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Application Service Provider Agreement

IMPORTANT-READ CAREFULLY: This Application Service Provider Agreement (the “Agreement”) is a legal agreement between you (“Client”) and AssociationVoting, L.L.C., a Michigan limited liability company, in connection with the Online Voting software and, as provided or made available by AssociationVoting to Client: (i) all associated media, printed materials, and online and other electronic documentation relating to the Online Voting software, and (ii) any modifications, upgrades, or updates to the Online Voting software (the “Application Software”). AssociationVoting and Client are each referred to herein as a “Party” and collectively as the “Parties.” BY USING THE ONLINE VOTING SOFTWARE, CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. Definitions. For the purpose of this Agreement, the following words, terms and phrases, where written with an initial capital letter, shall have the meanings assigned to them in this Section 1 unless the context otherwise requires:

1.1. “Confidential Information” means any and all information related to the services and/or business of AssociationVoting that derives independent economic value, actual or potential, from not being generally known, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use. Confidential Information does not, however, include: a) any information that was known to, or readily ascertainable by proper means by, Client before being disclosed; or b) any information that is or becomes available to the general public without fault or action of Client; or c) any information that is lawfully disclosed to Client by a third party who is under no obligation of confidentiality to AssociationVoting with respect to such information; or d) any information that is developed independently by Client.

1.2. “Data” means the content, ballot, membership information, records or other data uploaded via the Application Software or Service to the Website by Client and/or a User.

1.3. “Customization Fee” means the hourly fee specified on the Order Detail, if applicable, for AssociationVoting to configure the Application Software to provide Client with a customized ballot to resemble Client’s website instead of the Website, customized voting abilities, or some other special customization need.

1.4. “Marks” means those names, service marks, trademarks or other proprietary marks of each Party used to designate the origin of each Party’s goods or services.

1.5. “Media” means, excluding the Data, all user interface elements, multi-media and text content uploaded to the Website or incorporated or bundled with the Application Software and/or Service.

1.6. “Order Detail” is the screen or invoice to which this Agreement is linked that sets forth the details of the Application Software and the Service ordered by Client and the related fees.

1.7. “Password” is a series of letters and/or numbers that are assigned by AssociationVoting to Client’s designated Voting Manager to access the Application Software via the Website.

1.8. “Result Certification Fee” means the fee specified on the Order Detail, if applicable, for AssociationVoting to provide Client with a letter certifying the voting results, an audit report of the voting results, and archival of the Data related to the relevant election for one year.

1.9. “Service” means the hosting of the Application Software and storage of Data on a computer server and making the Application Software available to Client and Users through the Website on the Internet.

1.10. “Set-Up Fee” means the hourly or flat fee specified on the Order Detail, if applicable, for AssociationVoting to configure the ballot and instructions on the Application Software for Client’s election.

1.11. “Software License Fee” means the fee specified on the Order Detail for Client to license the Application Software during the Term pursuant to the terms of this Agreement.

1.12. “Term” means a period starting on the date set forth in the Order Detail and ending upon completion of Client’s latest occurring election, as set forth in the Order Detail, unless otherwise terminated in accordance with the terms of this Agreement. If the Order Detail is for a free trial, “Term” shall mean the free trial period specified in the Order Detail.

1.13. “Upgrade” means a minor new release of the Application Software consisting primarily of bug fixes and error corrections, and may include minor enhancements or changes.

1.14. “URL” means Uniform Resource Locator that provides a unique Internet protocol address for accessing an Internet page.

1.15. “User” means a member, employee or agent of Client who has access to the Application Software via a member number assigned to such User.

1.16. “Web” means the World Wide Web, which is a facility of the Internet.

1.17. “Website” means a location on AssociationVoting’s Internet server that provides an on-line interface that enables Client to interact with the Application Software on the Web. The Website is owned and operated by AssociationVoting and hosted by AssociationVoting or a designated Internet service provider.

2. Grant of License. Upon payment of the specified fees as set forth on the Order Detail (and during any free trial period specified on the Order Detail), and subject to the terms and conditions of this Agreement, AssociationVoting hereby grants to Client for the Term of this Agreement (unless earlier terminated in accordance with this Agreement) a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicenseable license to access and use those components of the Application Software hosted on the AssociationVoting Website set forth in the Order Detail. In no event does this license allow Client to host or otherwise use or access the Application Software on servers other than those provided by AssociationVoting. Users, solely for Client’s internal organization, association or business purposes, may use the Service and Application Software only for the purposes set forth in this Agreement.

