Business Agreement

Thank you for your interest in our cloud services, including “Mobile Canvassing” and other software applications and hosted software platforms, and any related training services or other software, information, tools or other materials (collectively, “Service”) provided to you by Electionear Inc., a Delaware corporation, d/b/a Organizer, with offices located at 1118 Howard Street, Suite 3, San Francisco, CA 94103 (“Organizer,” “us,” or “we”). This Business Agreement (the “Agreement”) governs your use of the Service. This Agreement, as incorporated into an Order, is a legally binding contract between you and Organizer regarding your use of the Service. We may refer to you herein as “you” or “Customer,” and the parties to this Agreement shall be, individually, a “Party” and, collectively, the “Parties.”

 

PLEASE READ THIS AGREEMENT CAREFULLY. BY EXECUTING AN ORDER WITH ORGANIZER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree to this Agreement, then you do not have our permission to use the Service.

 

 

1.     ORGANIZER SERVICE


1.1    Overview of Service. Organizer offers cloud services to its clients to enable outreach in support of candidates,

causes  and organizations including, but not limited to political, labor, advocacy, and corporate customers. Each aspect of the Service is provided on a subscription basis for a set term, as selected by you in a written executed order or other agreement between us and you, in each case expressly referencing this Agreement (each, an “Order”). Customer will purchase and Organizer will provide the Service identified in an Order made pursuant to this Agreement. Each Order is made under and incorporates this Agreement.

 

 

2.     USE OF SERVICE

 

2.1   Accounts.

 

2.1.1.       Administrator Account. Customer may, through an administrative console to the Service, create an

administrative account (“Administrator Account”). An Administrator Account will have the ability to access, disclose, restrict or remove information in or from and otherwise terminate an End User’s access to an End User Account (both defined below). Customer is also solely responsible for notifying End Users of any Customer employee, contractor, or volunteer policies or other terms and policies relevant to use of the Service.

 

2.1.2.       End User Account. Use of and access to the Service is permitted only by the employees, contractors, or

volunteers of Customer who are authorized by Customer to use the Service (each, an “End User”). Each End User will be assigned unique account and log-in credentials that will be provided by the Administrator Account (each, an “End User Account”).

 

2.1.3        Licensed Accounts. The number of Administrator Accounts and End User Accounts purchased by

Customer Organizer will be identified in the applicable Order. Customer is limited to the number of Administrator Accounts purchased. In addition, the number of End User Account licenses purchased corresponds to the number of End User Accounts which may be simultaneously logged in and connected to the Service.

 

2.1.4       Customer Administration of the Service. Customer is responsible for (a) maintaining the confidentiality of

user IDs and passwords and managing access to the Administrator Account and End User Accounts and (b) ensuring that Customer’s use of the Service (including use by third parties of an Administrator Account or End User Account) complies with the terms of each Order and all applicable laws and regulations. For clarity, Organizer’s responsibilities do not extend to the internal management or administration of the Service for or by Customer. Customer agrees that the information it provides to Organizer during any account registration process is accurate and that Customer will keep it accurate and up-to-date at all times. Customer is solely responsible for maintaining the confidentiality of any Administrative Accounts or End User Accounts and corresponding passwords, and Customer accepts responsibility for all activities that occur under any such accounts.

 

2.1.5       Unauthorized Use and Access. Customer will prevent unauthorized use of the Service and will terminate

any unauthorized use of the Service after Customer becomes aware of such unauthorized use. Customer is  responsible for any and all actions taken using Customer’s accounts.

 

2.2  Software. End Users may download a software package (“Software”) to use the Service; such Software may be

included in or embodied by an App, or provided for use with an App. Organizer hereby grants Customer a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access and use the Service. Organizer hereby reserves all rights not expressly granted in this Agreement. Software may include open source software, and to the extent any applicable open source license provision conflicts with this Agreement, the open source license provision will apply. Except as otherwise specified or when the context indicates a hosted service only, each reference to “Service” includes Software. Licenses will be granted to an End User directly by us through the applicable App store from which the App is downloaded.

 

2.3  Restrictions. Customer will not: (a) rent, lease, copy, resell, or otherwise provide access to or sublicense any

element of the Service to a third party, except for use by End Users permitted herein; (b) use any element of the Service to provide, or incorporate any element of the Service into, any product or service provided to a third party; (c) use the Service for activities where use or failure of the Service could lead to physical damage, death, or personal injury; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any element of the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Organizer); (e) modify any element of the Service or any Documentation, or create any derivative product from any of the foregoing; (f) remove or obscure any proprietary or other notices contained in the Service; (g) publicly disseminate information regarding the performance of the Service; (h) use the Service or any information contained in the Service to engage in unfair, deceptive, criminal, or unlawful activity; or (i) provide any information contained in the Service to a third party that Customer has reason to believe will use the Service or information contained in the Service to engage in any activity described in the foregoing subsection (h).

