Red Stampede™ Web Services Agreement

This Red Stampede Web Services Agreement (this “Agreement”) is entered into on the effective date set forth in this document (the “Effective Date”), by and between Red Stampede, LLC, a North Carolina limited liability company with its principal place of business located at 6701 Fairview Road, Charlotte, North Carolina 28210 (“Red Stampede”), and the customer identified in this Order Form, with its principal place of business located at the address set forth on Order Form (“Customer”).   The parties hereby agree as follows:           

1.     Services Provided.

1.1   Application Services.  Subject to the terms and conditions of this Agreement, Red Stampede will make the application services identified on Order Form (the “Application Services”) available to Customer in such a manner that the general public may access the functionality of the Application Services over the World Wide Web.  Provision of the Application Services will commence when password-based administrative access to the Application Services is first made available to Customer (the “Activation Date”).  The Application Services may only be used by Customer for the Customer website(s) referenced in Order Form, and may not be used by Customer to provide services to third parties. Unless written authorization for partners of Red Stampede

1.2   Setup.  In connection with the deployment of the Application Services, Red Stampede will provide the setup services described in Order Form, including product training, graphic design and consulting services.

1.3   Support.  Red Stampede will provide Customer with ongoing support during the term of this Agreement in accordance with Red Stampede’s Customer Support Policy posted on the Red Stampede  website.

2.             Fees and Payment Terms.  Customer will pay Red Stampede the amounts set forth in Order Form for the services provided under this Agreement. Payment from Customer is due within thirty (30) days from the date of invoice.  Customer will be charged a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any undisputed amount not paid when due.  Red Stampede will also receive 6.5% of all transactions, donations and contributions processed through Red Stampede’s online donation module in addition to any merchant Account Gateway and Merchant Services fees required to process online donations. The fees set forth in Order Form do not include taxes. Should we include a statement that customers are responsible for any applicable sales tax? Customer, if requested by Red Stampede, will provide Red Stampede with a certificate of exemption from sales tax in the applicable state(s).  In the absence of an exemption, Customer will reimburse Red Stampede and hold Red Stampede harmless for all applicable sales, use, VAT, excise, property, or similar taxes in connection with the provision of services to Customer by Red Stampede (including any interest or penalties thereon).

3.     Customer Obligations.

3.1   Establishment of Merchant Account. If credit card processing is not included in the Application Services functionality, it is the responsibility of Customer to establish a merchant account from a provider approved by Red Stampede 2 days prior to the sites launch.

3.2   Password Administration; Confidentiality of Administration Tools.  The administration tools will be password-protected and only authorized administrators who have properly registered and received a login ID and password will be able to access the administration tools.  Customer will be solely responsible for administering and monitoring the use of login IDs and passwords.  Customer will not permit anyone other than authorized administrators to view or use the administration tools.  Upon the termination of employment of any authorized administrator, Customer will immediately request Red Stampede to terminate access of the login ID of that individual to the administration tools by calling the Red Stampede customer support number.

3.3  Illegal or Unauthorized Activities.  Customer will conduct all activities through the Application Services in accordance with all applicable laws and will not engage in any illegal activities or make any illegal or unauthorized use of any information collected through the Application Services.

4.       Ownership, Confidential Information and Attribution.  

4.1   Customer Ownership.  Customer will retain all right, title and interest in and to any materials provided by Customer such as content, data, designs, images, templates, sketches, artwork, logos, trade names, trademarks and type, as well as all information processed by the Application Services regarding individual donors or members.

4.2   Red Stampede Ownership.  Red Stampede will retain all right, title and interest in and to all proprietary rights with respect to the Application Services and other services provided hereunder, together with any and all software and other technology that enables the provision of such services, any training materials, product documentation, whitepapers, or deliverables provided by Red Stampede under this Agreement, and any suggestions for modifications or improvements to the Application Services provided by Customer.

4.3   Confidential Information. “Confidential Information” means all information disclosed by one party (“disclosing party”) to the other party (“receiving party”), before or after the Effective Date, and generally not publicly known. Confidential Information of Customer includes, without limitation, identification of, and information regarding, individual donors and members of Customer.  Confidential Information of Red Stampede includes, without limitation, the administration tools, materials in the Red Stampede Customer Center, any and all product documentation, whitepapers, product guides, data sheets and training materials. The terms and conditions of this Agreement are Confidential Information.  Confidential Information does not include information which the receiving party can document:  (i) was in the possession of or known by it without an obligation of confidentiality prior to receipt from the disclosing party, (ii) is or becomes general public knowledge through no fault or acts of the receiving party; (iii) is or becomes lawfully available to the receiving party from a third party without an obligation of confidentiality; or (iv) is independently developed by the receiving party without use of any Confidential Information. The receiving party will protect Confidential Information by using the same degree of care as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, but no less than a reasonable degree of care.  The receiving party will restrict access to Confidential Information to only its employees who require such access in the course of their assigned duties and responsibilities and who have been informed of the receiving party’s obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth herein. In the event that any Confidential Information is required to be disclosed pursuant to any law, code or regulation, the receiving party will give the disclosing party immediate notice thereof and will use its best efforts to seek or to cooperate with the disclosing party in seeking a protective order with respect thereto.

