWorks’ donors;
5.8 Report promptly any bugs and errors associated with using the TaroWorks Suite to TaroWorks’ customer support contact;
5.9 Purchase and maintain, at Organization’s expense, all computers, equipment, android-enabled mobile devices, and connectivity needed to use the TaroWorks Suite;
5.10 Notify TaroWorks promptly if Organization’s wishes to change the Project or purpose of its use of the TaroWorks Suite as described in the TOS (note: this may result in changes to the ability to use Salesforce Licenses based on the Salesforce Community Partner License rules);
5.11 Use the TaroWorks Suite only in the Territory and notify TaroWorks promptly if Organization’s wishes to change or add an additional location; and
5.12 Comply with all relevant data privacy laws as a Data Controller.
A TaroWorks Suite User is defined as any user accessing TaroWorks functionality in Salesforce or on the mobile device (“TaroWorks User”). Organization will pay TaroWorks a fee for the use of the TaroWorks Suite based on the number Organization’s staff or affiliates who are TaroWorks Users.
6.1 License Fees; Increases. In consideration of the TW License and TaroWorks services, Organization agrees to pay TaroWorks the nonrefundable fees (“License Fees”) as described in Organization’s Order Form. TaroWorks may increase the License Fees for any renewal Term by giving notice at least sixty (60) days before the renewal Term begins.
6.2 Invoice; Payment. Organization will pay the License Fees in U.S. Dollars within thirty (30) calendar days after the date of TaroWorks’ invoice. For any renewal term, TaroWorks will invoice Organization for the License Fees on or about thirty (30) days before the renewal Term begins, and Organization will pay the amount owed by the date the renewal Term begins. TaroWorks may charge Organization interest on any unpaid amounts at the rate of one-and-one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. In addition, if any amount remains unpaid after the date due, TaroWorks may at any time, in TaroWorks’ discretion: (i) suspend Organization’s access to the TaroWorks Suite until Organization pays in full all outstanding amounts (including any interest charged) or (ii) permanently terminate Organization’s access to TaroWorks.
6.3 TaroWorks will issue an initial invoice for the amount set forth in the Order Form. Organization will make payments to TaroWorks in U.S. Dollars within thirty (30) calendar days of each invoice date. All License Fee increases during a Term will be prorated (based on the number of months left during the Term). For example, if the prior License Fee increase occurs halfway through the Term, Organization will be invoiced for 50% of that total incremental amount for the remainder of the Term. Organization will be obligated to pay the license fee for the highest threshold level reached during the Term even if the number of TaroWorks Users subsequently declines during the same Term. At the start of the next Term, Organization will be charged the full yearly License Fee for the number of TaroWorks Users at the time the new Term begins. If the number of TaroWorks Users remains the same from one Term to the next, the TaroWorks License Fee for year one of the Engagement will automatically renew at the end of the Term for each subsequent year at the highest previous threshold rate or at a new base License Fee pricing structure to be decided by TaroWorks and communicated to Organization at least sixty (60) days before the end of the then-current Term. TaroWorks may increase License Fees for any renewal Term as described in Section 4.2.
6.4 Taxes. Organization is solely responsible for paying all taxes, assessments, tariffs, duties and other fees imposed, assessed or collected by or under the authority of any governmental body arising from the project, except any taxes assessed upon TaroWorks’ net income (collectively, “Taxes”). If TaroWorks is required to pay Taxes directly, Organization will promptly reimburse TaroWorks for any amount paid by TaroWorks. If Organization is required by law to deduct any Taxes from any amount payable under this Engagement: (i) the sum payable to TaroWorks will be increased so that, after making all required deductions (including deductions applicable to additional sums payable under this Section), TaroWorks receives an amount equal to the sum TaroWorks would have received had no deductions been made; (ii) Organization will make such deductions; (iii) Organization will pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable laws; and (iv) within thirty (30) days after the payment date, Organization will furnish to TaroWorks the original or a certified copy of a receipt evidencing the payment.