 

2.4  Organizer Policies. Customer’s use of the Service is subject to the policies that we post on our website at

www.organizer.com (“Site”), as such policies may be updated from time to time, such as our Privacy Policy and Acceptable Use Policy (each, an “Organizer Policy”). Unless otherwise specified in an Organizer Policy, any such updated Organizer Policy will be effective immediately upon its posting and govern Customer’s continued use of the Service.

 

2.5  Duties. Prior to collecting any Customer Data that contains Personal Data or Geo-Location Data of any individual,

Customer must obtain any applicable written consent to Customer’s and Organizer’s collection and use of such Customer Data as permitted under this Agreement. As between Customer and Organizer, Customer is solely responsible for obtaining such consents and solely liable for any and all collection and use of such Personal Data or Geo-Location Data. “Personal Data” means information that alone or when in combination with other information may be used to readily identify, contact, or locate an individual, such as: name, address, email address, or phone number. “Geo-Location Data” means information regarding the precise physical or virtual location of an individual.

 

2.6  Customer Data. Customer agrees that Organizer may, with no obligation or duty to Customer or any third party:

(a) use Customer Data to administer the Service and (b) use and retain Customer Data to improve, administer, and deliver Organizer’s products and services generally and as otherwise described in our Privacy Policy. Customer represents, warrants, and covenants that: (i) it owns or otherwise has sufficient rights to the Customer Data to permit it to be used as contemplated under each Order; (ii) the provision and use of Customer Data on or through the Service does not and will not violate the rights, including intellectual property rights, of any person or entity; and (iii) the upload, posting, or other submission of Customer Data to the Service does not and will not result in a breach of contract between Customer and any third party. Our Privacy Policy applies to all Customer Data and use of the Service by Customer (including End Users). By using the Service, Customer consents to the transfer, processing, and storage of Customer Data. “Customer Data” means any data or content transmitted via the Service by an End User Account or Administrator Account.


2.7   Texting. See Attachment 1.

 

 

3. OWNERSHIP

 

3.1   Organizer Technology. This is a subscription agreement for the right to access and use the Service. Customer

acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement. No right to use any Organizer trademark, logo, domain name or other brand feature (“Marks”) are granted under this Agreement. Customer agrees that Organizer or its licensors retain all right, title and interest (including all current and future worldwide patent, copyright, trademark, trade secret, moral rights and other intellectual property rights) in and to the Service, Marks, Documentation and any and all related and underlying technology (collectively, “Organizer Technology”).

 

3.2  Feedback.Customer (including any End Users), from time to time, may submit comments, information, questions,

data, ideas, description of processes, or other information to Organizer (“Feedback”). Organizer may freely use, commercialize, or otherwise exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. For clarity, Organizer shall not publicly identify Customer and/or the applicable End User as the source of such Feedback.

 

 

4. FEES & PAYMENT

 

4.1   Fees and Payment. All fees are as set forth on a fee schedule made available to Customer, if not set forth in the

applicable Order. Organizer will invoice Customer for such fees on a monthly basis or one-time only for one-time fees, as applicable, and such fees will be paid by Customer within thirty (30) days of the invoice date, unless otherwise specified in the applicable Order or Customer signs up for credit-card recurring billing, in which case Customer’s credit card will be automatically billed prior to or on the due date. Except as expressly set forth in an Order all fees are non-refundable. Customer is required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Organizer. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

 

4.2  Suspension of Service. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights

or remedies (including but not limited to any termination rights set forth in this Agreement), Organizer reserves the right to suspend Customer’s access to the Service without liability to Customer until such amounts are paid in full.

 

 

5. TERM AND TERMINATION

 

5.1   Order Term. Each Order is effective on the date set forth therein and lasts for the term duration set forth therein.

 

5.2  Termination for Cause. Either Party may terminate an Order (including all related Orders) if the other Party (a) fails

to cure any material breach under such Order (including a failure to pay fees) within twenty (20) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within sixty (60) days thereafter).

 

5.3  Effect of Termination. Upon any expiration or termination of an Order, Customer will immediately cease any and all

use of and access to a previously subscribed-to Service (including any and all End User Accounts). Customer acknowledges that following such expiration or termination, it (and each End User) will have no further access to the Service. Except where an exclusive remedy is specified, the exercise of either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under an Order, by law, or otherwise.