3. Scope of Permitted Use.

3.1. Limitations. Client may access and use the Application Software in machine-readable format only as made available by AssociationVoting through the Website. Client shall not modify, adapt, translate, hypothecate, lease, loan, resell for profit or otherwise, distribute, or create derivative software based on all or any part of the Application Software or the Service. Client agrees that it shall not sublicense or resell all or any portion of the Application Software. In addition, Client may only authorize the use of the Application Software to authorized Users for the purpose of participating in Client’s election, and may not use the Application Software to provide services to third parties. Client shall not remove or modify, or attempt to remove or modify, any proprietary notices contained in the Application Software or Service. The Application Software contains trade secrets and, in order to protect them, Client shall not decompile, reverse engineer or disassemble the Application Software, or otherwise reduce the Application Software to a human perceivable form. Client will prevent any unauthorized copying of the Application Software and advise any Users who are permitted access to the Application Software of the restrictions upon duplication, reverse engineering and use contained in this Agreement. Client agrees that it shall be liable for any unauthorized copying, reverse engineering or unauthorized use of the Application Software by Users. All rights not expressly granted under this Agreement are reserved by AssociationVoting.

3.2. Restricted Use. Client agrees to use the Application Software only for the lawful purposes described above. Client will not (i) post or transmit on or through any website offering the Service any libelous, obscene or otherwise unlawful information of any kind; (ii) interfere with or disable the Application Software in any way; or (iii) engage in any conduct involving the Service, including but not limited to the Application Software, that would constitute a criminal offense or give rise to civil liability under any local, state, federal or other law or regulation. Neither Client nor its Users will upload, post, reproduce or distribute to or through the Website or the Application Software any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Client agrees that it is responsible for maintaining the confidentiality of any User member numbers, passwords or access codes used to access the Application Software and for all activities resulting from their use, including any unauthorized use.

4. Billing and Payment.

4.1. Fees. Except as may be specifically stated in the Order Detail, the Software License Fee and, to the extent applicable, any Set-Up Fee, Customization Fee, and Result Certification Fee shall be paid within thirty (30) days of receipt of AssociationVoting’s monthly invoice, all as further set forth in the Order Detail. If there is a bona fide dispute regarding any invoice rendered or amount paid, the disputing Party shall notify the other in writing thereof, and the Parties shall use their best efforts to resolve such dispute expeditiously. All undisputed portions of any invoice shall be paid as stated above. Any other amounts which may become payable by Client pursuant to this Agreement, shall be payable by Client within thirty (30) days of receipt of an invoice from AssociationVoting. Any late payments shall incur a late fee at the rate of one and one-half percent (1.5%) per month or the maximum interest permitted by law, whichever is less. Client agrees to pay all late fees accrued on late payments. If Client is delinquent in its payments, AssociationVoting may, upon written notice to Client, modify the payment terms to require full payment before the continued provision of Application Software and Services or require other assurances to secure Client’s payment obligations hereunder.

4.2. Taxes. Client will pay or reimburse AssociationVoting for all sales, use, excise and other taxes and governmental charges which AssociationVoting is at any time required to pay or collect in connection with the sale, licensing or furnishing of products or services under this Agreement, excluding any taxes based on AssociationVoting’s income.

5. Initial System Setup, Client Conduct and Marks.

5.1. Application Software. AssociationVoting shall make the Service and Application Software available for access by Client on the date specified on the Order Detail and in accordance with the terms of this Agreement.

5.2. Client’s Responsibilities for Setup. Client must provide Internet connectivity to the Website with sufficient bandwidth to meet Client’s utilization demands. If Client has not requested customization, Client shall be solely responsible for setup of Client’s election, membership, and ballots, and AssociationVoting’s responsibility shall be limited to providing the Service. If Client has requested customization and paid the Customization Fee, Client shall furnish to AssociationVoting in a prompt manner such data, documents, information, materials, decisions or approvals of Client as AssociationVoting shall reasonably request or require in the setup and performance of the Application Software and Service.