7.1 Subject to the license expressly provided in the TOS, nothing in the TOS transfers or assigns to Organization any of TaroWorks’ intellectual property rights in the services provided, the interface, the marks, or TaroWorks’ other technology or the respective intellectual property rights in any service data of Organization.
7.2 TaroWorks. TaroWorks owns and retains all rights, including trademarks, copyrights and other proprietary rights, and title to the TaroWorks Suite, and all software, tools, forms, documents, training materials and mobile technologies provided by TaroWorks under the Engagement (“IP”), including all improvements to and derivative works of the IP.
7.3 Organization. Organization retains all rights, including copyrights and other proprietary rights, and title to all data, documents, materials and other information that Organization owns and chooses to disclose to TaroWorks. Organization’s right to all data (whether personally identifiable or otherwise) that is collected through or uploaded or transferred to the Salesforce platform or another platform will be governed by the agreement between Organization and Salesforce and any terms of use associated with the platform.
8.1 Term. The Engagement: (i) will begin as of the date of execution of the Order Form (the “Effective Date”); (ii) continue for one year after Effective Date; and (iii) renew automatically for additional successive one-year periods unless: (a) a party gives notice of non-renewal to the other party at least thirty (30) days before the end of the then-current Term; or (b) the Engagement is terminated earlier in accordance with the TOS. “Term” means the initial and any renewal periods.
8.2 Termination. A party may terminate the Engagement if the other party breaches any material term and does not cure the breach within thirty (30) days after receipt of a written notice of breach. In addition, TaroWorks may terminate the Engagement immediately, without providing notice, if TaroWorks reasonably believes or a court holds that any act or omission of Organization may violate any applicable law. Upon termination or expiration of the Engagement, or upon the other party’s earlier request, a party will deliver to the other party all of the other party’s confidential information and other property. In addition, (i) TaroWorks may terminate the Engagement at any time for any reason upon thirty (30) days’ notice to Organization provided TaroWorks gives Organization a pro rata refund of any License Fees for the remainder of the then-current Term and (ii) Organization may terminate the Engagement at any time for any reason upon sixty (60) days’ notice to TaroWorks but Organization will not be entitled to a refund of any Licensee Fees for the remainder of the then-current Term. If TaroWorks terminates the Engagement, the pro rata refund will be determined by dividing the annual fee by twelve months; any partial month (or partial 30-day period) will be counted as a full month (or full 30-day period).
TAROWORKS WILL NOT BE LIABLE TO ORGANIZATION OR TO ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY (INCLUDING IN CONTRACT, TORT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY)) FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, CONTINGENT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ENGAGEMENT OR ANY SERVICES, TOOLS OR SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA, USE OR BUSINESS; DELAYS, INCONVENIENCE OR BUSINESS INTERRUPTION; OR FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS), WITHOUT REGARD TO WHETHER TAROWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THE ENGAGEMENT AND APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THE TOS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TOS, TAROWORKS’S LIABILITY UNDER WILL NOT EXCEED THE LICENSE FEES PAID BY ORGANIZATION TO TAROWORKS IN THE CURRENT TERM YEAR.
TAROWORKS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE IN CONNECTION WITH THE ENGAGEMENT. TAROWORKS AND ALL SOFTWARE, DASHBOARD AND DOCUMENTS ARE PROVIDED BY TAROWORKS AND ITS CONTRIBUTORS “AS IS” AND “AS AVAILABLE.” TAROWORKS DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, IMPLIED WARRANTIES OF CONDITIONS, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.1 TaroWorks will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the data Organization uploads to Salesforce using TaroWorks. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of data by TaroWorks personnel except (a) to provide the services and prevent or address service or technical problems, (b) as compelled by law or (c) as expressly permitted in writing.
11.2 For the purposes of this Section:
(i) “Personal Data” means any information relating to an identified or identifiable natural person.
(ii) “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; and “Process” and “Processed” shall be interpreted accordingly.
