1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative username and password for Customer’s account with Company (the “Customer Account”). Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or Impactive Solutions Inc. proprietary data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3. Customer understands that Customer’s use of the Services is subject to Company’s terms of use (the “Terms of Use”) located at https://www.impactive.io/terms-of-service and privacy policy (the “Privacy Policy”) located at https://www.impactive.io/privacy-policy (collectively, the “Policy”), provided however that if the terms and conditions of the Terms of Use and this Agreement conflict, the terms and conditions of this Agreement shall control. Customer agrees to use the Service in compliance with all applicable laws and regulations. Notwithstanding the foregoing, Customer acknowledges that Company’s standard Terms of Use may apply to employees or volunteers of Customer when such employees and volunteers are using the App (defined below) not on behalf of Customer but rather through usernames and passwords not associated with the Customer Account as described in Section 1.1 herein. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4. Notwithstanding Section 2.3, Company covenants, represents and warrants that Company’s provision of the Services hereunder, including Customer’s use of the Services in accordance with the terms of this Agreement, does not violate any applicable law, regulation or governmental order or the rights of any third party, including the intellectual property rights or rights of privacy of any third party. Customer’s indemnification obligations set forth in Section 2.3 shall not include any claim alleging that Company’s provision of the Services, or Customer’s use of the Services in compliance with this Agreement, violates any applicable law, regulation or governmental order or the rights of any third party, including the intellectual property rights or rights of privacy of any third party.
2.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and for implementing reasonable procedures to maintain the security of Customer’s account, including password, credentials for the Services, and for all uses of Customer account or the Equipment by Customer or Customer’s users.
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose (including disclosures prior to the Effective Date) business, political, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes all non-public data provided by Customer to Company through the Customer Account to enable the provision of the Services, including but in no way limited to names, contact information (email addresses, phone numbers, mailing addresses, etc.), information related to an individual’s political leanings or relationships to any individual employee or volunteer of Customer, and any messages or other content distributed or received by the Customer as part of the Services (“Customer Data”) as well as any other non-public information relating to Customer’s use of the Services or Customer’s projects, plans, finances, strategy, needs or activities. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information that are no less protective than the precautions taken to protect the Party’s own Proprietary Information, and (ii) not to use such Proprietary Information or disclose or make available such Proprietary Information to any third party except, in the case of Company, as is strictly necessary to perform the Services under this Agreement or as otherwise expressly provided for in the Policy or this Agreement or, in the case of Customer, to use the Services as permitted by the Policy, this Agreement, or as otherwise expressly provided for in this Agreement . The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public through no action by it, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law provided that the Receiving Party notifies the Disclosing Party, by registered mail, of the need for such disclosure within five (5) days after such need becomes known and gives the Disclosing Party a reasonable opportunity to contest such disclosure. Finally, Customer shall not disclose the terms of this agreement to any third person or party, except as is strictly necessary to use the Services hereunder.
3.2. As between Company and Customer, Customer shall own all right, title and interest in and to the Customer Data. Company shall have no rights whatsoever in the Customer Data and is prohibited from using Customer Data or providing Customer Data to Company’s third-party service providers for any purpose whatsoever other than directly providing the Services to Customer under this Agreement or to exercise the rights set forth in Section 3.3 below. Company shall implement all commercially reasonable administrative, physical and technical safeguards and procedures to protect Customer Data from unauthorized access, use or disclosure. Such safeguards must be at least equivalent to the same safeguards and procedures Company uses to protect its own most sensitive data. Nothing herein shall grant Company any rights in or to Customer’s logo, which shall remain the sole and exclusive property of Customer. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form and in connection with its business. No rights or licenses are granted except as expressly set forth herein and in no event shall any underlying Customer Data be released, made public, or provided to an external third party in connection with this right.
3.4. All names, contact information and email addresses that are provided to Company through Customer’s Account within the Services by an employee of Customer or a volunteer of Customer (the “User Data”) shall remain the property of the respective employee or volunteer. Company may use the User Data solely as is necessary to perform its obligations under this Agreement or to administer the Services and may not provide, disclose or make available any User Data to any third party except as provided in the Policy. Company may never under any circumstances provide or make available any User Data to any other customer of Company. If User Data is made available or disclosed to any other customer of Company, Company shall promptly notify Customer and work with Customer to remedy the breach. Any employee or volunteer may utilize the App’s feature to delete all User Data, including any copies of the User Data, or otherwise contact Company requesting it delete all User Data, including any copies of the User Data, at any time or for any reason. Notwithstanding the foregoing, any information provided by those users of the App whose information is not provided to Company by Customer through Customer’s Account shall be considered “Company Data” and Customer shall have no ownership interest in and to the Company Data.
4.1. Customer shall pay Company the applicable fees described in this Agreement for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth in this Agreement or otherwise requires the payment of additional fees, including but not limited to reimbursement of Company for any fines or fees it is forced to pay to third party providers as a direct result of Customer's use or misuse of the Services (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees as necessary to meet the Customer's use of the Services. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the mailing date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2. Company will invoice Customer, submitted either via email or U.S. postal mail, for all Fees, and full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice. Unpaid amounts not paid within the thirty (30) day deadline are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income, provided that such taxes are included on an invoice to Customer.
