SITE User Agreement
This Site User Agreement (the "Agreement") is entered into as of the date that you digitally sign it (the “Effective Date"), between you ("Subscriber"), and Advocacy Hub, LLC ("Licensor"), a Virginia Limited Liability Company. For purposes of this Agreement, Subscriber and Licensor each may be referred to individually as a "Party" and together as the "Parties."
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
"Authorized Users" shall mean Subscriber's employees and independent contractors working for Subscriber (whether as a volunteer or for compensation) in the ordinary course of Subscriber's business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Services and identified to the Licensor in writing.
“Public Users” shall mean members of the general public who may (i) visit the website created as part of the Services; (ii) obtain information from the Services; (iii) provide information to Subscriber through the Services and (iv) make Donations through the Services.
"Services" shall mean Licensor's Web, email, and database services or other designated websites or IP addresses made available to Subscriber in written form or online, subscribed to by Subscriber hereunder.
"Services Start Date" shall be the date in which the Subscriber gains access to the Services.
"Fees" shall mean the fees payable pursuant to Section 3 hereof.
"Subscriber Data" means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to Licensor in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Services (including any Authorized User).
"Subscriber Marks" shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
"Term" shall mean the period beginning on the Effective Date and ending on the Termination Date, as applicable.
“Donations” shall mean any monetary gift or contribution to the Subscriber’s Services as facilitated by the Licensor and subject to the reporting obligations under applicable Federal and State election laws and regulations of both the Federal and State Election Commissions.
Purpose. The purpose of this Agreement and the Services provided herein is to govern the relationship between Licensor, Subscriber and its Authorized Users, and facilitate an effective tool whereby public users can visit the website created for Subscriber as part of the Services and provide such public users the ability to obtain information, provide information and make Donations to the Subscriber’s political cause.
License to Receive the Services.
Grant. Licensor hereby grants the Subscriber a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to use the Services within the United States, and to permit Authorized Users to access and use the Services, subject to the terms and conditions of this Agreement. All rights in the Services not expressly granted hereunder are reserved to Licensor.
Scope. The license granted to Subscriber hereunder is solely for Subscriber’s internal business purposes and is limited to the access, display, and use of the Services by only an Authorized User. Each Authorized User may access, display, and use the Services. Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Services, in whole or in part, beyond the number of Authorized Users identified. Subscriber may add additional Authorized Users by providing written notice to and obtaining approval from the Licensor. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Services by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Licensor promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Services. Nothing in this Agreement shall obligate Licensor to continue providing access to any Services beyond the date when Licensor ceases providing such Services to subscribers generally.
Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Services, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to (including any Authorized User):
Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Services;
Modify, translate, adapt, alter, or create derivative works from the Services;
Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Services;
Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Services to any third party;
Harvest, collect, gather, or assemble information or data regarding other subscribers;
Transmit through or post on the Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
Interfere with or disrupt the integrity or performance of the Services or the data contained therein;
Attempt to gain unauthorized access to the Services, computer systems, or networks related to the Services; or
Harass or interfere with another subscriber or end-user’s use and enjoyment of the Services.
Term. The term of the Services provided under this Agreement will commence as of the Services Start Date and will continue for one calendar year (the “Term”). After the Term, the parties may discuss and negotiate the potential of entering into a new Agreement, and Licensor expressly reserves the right to impose a fee for the Services in any future Agreement.
Services Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under this Agreement, Subscriber shall permit Public Users to make donations to Subscriber through the Services, and shall allow Licensor to take (retain) certain fees related to Licensor facilitating such donations as provide herein (“Licensor Fees”).
Contributions. We anticipate that Subscriber’s use of the Services will be useful in facilitating Donations to Subscriber’s political party or campaign. Licensor will retain 20% of the gross donated amount of any Public User made through the Services, and such fees shall constitute the Licensor Fees. The Licensor Fees are the total charges that Licensor charges to the Subscriber in exchange for providing the Services. The Licensor Fees are inclusive of all credit card processing fees. The Licensor Fees will be retained and kept by Licensor exclusively, and Subscriber shall have no right to any such additional funds. The remaining 80% of the gross donated amount of any Public User made through the Services will be remitted to the Subscriber in a commercially reasonable manner.
Access and Reporting.
Service. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Services. Except as expressly stated herein, Subscriber is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company) to access and/or use the Services; (ii) allow access to or use of the Services outside of the United States of America (including any Authorized User).
Delivery and Acceptance. Licensor will make the Services available to Subscriber. The Services will be deemed accepted upon the Services Start Date. Any updates, bug fixes, or upgrades ("Corrections") to the Services will be deemed accepted by Subscriber on the day such Corrections are first made available to Subscriber or accessed by Subscriber, whichever is earlier.