(iii) “EU Data Protection Laws” means the e-Privacy Directive, the GDPR and the e-Privacy Regulation (once it takes effect) and any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any one of them (in each case as amended, consolidated, re-enacted or replaced from time to time);
(iv) “e-Privacy Directive” means Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of Personal Data and the protection of privacy in the electronic communications sector;
(v) “e-Privacy Regulation” means Regulation 2017/003 of the European Parliament and of the Council concerning the respect for private life and the protection of Personal Data in electronic communications;
(vi) “GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data;
11.3 Organization (“Data Controller”) is the data controller of all Personal Data, and determines the purposes and means of the processing of Personal Data. Organization is responsible for obtaining and maintaining all required consents of any data subject for which it is uploading Personal Data to Salesforce via TaroWorks.
11.4 TaroWorks (“Data Processor”) serves as the data processor under the TOS. TaroWorks will process Personal Data on behalf of the Data Controller as necessary to perform the Services under the TOS and as further specified by Organization.
11.5 To the extent the Data Processor Processes Personal Data on behalf of the Data Controller, it shall:
(i) Process the Personal Data only on documented instructions from the Organization/Data Controller, including in the case of Personal Data subject to the EU Data Protection Laws with regard to transfers of Personal Data to Third Countries or an international organization, unless required to Process such Personal Data under a law to which the Data Processor is subject; in such a case, the Data Processor shall inform the Organization/Data Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;
(ii) ensure that its personnel authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(iii) implement appropriate technical and organizational security measures, including, as appropriate, (i) the pseudonymization of Personal Data; (ii) ensuring the ongoing confidentiality, integrity, availability and resilience of Processing systems and services; (iii) restoring the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and (iv) regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing;
(iv) upon written request, and subject to additional fee, and taking into account the nature of the Processing, assist the Organization/Data Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests from the data subject, including for exercising data subject rights laid down in the EU Data Protection Laws;
(v) promptly notify the Organization/Data Controller (including further information about the breach provided in phases promptly as more details become available) in writing upon becoming aware of any improper, unauthorized, or unlawful access to, use of, or disclosure of, or any other event which affects the availability, integrity or confidentiality of Personal Data which is Processed by Data Processor under or in connection with the TOS. The Data Processor shall be obliged to provide the Data Controller with all information necessary for the compliance with the Data Controller’s obligations pursuant to EU Data Protection Laws;
(vi) upon written request, and subject to additional fee, assist the Organization/Data Controller in ensuring compliance with the obligations to (i) implement appropriate technical and organizational security measures; (ii) notify (if required) Personal Data breaches to regulators and/or individuals; and (iii) conduct data protection impact assessments and, if required, prior consultation with regulators;
(vii) upon written request, delete or return all the Personal Data to the Organization/Data Controller after the end of the provision of services relating to Processing, and delete existing copies of the Personal Data unless applicable law requires storage of the Personal Data;
(viii) make available to the Organization/Data Controller all information necessary to demonstrate compliance with the obligations laid down in this Section 9 and EU Data Protection Laws, including in the case of Personal Data subject to the EU Data Protection Laws allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Organization/Data Controller.
11.6 TaroWorks/the Data Processor shall immediately inform the Organization/Data Controller if, in its opinion, an instruction of the Organization/Data Controller infringes the EU Data Protection Laws.
(i) Changes in EU Data Protection Laws. TaroWorks /the Data Processor shall take all steps reasonably requested by the Organization/Data Controller to ensure that the Organization/Data Controller’s Personal Data subject to the EU Data Protection Laws is processed in compliance with the GDPR, including (i) any guidance on the interpretation of its provisions; or (ii) if changes to the membership status of a country in the European Union or the European Economic Area require modification to the TOS, TaroWorks/the Data Processor will negotiate such modifications in good faith.
(ii) International Transfers. In relation to Personal Data subject to the EU Data Protection Laws, TaroWorks/the Data Processor will not Process such Personal data in, or transfer such Personal Data to, a Third Country except where such Processing or transfer is in accordance with the conditions set out in Chapter V of the GDPR. “Third Country” means each country outside of the scope of the data protection laws of the European Economic Area, excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time.