 

5.4  Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (Customer Data),

(Ownership), 4.1 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnification by Customer), 10 (Confidential Information), and 12 (General Terms).

 

 

6. LIMITED WARRANTY 

 

6.1   Limited Warranty. Organizer warrants, for Customer’s benefit only, that the Service will operate in substantial

conformity with applicable Documentation (if any). Organizer does not warrant that Customer’s use of the Service will be uninterrupted or error-free or that Organizer will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Organizer’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity. The limited warranty set forth in this Section 6.1 will not apply: (a) unless Customer makes a written claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or (c) to use provided on a no-charge or evaluation basis.

 

6.2  Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE SERVICE AND ANY OTHER

ORGANIZER OFFERING ARE PROVIDED “AS IS”. NEITHER ORGANIZER NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. ORGANIZER WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ORGANIZER. ORGANIZER MAKES NO REPRESENTATIONS ABOUT ANY CUSTOMER DATA OR OTHER INFORMATION IN OR FROM ANY ADMINISTRATOR ACCOUNT OR END USER ACCOUNT.

 

 

7.  SERVICE AVAILABILITY.

 

7.1   Account Suspension. If Customer (including any End User) violates an Order or uses the Service in a manner that

Organizer reasonably believes will result in liability, then Organizer may request that Customer remedy such situation (including, as applicable, by suspending or terminating any particular Administrator Account or End User Account). If Customer fails to promptly remedy such situation then Organizer may suspend Customer’s access to the Service.

 

7.2  Security Emergencies. Notwithstanding anything to the contrary in an Order, if there is a Security Emergency then

Organizer may automatically suspend use of the Service. Organizer will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (a) use of the Service that does or could disrupt the Service, other clients’ use of the Service, or the infrastructure used to provide the Service; or (b) unauthorized third-party access to the Service.

 

7.3  Modifications to the Service. Organizer may update or modify the Service from time to time. Organizer does not

promise that any features or functionality will continue to be available. If Organizer changes the Service in a manner that materially reduces its functionality, Organizer will use reasonable efforts to inform Customer. If Customer provides notice within thirty (30) days following a material reduction in functionality, Customer may terminate the applicable Order.

 

 

8.  LIMITATION OF LIABILITY

 

8.1   Limitation of Indirect Damages Liability. ORGANIZER WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING

FROM ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.


8.2  Limitation on Amount of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF AN ORDER, ORGANIZER’S '

AND ITS LICENSORS’ ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ORGANIZER UNDER THE APPLICABLE ORDER DURING THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. The Parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in an Order is found to have failed of its essential purpose.

 

 

9.    INDEMNIFICATION BY CUSTOMER. Customer will indemnify, defend, and hold harmless Organizer from and against any   

and all claims by a third party (including any End User) against Organizer to the extent based on Customer’s breach of this Agreement.

 

 

10.  CONFIDENTIAL INFORMATION. “Confidential Information” means the terms of any Order and any technical and business

information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in discussions and activities related to an Order, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Organizer Technology, performance information relating to the Service, and the terms and conditions of an Order will be deemed Confidential Information of Organizer. Except as expressly authorized in an Order, the Receiving Party will hold in confidence and not use or disclose any Confidential Information; provided, however, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees and advisors who have executed a written non-use and non-disclosure agreement in content similar to the provisions hereof and who need to have access to such Confidential Information in furtherance of the purpose of an Order. Notwithstanding anything in this Section 10, (a) Customer Data is not Confidential Information, and (b) all other usage data regarding Customer’s use of the Service may be used by Organizer to improve, administer, and deliver is products and services generally. The Receiving Party’s obligations under this Section 10 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law, or court order (but only to the minimum extent required to comply with such regulation or order and with commercially reasonable advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

 

 

11.   CO-MARKETING. Organizer may identify Customer, including through use of Customer’s logo(s), as a customer 

      of Organizer in Organizer’s promotional materials and on its Site.

 

 

12.  GENERAL TERMS

 

12.1  Assignment. Each Order will bind and inure to the benefit of each Party’s permitted successors and assigns.

Neither Party may assign an Order (including this Agreement as incorporated therein) except upon the advance written consent of the other Party, except that either Party may assign an Order in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such Party’s assets or voting securities that relate to such Order. Any attempt to transfer or assign an Order except as expressly authorized under this Section 12.1 will be null and void.