5.3. Client Passwords. Client will give AssociationVoting written contact information (including an e-mail address) identifying one or more individuals to serve as its administrator of the Service and Application Software (the “Voting Manager”). AssociationVoting will furnish Client with a Password for use by each such Voting Manager. A Password is necessary to access the Application Software through the Website. The Password provides vital security in preventing unauthorized access to Client’s Data, the Application Software and Service, and Confidential Information. Client is responsible for keeping and maintaining the security of the Passwords that are assigned to Client and shall have sole and exclusive responsibility for any unauthorized access to Data, the Application Software and Service, or Confidential Information that results from Client’s failure to keep the assigned Passwords secure. Users may be granted access to the Application Software and Service in accordance with procedures communicated to Client during the implementation process, generally by entering such User’s last name and member number assigned to such User by Client.

5.4. Client Conduct. Client agrees to abide by all applicable local, state, federal and foreign laws, treatises and regulations in connection with the Application Software and Service. In addition, without limitation, Client agrees not to use the Application Software or Service: (a) in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) to transmit through or post on the Application Software or Service unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, libelous, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or material which is harmful to minors in any way; (d) to transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, copyright or right of publicity; (e) to transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, or cancelbots; (f) to interfere with or disrupt servers or networks connected to the Application Software or Service or violate the regulations, policies or procedures of such networks; (g) to attempt to gain unauthorized access to the Application Software or Service, other accounts, computer systems or networks connected to the Application Software or Service, through password mining or any other means; or (h) to harass or interfere with another client or user’s use and enjoyment of the Application Software or Service.

5.5. Marks. Client hereby grants to AssociationVoting and AssociationVoting hereby grants to Client a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use the Marks of the other Party solely for the purposes of carrying out its obligations and rights pursuant to this Agreement. Each Party may immediately suspend the other Party’s use of its Marks by giving written notice to such Party if, in the sole reasonable discretion of such owning Party, the other Party’s use of its Marks is deemed improper.

6. Service Access and Application Availability. AssociationVoting is not responsible for loss of access to the Service or Application Software for reasons that are beyond AssociationVoting’s reasonable control. The Website may periodically be inaccessible or inoperable for any reason including, but not limited to: (a) transmission interference, interruptions, congestion and/or outages; (b) hardware or software malfunctions; (c) periodic maintenance procedures or repairs made by or on behalf of AssociationVoting; or (d) other causes beyond AssociationVoting’s reasonable control. In the event that the Website or the Application Software is down for more than four consecutive hours during the Client’s voting window during the Term as a result of Assocation Voting’s failure and not as a result of the foregoing, upon receipt of Client’s notice of such failure and request for refund, Assocation Voting shall pay to Client a pro-rated amount of the Software License Fee paid by Client based on the percentage of downtime. This refund is Client’s exclusive remedy for such failure.

6.1. Application Software Support. AssociationVoting shall provide support of the Application Software under this Agreement in accordance with AssociationVoting’s normal procedures. Any Upgrades to the Application Software will be implemented for the benefit of Client at no additional charge by AssociationVoting at intervals solely determined by AssociationVoting.

7. Maintenance, Software Upgrades and Backup. From time to time, it is necessary for AssociationVoting to undertake maintenance of the system and Upgrade the Application Software. AssociationVoting will perform such maintenance and Upgrades to the Application Software in accordance with the following:

7.1. Scheduled Maintenance. Scheduled maintenance will occur as announced by AssociationVoting on its blog, by newsletter, by e-mail, or otherwise.

7.2. Emergency Maintenance. Maintenance may be required at times other than scheduled maintenance periods. AssociationVoting will use commercially reasonable efforts to complete such maintenance in a commercially reasonable period of time.

7.3. Software Upgrades. AssociationVoting may, at its sole discretion, determine if and when to Upgrade current versions of the Application Software. Nothing herein shall obligate AssociationVoting to Upgrade the Application Software or the Service. Whenever practicable, AssociationVoting will seek to conduct Upgrades during the scheduled maintenance periods.

7.4 Backup. AssociationVoting reserves the right to establish or modify general practices and limits concerning the backup of the Application Software and Service, including without limitation the maximum number of days that Data will be retained by the Application Software and Service. At present, AssociationVoting will perform a full system backup on a daily basis and will archive such daily backups for 30 days following the Term, or for one year if Client has paid the Result Certification Fee. AssociationVoting will take commercially reasonable steps to maintain Data integrity in any backup, but AssociationVoting is not responsible for loss of Data or Data integrity so long as AssociationVoting has performed the backup in a commercially reasonable manner.