11.7 Sub-Processing.
(i) In relation to Personal Data subject to the EU Data Protection Laws, before allowing any sub-processor to Process any such Personal Data related to the Engagement, and prior to any changes concerning the addition or replacement of any sub-processor, the TaroWorks/Data Processor shall inform the Organization/Data Controller in writing. The Organization/Data Controller will have fourteen (14) calendar days from the date of receipt of the notice to approve or reject the change. In the event of no response from The Organization/the Data Controller, the sub-processor will be deemed accepted.
(ii) In the event that TaroWorks/the Data Processor engages a sub-processor for carrying out specific Processing activities on behalf of the Data Controller, where that sub-processor fails to fulfil its obligations, TaroWorks/the Data Processor shall remain fully liable under the EU Data Protection Laws to the Organization/Data Controller for the performance of that sub-processor’s obligations.
(iii) Organization accepts and acknowledges that the TOS do not govern data processing completed by Salesforce, which is governed by the Salesforce Master Services Agreement. Salesforce shall not be considered a sub-processor under the TOS.
(iv) Limitation on Liability as Data Processor. TaroWorks/the Data Processor and its parent company’s total liability for all claims from Organization arising out of or related to the TOS is subject to Section 9 “Limitation of Liability”.
12.1 Organization shall comply with all applicable laws governing the Engagement, including without limitation:
(i) FCPA. Each party represents that it is familiar with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) prohibiting the paying or giving of anything of value either directly or indirectly, to an official of a foreign government, foreign political party or official thereof, or any candidate for foreign political office, or any official of a public international organization, for the purpose of influencing an act or decision in his/her official capacity, or inducing him/her to use his/her influence with the foreign government (or public international organization, as the case may be), to assist either party in obtaining or retaining business for or with, or directing business to, any person, or securing any improper advantage. Each party agrees to comply with these anti-bribery provisions of the FCPA and to take no action that might cause either party to be in violation of the FCPA. In addition, each party agrees not to make any payments that would violate local law. Each party agrees immediately to notify the other party of any request it receives to take any action that might constitute a violation of the FCPA or local law, as well as of any action that might be construed as a violation of the FCPA or local law.
(ii) Terrorist Activities. Each party warrants that it has not provided and will not knowingly provide, material support or resources to any individual or entity that it knows, or has reason to know, is or acts as an agent for an individual or entity that advocates, plans, sponsors, engages in, or has engaged in terrorist activity. Such individuals and entities may be, but are not necessarily, listed by the United Nations Security Council Resolutions 1267 and 1390; the list promulgated by the European Union pursuant to EU Regulation 2580; the Annex to Executive Order 13224, or may be designated by the United States, under any of the following authorities: Section 219 of the Immigration and Nationality Act (as amended 8 U.S.C. 1189), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.) or Section 213 (a)(3)(B) of the Immigration and Nationality Act, as amended by the USA PATRIOT Act of 2001 (8 U.S.C. 1182).
(iii) Unlawful Activity. Each party warrants that the property, including funds, it uses in connection with any aspect of the Engagement will not represent proceeds of unlawful activity and neither party shall attempt to conceal or disguise the origin of any proceeds of unlawful activity.
12.2 Representations and Warranties; Indemnity. Organization hereby represents and warrants that: (A) it has the full authority to enter into the Engagement and perform its obligations under the TOS; (B) it is solely responsible for compliance with all laws, rules and regulations applicable to the collection, transmission and storage of data (including personally-identifiable data) as contemplated under the TOS; and (C) it has the right to provide all data provided or made accessible to TaroWorks in connection with the TOS. Organization will indemnify TaroWorks against any liability, damage, loss or expense (including reasonable attorneys’ fees) incurred by TaroWorks based on a third-party claim arising from Organization’s breach of its representations, warranties, or obligations under the TOS.