 

12.2 Severability. If any provision of an Order will be adjudged by any court of competent jurisdiction to be

unenforceable or invalid, that provision will be limited to the minimum extent necessary so that such Order will otherwise remain in effect.

 

12.3 Governing Law; Jurisdiction and Venue. Each Order will be governed by the laws of the State of California and the

United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and United States federal courts located in San Francisco, California and both Parties hereby submit to the personal jurisdiction of such courts.

 

12.4 Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received.

Notices to Customer may also be sent to the applicable account email address, and are deemed given when sent. Notices to Organizer must be sent to Electionear Inc., d/b/a Organizer, at the address set forth in the preamble above, with a copy to Organizer’s legal department.

 

12.5 Modifications to this Agreement. We reserve the right, at our discretion, to change this Agreement on a going-

forward basis at any time and will post such changed version on our Site. Each Order is made under, incorporates, and is governed by the version of this Agreement posted on our Site as of the effective date of the applicable Order.

 

12.6 Entire Agreement. Each Order (including all Organizer Policies) constitutes the complete and exclusive statement

of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of such Order. To the extent any Organizer Policies conflict with this Agreement, this Agreement shall govern. In the event of a conflict between the body of an Order and the body of this Agreement, the body of the Order shall govern.

 

12.7 Force Majeure. Neither Organizer nor Customer will be liable for inadequate performance (except for Customer’s

payment obligations) to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

 

12.8 Independent Contractors. The Parties to each Order are independent contractors. There is no relationship of

partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

 

12.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to an Order. Without limiting this section,

Customer’s End Users are not third party beneficiaries to Customer’s rights under an Order.

 

 

 

 

Attachment 1

 

 

TEXTING
TERMS AND CONDITIONS

 

 

1.     Compliance with Anti-Spam Standards and Laws. Licensee will comply with all applicable laws, regulations, treaties,

and conventions related to its use ofthe Services.  Without limiting the foregoing, when using the Services, Licensee will comply with all federal, state, local and international laws, regulations, and rules governing communications made by telephone call or text (including SMS and MMS) message, including without limitation, the Telephone Consumer Protection Act (TCPA) and its implementing regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the FTC’s Telemarketing Sales Rule, and all applicable state and local equivalents (the “Communications Laws”). Licensee should consult with its own legal counsel as Organizer does not provide legal advice. ORGANIZER HEREBY DISCLAIMS ANY LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, FOR ANY RELIANCE BY LICENSEE ON STATEMENTS OR COMMUNICATIONS MADE BY ORGANIZER OR ORGANIZER’S REPRESENTATIVES CONCERNING COMPLIANCE WITH THE COMMUNICATIONS LAWS, OTHER LAWS OR ANY LEGAL OBLIGATIONS IMPOSED BY USE OF THE SERVICE.

 

2.    Opt-In. Licensee represents, warrants and covenants that it will use the Services only to send messages (including,

without limitation, SMS/MMS messages) to individuals who have directly consented (opted-in) to receive them. Licensee understands and agrees that it is prohibited from using the Services to transmit unsolicited messages. Organizer may offer functionalities to assist Licensee in obtaining consent and/or storing records thereof. BY DOING SO ORGANIZER IN NO WAY TAKES ON, AND HEREBY FULLY DISCLAIMS, ANY LEGAL RESPONSIBILITY WITH RESPECT TO WHETHER CONSENT HAS BEEN OBTAINED IN ACCORDANCE WITH THE REQUIREMENTS OF THE COMMUNICATIONS LAWS OR OTHER APPLICABLE LAW. It is Licensee’s responsibility to ensure that any legally required disclosures are provided at the time the individuals opt in.

 

3.     Indemnification. As between the Parties, Licensee shall bear sole responsibility for all costs associated with or resulting

from its compliance or non-compliance with this Addendum. Without limiting any indemnification obligation set forth in the Master Agreement, Licensee shall defend, indemnify and hold harmless Organizer and its Affiliated Parties from any loss, expense (including reasonable attorneys’ fees), damage or liability (including, for the avoidance of doubt, any consequential, indirect, special or punitive damages) (“Losses”) arising out of any claim, demand, suit or action brought by third parties to the extent arising out of or relating to Licensee’s violation of this Addendum or the Communications Laws. Licensee expressly agrees that such indemnification obligations apply to any Losses arising out of any enforcement action, fine, tax, or other levy applied by any governmental body against Organizer and its Affiliated Parties related to any violation by Licensee of the Communications Laws.

 

[Last Updated: May 21, 2018]