8. Proprietary Rights, Confidentiality and Responsibility for Data.

8.1. Title. The Application Software and any copies of the Application Software, in whole or in part, including translations, compilation, partial copies, modifications, customization for Client, updates, any images and applets, photographs, animations, video, audio, music and text incorporated in the Application Services are the property of AssociationVoting or its licensors. Client has only the limited rights granted by this Agreement. Client is not an owner of any copy of the Application Software. AssociationVoting and its licensors reserve all rights not expressly granted hereunder. United States Copyright Law and other United States and international laws and treaties relating to protection of intellectual property protect the Application Software. AssociationVoting and AssociationVoting products and services referenced herein are either trademarks or registered trademarks of AssociationVoting.

8.2. Data Ownership. Client and/or User shall own title and interest in their respective Data. Client and Users grant AssociationVoting a nonexclusive, royalty-free, irrevocable, perpetual license to use Data for its internal business purposes (and to provide certain user registration and statistical information such as usage or user traffic patterns in aggregate form to third parties, but such information will not include personally identifying information). AssociationVoting agrees to treat Data uploaded to the Application Software as Client’s proprietary material. AssociationVoting makes no representations whatsoever regarding the accuracy, reliability or timeliness of Data. As between Client and AssociationVoting, the sole responsibility and liability for Data lies with Client, and Client shall indemnify and hold AssociationVoting harmless from any third party claims, causes of action or liability howsoever arising out of or with respect to Data. AssociationVoting shall be under no obligation to monitor, review, screen, edit or otherwise control Data or any other information or material contributed by Client or Users. Notwithstanding the above, AssociationVoting has the right to intercept and disclose any Data to the extent reasonably necessary to protect the rights of AssociationVoting or comply with any law, regulation or governmental request. AssociationVoting may access any Client account, including its Data, to respond to service or technical problems or as stated in this Agreement. Client, not AssociationVoting, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and AssociationVoting shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data.

8.3. Confidential Information. Client agrees to maintain in confidence and not disclose to others the Confidential Information. Client agrees that all Confidential Information will remain the exclusive property of AssociationVoting and that Client will: (i) maintain and use prudent methods to cause the Users to maintain the confidentiality and secrecy of the Confidential Information; (ii) use prudent methods to ensure that Users do not copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; (iii) return or destroy all copies of Confidential Information upon request of AssociationVoting; and (iv) not use the Confidential Information for any purpose other than as permitted in this Agreement.

9. Disclaimer of Warranties; Exclusive Remedy; Limitation of Liability.

9.1 Warranty; Disclaimer of Warranties. To AssociationVoting’s knowledge, the Application Software does not violate or infringe any third party intellectual property rights, including any currently issued United States patent, copyright, trademark, trade dress, or trade secret right and AssociationVoting is not aware of any past or present claims that the Application Software violates or infringes any of the foregoing rights (“Intellectual Property Warranty”) The sole remedy for AssociationVoting’s breach of the Intellectual Property Warranty is set forth in Section 11.2. EXCEPT FOR THE INTELLECTUAL PROPERTY WARRANTY, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED.

9.2. Exclusive Remedy. Client’s sole remedies for AssociationVoting’s liability of any kind (whether in contract, tort, or otherwise) with respect to products or services covered by this Agreement and all other performance by AssociationVoting under or pursuant to this Agreement will be that: (a) AssociationVoting will endeavor to correct within a reasonable time any reported failure of the Application Software or Service to substantially conform to or perform substantially in accordance with AssociationVoting’s online user documentation, or (b) in the event that AssociationVoting fails or is unable for any reason to correct any failure of the Application Software or Service to substantially conform to or perform substantially in accordance with AssociationVoting’s online user documentation, then, Client may terminate this Agreement, and AssociationVoting will refund to Client a pro-rated amount of the Software License Fee paid for the Term.


9.4. Third Parties.

9.4.1. Third Party Interaction. In using the Application Software or Service, Client may enter into correspondence or otherwise interact with third-parties through the Application Software or Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Client and the applicable third-party, including Users. AssociationVoting shall have no liability, obligation or responsibility for any such correspondence, purchase, promotion or other interaction between Client and any such third-party.

9.4.2. Links From Third Party Sites. AssociationVoting does not endorse any sites on the Internet which are linked to the Website. AssociationVoting may allow certain links to the Website only as a matter of convenience, and in no event shall AssociationVoting be responsible for any content, products, or other materials on or available from such sites.

9.5. Basis of the Bargain. Client acknowledges that AssociationVoting has set its prices and entered into this Agreement in reliance upon the disclaimers of warranties, limitations and exclusions of liability, and limitations of remedies set forth in this Agreement, and that the same form an essential basis of the bargain between the Parties.