12.3 Confidentiality. TaroWorks shall treat all data provided by Organization as confidential. Neither party may disclose the contents of the Engagement or the TOS and any nonpublic information of the other party or use such information for any purpose other than fulfilling its obligations under the TOS.
13.1 Publicity/Trademarks. Neither party will permit or generate any publicity, press release, advertising or promotion concerning the Engagement, the TOS nor any aspect of the relationship with the other party without the prior written consent of the other party except as expressly permitted under the TOS. Neither party will use the name, emblem, logo, or marks of the other party without the prior written consent of the other party, including but not limited to any reference on any website or blog. Notwithstanding the foregoing, TaroWorks may list Organization as a customer on its website and marketing materials and Organization agrees to act as a reference for the TaroWorks Suite, including participating in mutually agreed promotional activities and TaroWorks case study. Organization agrees that TaroWorks may use Organization’s information and/or statistics provided to TaroWorks in its publications, press releases, public documents, and quarterly and annual reports so long as TaroWorks obtains Organization’s written consent before publication.
13.2 Nature of the Relationship. Nothing in the TOS will be construed to create a partnership, joint venture, employment, agency or similar relationship between the parties. Neither party has the right to bind the other.
13.3 Governing Law; Venue; Dispute Resolution. The Engagement and the TOS are governed by and should be construed in accordance with the laws of the District of Columbia without regard to any conflicts of law provisions that would permit the law of any other jurisdiction to govern. The parties agree to use their best efforts to resolve disputes arising under the Engagement or the TOS through amicable negotiations. Any disputes, controversies or claims arising between the parties under the TOS that cannot be resolved in negotiations between the parties shall be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (unless otherwise agreed upon by the parties) in force at the date of request for arbitration, which rules are deemed incorporated by reference into this clause. Such arbitration shall take place in Washington, DC (unless otherwise agreed upon in writing by the parties), shall be conducted in the English language, and shall be the sole and exclusive forum for the resolution of disputes; the decision of the arbitrator(s) shall be final and binding on the parties. The arbitrators must have at least 10 years’ experience in the subject matter of the Engagement and render a written decision based on findings of fact and conclusions of law consistent with the terms of the Engagement, the TOS, and the governing law. The parties will use reasonable efforts to expedite any arbitration so that it is concluded within ninety (90) days. Judgment on the award may be entered in any court having jurisdiction thereof. Each party hereby irrevocably consents to the service of process in any action or proceeding under the Engagement or TOS by sending copies thereof to the party’s address set forth in the “Notices” section. Notwithstanding the foregoing, TaroWorks may bring a claim in any court of competent jurisdiction as it determines is necessary to protect its intellectual property and other rights in connection with the TaroWorks Suite.
13.4 Changes to TOS. TaroWorks reserves the right to amend the TOS from time to time as it deems appropriate. TaroWorks will provide notice to Organization when such amendment occurs. Notices. Notices under the TOS must be in writing and be sent by recognized overnight courier, email, or other method for which the sender has written or electronic proof of delivery to the other party at its address below (or to another mailing or email address designated by a party in a notice. Notices will be considered given when delivered (as evidenced by delivery receipt or other documentation).
For TaroWorks: Brent Chism at brent@taroworks.org.
For Organization: To the address designated on the Order Form
13.5 Entire Agreement; Assignment. The Order Form and the TOS constitute the entire agreement between the parties and supersedes all (oral and written) discussions, agreements and promises between the parties concerning its subject matter. Organization may not assign this Engagement and any rights and any attempted assignment in violation of this provision will be null and void; TaroWorks may assign the Engagement at any time.
13.6 Waiver. The waiver of any term of the TOS must be in writing and any waiver in one instance will not be considered a waiver in any other instance, whether similar or different.
13.7 Severability. If any provision of the TOS is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
13.8 Headings; Including. Section headings in the TOS are for convenience and reference only, and should not be used to interpret the meaning, construction or scope of any of the provisions. The word “including” is intended to be illustrative and means “including, but not limited to.”
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