4.4   License. Red Stampede hereby grants Customer a personal non-exclusive, non-transferable license to use the products and services listed on Exhibits A & B (hereafter, "Products"), in accordance with the terms of this contract. Products may only be used in the operations of Customer and may not be transferred, licensed, distributed, rented, leased, loaned, or made available to or for the use of any other person, including any other campaign, consultant, network, candidate, party committee, political action committee, advocacy organization, association, corporation, entity, government agency, multi-user arrangement, service bureau, external time-share, re-seller or similar user or otherwise except as expressly authorized by Red Stampede in writing. In no event shall the Products be used to create original lists for use in connection with any entity other than Customer, in accordance with this agreement.

4.5   Proprietary Rights In and Responsibility For Products. No portion of the Products may be copied into any machine-readable form for use by any entity other than as provided herein. You may not prepare publications or derivative works from the Products for distribution. You may not distribute, redistribute or re-release any portion of the Products for business or commercial purpose. The Product(s) and accompanying documentation comprise valuable proprietary and confidential information of Red Stampede, and others that is subject to legal protection as trade secrets and under the copyright and other laws. You are not authorized to decompile or reverse assemble any aspect of the Products or otherwise attempt to reveal the proprietary programming techniques and structures used in the Products, nor are you authorized to duplicate, transfer, sell or in any manner commercially exploit the Products or any accompanying documentation. Any attempt to sublicense, assign, or transfer any of your rights, duties or obligations hereunder will result in termination of this agreement. Customer acknowledges that Red Stampede owns all right, title, and interest in and to any products, services, tools, know-how, processes, documentation and software used or created by Red Stampede in connection with this Agreement. The Products, in whole and in part, are the personal property of Red Stampede, and all right and title thereto, including copyrights and derivative rights, remain with Red Stampede under this agreement, except as otherwise expressly granted to Customer in writing hereunder.

4.6   Attribution.  Pages of Customer’s website which use the Application Services will include a "Powered by Red Stampede" logo (or other logo provided by Red Stampede) with a link to the Red Stampede home page..

5.     Indemnification.  Red Stampede will indemnify and hold harmless Customer for any claim brought against Customer alleging that Customer’s permitted use of the Application Services constitutes an infringement of any third party United States patent, trademark, trade name, trade secret, copyright, or other U.S. intellectual property rights (other than a claim with respect to content furnished by or on behalf of Customer).  Red Stampede will defend Customer against any such claim at Red Stampede’s cost and pay all settlement payments and damages awarded therein, provided that Red Stampede is given written notice within thirty (30) days of the first date any such claims are brought to Customer’s attention and Customer relinquishes control of defending any such claim to Red Stampede, including the right to settle it.  Customer will assist and cooperate fully with Red Stampede in the defense or settlement thereof.  This Section 5 states the entire liability of Red Stampede with respect to any type of third party infringement claim.  If Customer makes a claim for indemnification hereunder, Red Stampede may, at its option, obtain a license for the continued use of the Application Services or modify the Application Services so that they provide substantially equivalent functions and are no longer infringing, or, if neither of the foregoing alternatives are implemented, terminate Customer’s right to the allegedly infringing Application Services and refund to Customer any amounts prepaid for such Application Services. The limitation of liability provisions of Section 6.3 are not applicable to the application of this Section 5. Customer agrees to indemnify and hold harmless Red Stampede with respect to any damage, fine, attorney's fees, liability or other loss or sanction resulting to Red Stampede from Customer's use of the Product(s), or from any breach of warranty or representation by Customer hereunder. Customer agrees to indemnify and hold Red Stampede harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys' fees) incurred by Red Stampede as a result of any third party claim against Red Stampede pertaining to the content on Customer's website or to any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to Red Stampede by Customer.