10. Client’s Warranties. Client represents and warrants (a) that it has the right and is free to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder; (b) that it has not and will not enter into any agreement that will conflict with or inhibit in any material way its ability to fully perform its obligations under this Agreement, and (c) that Client shall have all requisite rights to any Data or other information uploaded to the Website. Client shall be liable for any direct damages to AssociationVoting that flow from any breach of this Section 10.

11. Indemnification.

11.1. Client’s Indemnification of AssociationVoting. Client will indemnify, defend and hold AssociationVoting, its officers, directors, employees, affiliates, representatives and customers harmless from and against any and all losses suffered by (including costs and legal fees), or resulting from or arising out of any action brought by or against, AssociationVoting, its officers, directors, employees, affiliates, representatives or customers arising from or relating to: (a) any violation of any term of this Agreement by Client or Users that (i) affects the intellectual property rights of AssociationVoting or (ii) results in a third party claim against AssociationVoting; (b) any violation of law, rule or regulation by Client or Users; or (c) any misuse of the Application Software in violation of Section 3 by Client or Users.

11.2. AssociationVoting’s Indemnification of Client. Subject to Section 9.3, AssociationVoting will indemnify, defend and hold Client, its officers, directors, employees, affiliates, and representatives harmless from and against any and all losses suffered by (including costs and legal fees), or resulting from or arising out of any action brought by a third party against Client, its officers, directors, employees, affiliates, or representatives arising from or relating to the breach of AssociationVoting’s Intellectual Property Warranty set forth above in Section 9.1. This indemnification is Client’s sole remedy for AssociationVoting’s breach of Section 9.1.

12. Term and Termination.

12.1. Term. This Agreement shall become effective on the Effective Date specified in the Order Detail and shall remain in effect for the Term.

12.2. Termination for Breach. AssociationVoting may terminate this Agreement automatically and immediately in the event that: (a) Client does not pay the fees due within thirty (30) days of invoice therefor or (b) Client violates any of the provisions of Sections 3 or 5.4. AssociationVoting or Client may terminate this Agreement upon written notice, including by e-mail, if the other Party materially breaches this Agreement and fails to cure such breach within three (3) days following receipt of written notice specifying the breach in detail. If any such breach is not reasonably susceptible of cure, the termination will be effective immediately upon receipt of written notice.

12.3. Rights and Obligations Upon Termination. In the event this Agreement expires or is terminated: (i) all license grants made to Client and any Users pursuant to this Agreement are immediately revoked, and Client and Users shall immediately cease all use of the Application Software, (ii) each Party shall forthwith cease all display, advertising, and use of all Marks owned by the other Party, and will not thereafter use, advertise, or display such marks, and (iii) Client agrees to promptly pay any unpaid fees or payments due and owing under this Agreement. AssociationVoting shall have the right to disable all Client’s and/or User’s passwords and/or access codes.

12.4. Survival. The following provisions shall survive termination of this Agreement for any reason: Sections 3, 4, 8 – 13.

13. General Provisions.

13.1. Governing Law. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the State of Michigan, without regard to that State’s conflict of laws provisions.

13.2. U.S. Government Restricted Rights. If Client or its User is a U.S. Government agency, in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR Sect. 12.212) Client hereby acknowledges that use, duplication or disclosure of the Application Software by the U.S. Government or any of its agencies is governed by, and subject to, all of the terms, conditions, restrictions and limitations set forth in this Agreement.

13.3. Notice. For the purposes of any and all communications and deliveries to AssociationVoting with respect to this Agreement, the same may be sent to AssociationVoting as follows:

The foregoing contact information is subject to change without notice.

13.4. Unenforceable Provisions. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.

13.5. Independent Contractors. The relationship of the Parties under this Agreement is and at all times shall remain that of independent contractors. Nothing in this Agreement will be construed to create a joint venture, partnership, franchise, employment or agency relationship between AssociationVoting and Client. Client does not have, and shall not represent itself as having, any right or authority to obligate or bind AssociationVoting in any manner whatsoever.

13.6. Assignment. This Agreement is not assignable by Client without the prior written consent of AssociationVoting.

13.7. Entire Agreement. This Agreement, including the Order Detail which is hereby incorporated herein by reference, sets forth the entire agreement and understanding between the Parties regarding the subject matter hereof and supersedes any prior understanding or agreements, whether written or oral, regarding the same subject matter.

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