Reporting. Subscriber expressly agrees to comply with any and all reporting obligations under all applicable Federal and State election laws and regulations of both the Federal and State Election Commissions with regard to the acceptance of these Donations, including reporting the total amount contributed through Licensor’s website, inclusive of the Licensor Fees, not just the amount received by Subscriber. In addition, Subscriber shall timely, and in compliance with all applicable local, state and federal laws, make and provide any and all additional and other reports as necessary or required related to the Services or Donations received by the Subscriber.
Audits and Inspections.For the purpose of verifying compliance with this Agreement, Licensor (and Licensor's authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber's business, to audit and inspect from time to time Subscriber's books and records relevant to the Services and to observe the use made of the Services and the manner in which each Authorized User accesses the Services. If such audit or inspection pursuant to this Section indicate that Subscriber is not in compliance with this Agreement (such as more Authorized Users accessing the Services than permitted and/or purchased by Subscriber), Subscriber shall pay Licensor the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number).
Copyright Protection; Use Restrictions; Subscriber License Grant.
Subscriber agrees that the Services and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor's licensors. The works and databases included in the content of the Services are protected by applicable copyright laws. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Services are granted to Subscriber, and all such rights are hereby expressly reserved.
Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber's business may be Authorized Users.
Subscriber Information and Data submitted by Subscriber to the Services, whether posted by Subscriber or by an Authorized User, may be shared to the affiliated organization. Additionally, Licensor may collect and provide certain Authorized User registration and statistical information, such as usage or Authorized User traffic patterns, in aggregate and anonymized form to third parties, provided that such information does not identify any Authorized User or Subscriber and contains no personally identifying information. Licensor may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
Licensor will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Licensor will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.
Amendment. With the exception of the notice requirements outlined in Section 4(e) above, if Subscriber wishes to amend this Agreement in any way, Subscriber shall inform Licensor of such changes no later than thirty (30) days before the date in which the change is purported to take effect, and this Agreement will be deemed amended accordingly.
Termination. This Agreement may be terminated as follows:
This Agreement, and the licenses granted hereunder, shall automatically terminate at the conclusion of the Term, or
If Subscriber commits a material breach of this Agreement, Licensor may immediately terminate this Agreement, with or without prior notice and with or without opportunity to cure, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such notice of termination by Licensor; or
If either Party commits a non-material breach of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching Party ("Notice of Breach"), the Party giving such notice may then deliver a second written notice to the breaching Party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; or
If either Party wishes to terminate this Agreement for convivence, it may do so by providing ninety (90) written notice to the other party, and upon the conclusion of such notice period, this Agreement, and the licenses granted hereunder, will terminate.
Warranties; Disclaimer. Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required Board of Directors' or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICES, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, attorneys' fees, against Licensor in any way related to Subscribers’ use of the Services. Subscriber will also defend, indemnify, and hold Licensor harmless from and against any and all claims, fines, sanctions or other monetary obligations, including, without limitation, attorneys' fees, whether under civil or criminal law, based upon Subscriber’s failure to properly report, manage, reject or return any political Donation as required under all applicable Federal and State laws and regulations of both the Federal and State Election Commissions.
In the event a court of competent jurisdiction makes a determination that the Services infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Licensor determines that the Services likely infringes or otherwise violates such third party's foregoing intellectual property rights, Licensor, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Services so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating Services, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Subscriber to continue using the allegedly infringing or violating portion of the Services; or (d) revoke the license to the allegedly infringing or violating Services and provide a pro rata refund to Subscriber for all fees prepaid for the Services and not yet earned by Licensor.
Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS ("LICENSOR PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, EXCEPT FOR LICENSOR’S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 11, EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY LICENSOR INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 11, IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THREE TIMES THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LICENSOR PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
Confidentiality. Subscriber and Licensor understand and agree that in the performance of this Agreement, the Licensor may have access to private or Confidential Information of the other Party, which either is marked as "confidential" or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Licensor will only permit access to the Confidential Information of the Subscriber to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this Agreement.
This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party's possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure Licensor will provide notice to Subscriber reasonably sufficient to allow Licensor the opportunity to apply for a protective order or other restriction regarding such disclosure. For purposes of this Agreement, “Confidential Information” means any valuable, non-public business information, including this Agreement and all matters discussed relating to this Agreement, that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party’s business and industry.
Miscellaneous.
Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.
Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.
Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and remain binding upon and for the benefit of the Parties hereto.
Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.
Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications, or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of the Commonwealth of Virginia, applicable to contracts made entirely within Virginia and wholly performed in Virginia, without regard to any conflict or choice of law principles. Both parties consent to the personal jurisdiction of the state and/or federal courts located in the Commonwealth of Virginia. Both parties further agree that the proper and exclusive venue is a state and/or federal court located in Norfolk or Chesapeake, Virginia.
Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of Licensor.
Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one Party than against the other.