6.     Warranty and Limitations.

6.1   Exclusive Warranty.  Red Stampede warrants that the Application Services on and after the Activation Date will perform in all material respects the functions described in the current product documentation for the Application Services.  This warranty does not apply if the Application Services are not administered in accordance with the applicable instructions and training provided by Red Stampede. If the Application Services fail to operate as warranted in this Section 6.1 and  Customer notifies Red Stampede in writing of the nature of the non-conformance (“Notice”), Red Stampede will make commercially reasonable efforts to promptly repair or replace the non-conforming Application Services without charge.  If, after a reasonable opportunity to cure, Red Stampede does not remedy the non-conformance, Customer may no later than sixty (60) days after giving the Notice terminate the Agreement and receive a refund of the prepaid Application Services fees for the period following the date of Notice. Red Stampede warrants that it and its data providers have all rights, title and interest in the Products, and agrees to indemnify and hold harmless the Customer from, and to defend or settle at its option, any claim, dispute or legal action against Customer, the defense of which will be controlled by Red Stampede, that the Products infringe any patent or property right. Red Stampede shall provide periodic updates to the Products and use reasonable efforts to correct any material defect discovered by products. The Products are provided "as is" or as modified over the life of the Agreement. The foregoing provides Customer’s sole and exclusive remedy for breach of the exclusive warranty in this Section 6.1.

6.2   Customer Warranties. CUSTOMER WARRANTS AND REPRESENTS THAT IT WILL USE THE PRODUCTS LAWFULLY AND ONLY ON BEHALF OF ITSELF. IT IS THE CUSTOMER'S RESPONSIBILITY TO DETERMINE VALID AND LEGAL USES, AND, IF INTENDED USE IS RESTRICTED, IN NO EVENT SHOULD USER BE ENTITLED TO A REFUND. PERMITTED USER WARRANTS AND REPRESENTS THAT UNDER FEDERAL, STATE LAWS AND REGULATIONS IT IS A PROPER PARTY TO RECEIVE AND USE THE VOTER LISTS CONTAINED ON THE PRODUCT(S), AND THAT IT SHALL USE THIS PRODUCT(S) ONLY FOR POLITICAL PURPOSES RELATING TO THE ELECTORAL PROCESS IN ACCORDANCE WITH FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS. Certain records in the data may indicate that individuals are listed in federal election commission reports or state contributor reports as political contributors.  By law, the FEC's public record contribution information may not be sold or used by any person for the purpose of soliciting contributions or for any commercial purpose.. Red stampede makes the information available for compliance purposes only, and does not allow for the downloading or importing of FEC contributor information. Customer further agrees, warrants and represents that any information copied from FEC reports or statements may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes, other than using the name and address of any political committee to solicit contributions from such committee, and Customer will abide by all restrictions relating to the use of such data. The User also acknowledges that Red Stampede's data lists have not been run against any Do Not Call lists and that it is the duty of the User to insure compliance with any laws or regulations governing the placement of unsolicited calls. For purposes of any government investigation into Customer's alleged unlawful use of any information hereunder, Customer hereby consents to jurisdiction and venue in the state or jurisdiction whose data is the subject of the investigation, and Customer consents to cooperate reasonably in any such government investigation. This provision is expressly for the benefit of third party government agencies from states or other jurisdictions that have provided information being made available to Customer hereunder, and that have probable cause to investigate activity involving such information. 

6.3   Warranty Disclaimer. Except for the warranties expressly described in this Agreement, Red Stampede makes no other warranties with respect to the Application Services or other services provided hereunder, express, implied or statutory, and disclaims any implied warranties of merchantability, fitness for a particular purpose or any warranty arising from course of dealing, usage or trade practice. Red Stampede does not warrant that the Application Services and the data stored through the use of such services are not susceptible to intrusion, attack or computer virus infection. RED STAMPEDE DOES NOT WARRANT THAT YOUR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE RESULTS OBTAINED FROM ANY RED STAMPEDE PRODUCTS WILL BE SUCCESSFUL OR WILL SATISFY YOUR REQUIREMENTS . NEITHER RED STAMPEDE NOR ANY DATA PROVIDER MAKES ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY OF THE DATA OR THE RESULTS TO BE OBTAINED FROM USING ANY RED STAMPEDE PRODUCT(S). EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER RED STAMPEDE NOR ANY DATA PROVIDER MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE DATA, SOFTWARE OR EQUIPMENT AND IN PARTICULAR NEITHER RED STAMPEDE NOR ANY DATA PROVIDER MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE FOR ANY ITEM PROVIDED HEREUNDER OR ANY INFORMATION CONTAINED THEREON.

