Thank you for your interest in receiving an Opportunity Analysis from MarketSmart, L.L.C. By clicking “I Agree – Upload” in the Opportunity Analysis page and submitting a data file, you acknowledge that you have read and agree to the Opportunity Analysis Terms.

Opportunity Analysis Terms

Thank you for your interest in receiving an Opportunity Analysis from MarketSmart, L.L.C (“MarketSmart”). MarketSmart’s “Opportunity Analysis” models your organization’s planned and major giving potential, and provides projections for the results of conducting proactive planned and major gift marketing campaigns using MarketSmart’s proprietary marketing and technology services (the “MarketSmart Services”). BEFORE SUBMITTING ANY DATA TO MARKETSMART FOR THE OPPORTUNITY ANALYSIS, YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY, THESE “TERMS”). CLICKING “I AGREE – UPLOAD” (OR A BUTTON CONTAINING ANY EQUIVALENT EXPRESSION) MEANS THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THESE TERMS ON BEHALF OF YOUR ORGANIZATION. The individual accepting these Terms represents and warrants to MarketSmart that he or she is lawfully able to enter into contracts (e.g., is not a minor). The individual accepting these Terms and submitting data to MarketSmart is doing so for the benefit of a legal entity, such as the company or organization that he or she works for; accordingly, such individual further represents and warrants to MarketSmart that he or she has the legal authority to bind that entity to these Terms.

1. Data File. DO NOT PROVIDE ANY PERSONALLY IDENTIFIABLE OR OTHER IDENTIFYING INFORMATION OF ACTUAL OR PROSPECTIVE DONORS TO MARKETSMART IN CONNECTION WITH THE OPPORTUNITY ANALYSIS. You must ensure that the data file you submit to MarketSmart (the “Data File”) does not contain any names, email addresses, mailing addresses, or any other information that identifies or is capable of identifying an individual. You grant MarketSmart and its service providers a worldwide, non-exclusive, non-sublicensable, non-transferable (except as specifically set forth in these Terms), license to use the Data File to generate the Opportunity Analysis. You represent and warrant to MarketSmart that you have all rights and permissions necessary to provide the Data File to MarketSmart for purposes of the Opportunity Analysis.

2. Disclaimer. MARKETSMART MAKES AND YOU RECEIVE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND REGARDING THE OPPORTUNITY ANALYSIS, MARKETSMART SERVICES, OR ANY OTHER MATTER, AND MARKETSMART SPECIFICALLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SECURITY, OR FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND ANY WARRANTY OR GUARANTEE AS TO THE RESULTS OF THE OPPORTUNITY ANALYSIS, MARKETSMART SERVICES, OR AMOUNTS OF ANY DONATIONS TO BE RECEIVED AS A RESULT OF USING THE MARKETSMART SERVICES. NO STATEMENT, WHETHER MADE BY MARKETSMART’S EMPLOYEES, AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY MARKETSMART FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF MARKETSMART IN CONNECTION WITH THE OPPORTUNITY ANALYSIS, THE MARKETSMART SERVICES, OR THESE TERMS.

3. Limitations on Liability. IN NO EVENT WILL MARKETSMART BE LIABLE TO YOU OR ANY THIRD PARTY UNDER THESE TERMS FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, BUSINESS DISRUPTION OR LOSS OF DATA OR USE OF DATA, EVEN IF MARKETSMART OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. IN NO EVENT WILL MARKETSMART’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE OPPORTUNITY ANALYSIS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID BY YOU TO MARKETSMART FOR THE OPPORTUNITY ANALYSIS.

4. Term and Termination. These Terms are effective on the date you click “I AGREE – UPLOAD” (or a button containing any equivalent expression) and will continue until the date on which the Opportunity Analysis for your Data File is delivered to you by MarketSmart. Additionally, MarketSmart may terminate these Terms for any reason upon written notice to you. Sections 2 – 5 will survive termination of these Terms for any reason.

5. General. These Terms, and any claim, controversy, or dispute arising under or related to these Terms or the Opportunity Analysis, shall be governed in all respects by the laws of the State of Maryland, USA, without giving effect to principles of conflicts of laws. The parties to these Terms are independent contractors and nothing in these Terms shall be deemed to create a joint venture, partnership, or agency relationship between the parties. You and your organization may not assign these Terms, in whole or in part, to any third party without the prior written consent of MarketSmart. MarketSmart may assign these Terms in its sole discretion. These Terms supersede all previous agreements, whether oral or written, with respect to their subject matter. In the event that the parties have entered into a separate non-disclosure agreement governing the parties’ discussion of the Opportunity Analysis and/or a possible business transaction or relationship with each other involving the MarketSmart Services, such non-disclosure agreement will be deemed to supplement these Terms; provided, however, that in the event of any conflict or inconsistency between such non-disclosure agreement, on the one hand, and the first two sentences of Section 1, or Section 2, or Section 3 of these Terms, on the other hand, the first two sentences of Section 1, Section 2, or Section 3 of these Terms (as applicable) will control as to such conflict or inconsistency. In the event that you enter into a MarketSmart Services Agreement or an equivalent contract providing for your use of the MarketSmart Services (a “Services Agreement”), such Services Agreement will govern your access to and use of the MarketSmart Services. These Terms may only be changed in a writing signed by authorized representatives of each party.