This Subscription Agreement (the “Agreement”) is entered into by and between FastDemocracy Corp., a Delaware corporation (the “Company”), with an address of 911 Washington Avenue #500, St. Louis, Missouri, United States, and Customer as of the Subscription Effective Date. The Company and Customer may be collectively or individually referred to as the “Parties” or “Party” below.
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
(a) “Authorized User” or “Authorized Users” shall mean, (i) to the extent Customer is an individual, only such individual, (ii) to the extent Customer is not an individual, such Customer’s employees and independent contractors working for Customer in the ordinary course of Customer’s business, if any, who (A) agree to be bound by the terms of this
Agreement, and (B) are previously identified by Customer to the Company.
(b) “Content” means the audio and visual information, documents, software, text, images, and data contained or made available to the Customer in the course of using the Service.
(c) “Intellectual Property” means any intellectual property or other proprietary rights, including but not limited to methodologies and processes, training protocols and similar methods and processes, algorithms, databases, data collections, inventions (whether or not patentable), know-how, logos, marks (including brand names, product names and slogans), network configurations and architectures, proprietary information, software, software code in any form, including source code and executable or object code), subroutines, techniques, user interfaces, URLs, web sites, works of authorship and other forms of technology.
(d) “Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copy rights and moral rights; (b) trademark, service mark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property; and (f) rights in or relating to registrations, renewals, extensions, reversions, combinations, continuations, continuations-in-part, divisions, reexaminations and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(e)” above.
(e) “Service” shall mean the services listed in Exhibit A attached hereto.
2. License to Receive the Service
(a) Grant. The Company hereby grants the Authorized Users a limited, non-exclusive and non-transferable license, without right of sublicense, to access and use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted under this Agreement are reserved to Company. The rights granted the Authorized Users include:
(i) the right to electronically use materials from the Service for individual use;
(ii) the right to download or make printouts using materials accessed or downloaded by an Authorized User, primarily for that Authorized User’s exclusive use; and
(iii) the right to (A) excerpt or quote insubstantial portions of materials in documents prepared in the ordinary course of the Customer’s business to the extent permitted by applicable copyright law; (B) distribute downloaded materials to persons who are not Authorized Users (including by emailing) on an occasional, infrequent basis as permitted by applicable copyright law; and (3) store materials to the extent required for legal or regulatory compliance provided all other materials are purged promptly upon the expiration of this Agreement.
(b) Scope. The license granted to Customer hereunder is limited to the Authorized User(s) set forth on the first page to this Agreement. Nothing in this Agreement shall obligate the Company to continue providing access to any Service beyond the date when the Company ceases providing such Service to customers generally.
(c) Restrictions Use. Customer shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Except as set forth in Section 2(b), Customer may not, and may not permit others to: (i) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service; (ii) modify, translate, adapt, alter, or create derivative works from the Service; (iii) copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service; or (iv) distribute, sublicense, rent, lease, loan or grant any third party access to or use of the Service to any third party.
Neither Customer nor any Authorized User may use the Services or any materials in any fashion that infringes the Intellectual Property Rights, privacy rights or proprietary interests of the Company or any third party. Customer or any Authorized User’s use of the Services and materials must comply with all applicable laws, rules and regulations. Neither Customer nor any Authorized Users may remove or obscure the copyright notice or
other notices contained in any materials.
(d) Modification of Services. The Parties acknowledge and agree that during the Term, the Services may be modified and/or expanded from time to time by the Company without prior notice to Customer.
(e) Third-Party Content. As a convenience to Customer, the Services may provide links to web sites and/or access to content, information, products and services of third parties (collectively, “ Third-Party Content”). In some instances, the connection to Third-Party Content may consist of only a hyperlink (“Linked Sites”). Customer should refer to the separate terms of use, privacy policies, and other rules posted on Linked Sites before using them. The Company does not author, edit or monitor these Linked Sites, and is not responsible or liable for: (i) the availability of or content provided on such Linked Sites, nor does inclusion of any link imply endorsement of the Linked Sites by the Company, or vice-versa; (ii) Third-Party Content accessible through such Linked Sites; (ii) any loss or damage whatsoever Customer may incur from dealing with any Linked Site; or (iv) Customer’s dealings with any third parties found on or through the Services and any terms, conditions, warranties, or representations associated with such dealings. Customer bears all risk associated with the use of, or reliance upon, the Third-Party Content, Linked Sites, third party services, and Customer’s correspondence or business dealings with entities other than the Company found on or through the Services.
(f) Customer Responsibilities. Customer is responsible for all of Customer’s activities associated with the Services that occur under Customer’s user accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, and legality of any Content it shares as permitted under this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and to notify the Company promptly upon becoming aware of any unauthorized access or use of the Services; and (iii) ensure that its use of the Services is compliant with all applicable laws and regulations.
3. Fees and Payment
(a) Fees. Fees for the Services are set forth in first page to this Agreement. Customer shall pay to the Company the non-cancelable and non-refundable license fees due on the Subscription Effective Date and each anniversary date thereafter, if the Term is renewed. Notwithstanding the foregoing, the Company may issue, at the Company’s sole and absolute discretion, a partial or full refund of the Fees, by accounting for, among other considerations, exceptional circumstances. In addition to any other rights it may have, the Company shall have the right to terminate this Agreement upon Customer’s failure to make any payment of undisputed amounts due hereunder by the due date. In lieu of or in addition to the suspension of the Service, interest will accrue on past due amounts at the rate of 1.5% per month (or any lower legal maximum).