6.4   Limitation of Liability.  Red Stampede’s liability for any claim arising under or relating to this Agreement, the Application Services or any other services provided hereunder under any theory of liability including contract, strict liability, indemnity, tort (including negligence) or otherwise, will not exceed the fees paid to Red Stampede for Application Services in the preceding twelve (12) months pursuant to this Agreement. IN NO EVENT WILL RED STAMPEDE OR ANY DATA PROVIDER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DATAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PRODUCT(S) (INCLUDING THE SOFTWARE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPECIFICALLY, NEITHER RED STAMPEDE NOR ANY DATA PROVIDER IS RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOSS OF USE OF THE PRODUCT(S), LOSS OF DATA, THE COSTS OF RECOVERING SUCH PROGRAMS OR DATA, THE COST OF ANY SUBSTITUTE PROGRAM, CLAIMS BY THIRD PARTIES, OR FOR OTHER SIMILAR COSTS.

7.     Term and Termination. 

7.1   Term.  The term of this Agreement is the period beginning on the Effective Date and ending one (1) year after the Activation Date, unless terminated earlier in accordance with this Section 7. 

7.2   Renewal. Upon conclusion of the initial term The Agreement will automatically renew for subsequent terms equal to that of the initial term, and the Customer agrees to pay the then current Fees for each renewal term, unless either party provides sixty (60) days advance written notice to the other of its intent to terminate the Agreement. Time is of the essence for this provision.

7.3   Termination. Either party may terminate this Agreement by written notice if the other party (a) commits a material breach of this Agreement, which breach is not cured within thirty (30) days of written notice thereof. Red Stampede may terminate the Agreement and cancel the License if payment is not received within thirty (30) days after any payment due dates as outlined in the sales order form, unless otherwise agreed in writing. Notwithstanding the foregoing, the Agreement may be terminated by either party immediately upon notice if the other party: (a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an assignment for the benefit of its creditors; or (d) causes a party to be exposed to potential liability to third parties. Upon termination of this Agreement, (i) Red Stampede will immediately terminate provision of the Application Services and other services provided under Section 1,  (ii) and (iii) each party will promptly return or destroy all other Confidential Information obtained from the other party during this Agreement. On each anniversary of the Effective Date, the annual Fees may be adjusted by Red Stampede, as well as the substantive content of this Agreement, but only after Red Stampede has given Customer at least ninety (90) days prior written notice of its intention to do so. Upon receipt of such notice, Customer shall have the right to terminate the Agreement; provided, however, and in accordance with the terms of Section 7 hereof, Customer must provide written notice to Red Stampede at least sixty (60) days prior to the end of the then current Term of the Agreement of its intention to terminate. Customer shall have no right of termination except as expressly provided in paragraphs 7 and 8, and, unless the contract is properly terminated under either or such paragraphs herein, Customer shall be liable for the full Fee amount for any unexpired term, irrespective of whether Customer continues to use any or all Products.  The provisions of Sections 2, 4, 5, 6, 7, 9 and 12 will survive termination of this Agreement.

8.     Publicity.  Red Stampede may identify Customer as a customer of Red Stampede. Red Stampede may issue a press release announcing the relationship formed by this Agreement, which it will provide to Customer for a period of review and comment prior to release.  Red Stampede may issue a press release announcing the results obtained by Customer from using the Application Services.

9.     Governing Law. Any question concerning the validity, construction, or performance of this contract shall be governed by the laws of the State of North Carolina, excluding its conflicts of laws principles. The place of performance of this contract by Red Stampede shall be North Carolina, and Customer consents to exclusive jurisdiction and venue in North Carolina with respect to any litigation or other dispute resolution hereunder.

10.   Dispute Resolution. In the event of a dispute, the parties shall first attempt to resolve the dispute between themselves in good faith and then, if unsuccessful, by commercial mediation. At the request of either party, the other party shall make itself available for mediation within sixty (60) days of the request, using the mediation rules of the Judicial Arbitration and Mediation Service ("JAMS"). If the dispute cannot be resolved in this manner, the dispute shall be resolved by arbitration using the relevant arbitration rules of JAMS, and judgment upon the award rendered by the arbitration tribunal may be entered into any court having proper jurisdiction. Nothing contained herein shall prevent either party from exercising its right to injunctive relief in any court of law in the State of North Carolina having proper jurisdiction. In any litigation or other dispute resolution, the prevailing party shall be entitled to an award of reasonable attorney's fees, costs and any other relief granted.

11.   Legal Advice. Customer shall consult with its own attorneys, accountants, and advisors regarding the effect and operation of this Agreement, including without limitation the tax consequences of this Agreement for Customer; Customer is not relying on Red Stampede, its officers, directors, or shareholders for such advice.