4.3. Company reserves the right to suspend Customer's access to and/or use of the Services for any account for which any payment is due but remains unpaid after thirty (30) days. Customer agrees that Company shall not be liable to Customer, or to any third party, for any damages or injury sustained from the suspension of the Services resulting from Customer's non-payment of the fees as described in this Agreement.
5.1. Subject to earlier termination as provided below, this Agreement is for the Service Term.
5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and provided the breach is curable, such breach remains uncured for thirty (30) days following notice thereof. Either party may terminate this Agreement through email notification and the non-terminating party must acknowledge receiving this notification to confirm termination. Customer will pay in full all Fees for the Services utilized up to and including the last day on which the Services are provided by Company. All sections of this Agreement which by their nature should survive termination will survive termination , including, without limitation any accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations, dispute resolution and limitations of liability.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY CUSTOMER, OR ANY THIRD PARTY, RESULTING FROM ERRORS OR INTERRUPTIONS IN THE SERVICES.
7.1 Company shall defend, indemnify and hold Customer harmless from any damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) sustained as a result of: (i) any claim or cause of action alleging that the Services infringe upon any United States patent or any copyright or misappropriates any trade secret (“IP Indemnity”); (ii) Company’s gross negligence or willful misconduct in providing the Services; (iii) any claim or cause of action alleging that the Services violates any applicable law, regulation or governmental order or the rights of any third party; or (iv) any unauthorized access, use or disclosure of Customer Data, provided Company is promptly notified of any and all claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement, provided that Customer must approve any settlement in advance that requires Customer to admit fault or requires Customer to refrain from any action; Company will not be responsible for any settlement it does not approve in writing. The foregoing IP Indemnity obligations do not apply, and Company shall not indemnify and hold Customer harmless from any damages, losses, liabilities, settlements and expenses, to any portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials not supplied by Company where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
7.2 Customer shall defend, indemnify and hold Company harmless from any damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) sustained as a result of: (i) any claim or cause of action alleging that Customer Data infringes upon the intellectual property rights of any third party; (ii) Customer’s gross negligence or willful misconduct in using the Services; (iii) any claim or cause of action alleging that Customer’s use of the Services violates any applicable law, regulation, or governmental order or the rights of any third party; or (iv) Customer’s unauthorized access, use or disclosure of User Data or Company’s Proprietary Information, provided that Customer is promptly notified of any and all claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement, provided that Company must approve any settlement in advance that requires Company to admit fault or requires Company to refrain from any action; Customer will not be responsible for any settlement it does not approve in writing.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) EXCEPT FOR COMPANY’S INDEMNIFICATION OBLIGATIONS HEREIN, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.2. Any notice to Customer must be sent to their email address as designated in the form submitted at www.impactive.io/create-an-account.
9.3. Any notice to Company must be sent to naseem@impactive.io and Impactive Solutions Inc., 251 Little Falls Drive, Wilmington, DE 19808, Attn: Naseem Makiya, CEO; with a copy to Maria Simon, which shall not constitute notice, at The Geller Law Group PLLC, 4000 Legato Road, #1100, Fairfax, Virginia 22033, msimon@thegellerlawgroup.com.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without Customer’s consent.
10.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
10.4 The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within thirty (30) days of a dispute being raised by one party with the other party. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
10.5 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
10.6 Company agrees that it is not, directly or indirectly, at any time during the term of this Agreement, and without regard to when or for what reason this Agreement shall terminate, be authorized to communicate with any member of the press, including representatives of both print and electronic media, regarding any aspect of this Agreement, the Services performed by Company under this Agreement, or any knowledge or information relating to the business of Customer, without express prior written approval of Customer or Customer’s authorized representatives. Company shall refer promptly all queries from the press, in whatever form or circumstances they are made, to Customer or Customer’s authorized representatives.
All licenses include a branded digital organizing platform on web and mobile. Premium features will be available at an additional usage cost as described in Exhibit D. Campaign dashboard with the capability to control the entire branded experience including calls to action, campaign content and messaging, logo and images, integrations, and analytics covering program performance. Impactive Digital Team is available to provide digital program services per month including: reporting on program performance, nurturing and activating volunteers, supporting social media amplification campaigns, setting up custom data integrations, and staffer training. Additional fees will apply as described in Exhibit D. Staffer trainings are limited to one training per month.
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of sixty (60) or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with written notice to Company, email to suffice) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing, email to suffice, within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit Customer’s right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) calendar week of Services Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket any time by emailing support@impactive.io.
Company will use commercially reasonable efforts to respond to all helpdesk tickets within one business day.
Company will provide additional support capacity during high levels of anticipated traffic.
Customer is charged in accordance with the License Type and Premium Services selected when submitting the form at www.impactive.io/create-an-account. These may include the following:
Standard License: $50 per month
Professional License: $500 per month
Peer-to-Peer Texting*: $0.03 per SMS / $0.04 per MMS
Broadcast Texting*: $0.03 per SMS / $0.04 per MMS
Phone Banking: $0.05 per call
Voter Registration: $0.08 per registration check
* Text messages are billed in segments of 160 characters for every SMS or MMS message. If emojis are included in a script, messages are instead billed in segments of 67 characters for every SMS or MMS. Texts exceeding these character limits will be billed as multiple messages based on the number of segments.