(b) Taxes. Customer will be responsible for, and will promptly pay or reimburse the Company for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Company that is in accordance with the direction or request of Customer) that are based on or with respect to any Services or goods provided by Company to Customer, or the amounts payable to the Company therefore.
4. Copyright Protection; Use Restrictions; Security
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Customer agrees that the Service and any Content are the property of the Company. The works and databases included in the Services or Content are protected by applicable copyright laws. Customer agrees that only Authorized Users shall be permitted access to the Service. Except as set forth in this Agreement, no clients or other persons or entities who are not legal employees of Customer or independent contractors consulting for Customer in the ordinary course of Customer’s business may be Authorized Users. Except as otherwise permitted under this Agreement, Customer shall not reverse engineer, decompile or disassemble any part of the Service. Customer further agrees that neither Customer nor any Authorized User shall store, copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithims), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Customer, without the Company’s express prior written consent. Without limiting the foregoing, under no circumstances shall distribution under this Section by Customer be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Customer agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or the Company.
5. DISCLAIMER.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS OF THIS AGREEMENT, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY.
6. INDEMNIFICATION.
(a) Customer shall indemnify and hold the Company, its licensors and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim, which if true, would constitute a violation by Customer of its representations and warranties; or (ii) a claim arising from the breach by Customer or any Authorized User of this Agreement, provided in any such case that the Company (A) gives written notice of the claim reasonably promptly to Customer; (B) gives Customer substantial control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release the Company of all liability and such settlement does not affect the Company’s business or the Service); (C) provides to Customer all reasonable information and assistance; and (D) has not compromised or settled such claim.
(b) The Company shall indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Subscription Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by the Company of its representations and warranties; or (iii) a claim arising from the breach by the Company of this Agreement; provided that Customer (A) promptly give written notice of the claim to Customer; (B) give the Company sole control of the defense and settlement of the claim (provided that the Company may not settle or defend any claim unless it unconditionally releases Customer of all liability); (C) provide to the Company all
available information and assistance; and (d) have not compromised or settled such claim.
The Company shall have no indemnification obligation, and the Customer shall indemnify the Company pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, hardware or business process(es).
7. Limitation of Liability
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COMPANY AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (“THE COMPANY PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO CUSTOMER, 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 THE 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 THE COMPANY PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER 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 THE COMPANY PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST COMPANY RELATING TO ANY BREACH OF THIS AGREEMENT BY CUSTOMER.
8. Term; Early Termination
(a) This Agreement shall commence on the Subscription Effective Date, and shall thereafter continue for a period of one (1) year from the Subscription Effective Date (the “Term”), unless otherwise terminated as provided under this Agreement. This Agreement shall automatically renew for subsequent one (1) year terms unless either Party gives the other written notice of its intention not to renew no later than thirty (30) days prior to the end of the then-current term.
(b) This Agreement may be terminated as follows: (i) if either Party commits a material breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice from 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 (ii) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect.
(c) If either (i) Customer’s account is thirty (30) days or more overdue, or (ii) Customer is in material breach of its obligations under this Agreement, in addition to any of its other rights or remedies, the Company reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full, or until such material breach is cured to the Company’s reasonable satisfaction.
(d) Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the Services and Content and delete (or, at the Company’s written request, return) any and all copies of Content and any other Confidential Information of the Company in its possession, and the license granted to Customer under Section 2 above shall immediately terminate.
(e) All provisions of this Agreement, unless otherwise indicated in this Agreement, which by their nature should survive termination shall survive termination (regardless of the reason of termination).
9. Confidentiality.
Customer understands and agrees that in the performance of this Agreement it may have access to private or confidential information of the Company which either is marked as “confidential” or Customer should reasonably know under the circumstances that such information is confidential and/or proprietary information of the Company. Customer shall hold such information in confidence and not, without the consent of the Company, disclose it to a third party or use it for any purpose other than in performance of this Agreement. 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, Customer will provide notice to the Company reasonably sufficient to allow the Company the opportunity to apply for a protective order or other restriction regarding such disclosure. All confidential information will remain the exclusive property of the Company. No public announcement, press release or communication concerning this Agreement shall be made without the prior consent of the other Party.
10. Miscellaneous
(a) 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 on the first page to 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.
(b) Amendment. This Agreement may not be amended except in a writing executed by authorized representatives of Customer and the Company.
(c) Assignment. This Agreement is not transferable, assignable, delegable, or sublicenseable by Customer in whole or in part, without the prior written permission of the Company. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors, trustees, administrators, and assigns.
(d) Relationship of the Parties. The Parties acknowledge that: (a) they are acting as independent contractors; (b) each Party is solely responsible for its actions or inactions; (c) the Parties shall not be deemed to be agents of each other; and (d) no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement.
(e) 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.
(f) No Waiver. 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 nonexclusive. 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.
(g) Injunctive Relief. If Customer breaches this Agreement, the Company 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 Customer acknowledges and agrees to not contest such application.
(h) 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.
(i) 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 Missouri, applicable to contracts made entirely within the State of Missouri, and wholly performed in the State of Missouri, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Missouri.
(j) Force Majeure. Any failure or delay by the Company 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, or labor difficulties, or any similar cause beyond the reasonable control of Company.
(k) Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ and experts’ fees and costs in connection with such action.
(l) 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.
EXHIBIT A
SERVICES
Subject to the terms and conditions of the Agreement, the Company will provide to Customer the following Services:
Bill tracking
Searchable voting records
Daily or weekly bill update emails
Instant bill alerts
Search by subject
Bill summaries
Ability to make notes on bills
Sharing of bills lists with colleagues, or online
Bill language comparison, both statewide and with other states
Website widget for sharing bill lists online