RAINEDOUT SERVICE TERMS AND CONDITIONS FOR ORGANIZATIONS AND ACCOUNTS SENDING MESSAGES
WHEREAS Omnilert is an application service provider and is in the business of distributing information and notifications, the content of which is provided by Customer or other authorized third parties to large groups of people (a “Mass Notification System); and
WHEREAS RainedOut is a self-service web-based secure selective Mass Notification System owned by Omnilert, which is intended for use sports organizations, events, groups; and
In consideration of the mutual promises and considerations stated herein, Omnilert and Customer agree as follows:
1.1 Administrator shall mean each person authorized by Customer to create and send Customer Content to Omnilert or to manage Customer’s account with Omnilert.
1.2 Confidential Information shall mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified by the disclosing party (“Discloser”) as confidential or proprietary or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, patented or copyrighted information, computer programs, software, user interfaces, software documentation and/or specifications, formulas, data, inventions, algorithms, techniques, processes, marketing plans, strategies, business models, forecasts, training materials, third-party confidential information, any business terms or agreements related to a business purpose of the Discloser and customer lists.
1.3 Customer shall mean Name of League or Organization.
1.4 Customer Content shall mean the information and notification content supplied to Omnilert by Customer’s agents or employees that is made available to Subscribers via Omnilert services. Omnilert shall have the right to limit the length of the Customer Content so as to be compatible with Omnilert’s then current technical limitations.
1.5 Distribution Point shall mean a communication device or service for dissemination of Customer Content. Examples include but are not limited to a Subscriber’s own message end point, a Customer’s digital signs or billboards, town criers, loudspeakers, Customer-hosted single entry e-mail delivery systems (S.E.E.D.), traditional phones, public address systems or devices, RSS readers, mobile phones with SMS, personal digital assistants, text pagers, and web pages. Customer acknowledges that Omnilert may have a business relationship with vendors of one or more types of Distribution Points, although each such Distribution Point shall be the subject of a separate contract or agreement with the Distribution Point’s vendor.
1.6 RainedOut is the trade name/marketing name of Omnilert through which Omnilert provides its Mass Notification System to sports organizations, events, groups.
1.7 Registration Form is a web-based form provided to Customer by Omnilert to allow Customer’s Subscribers to register to receive Customer Content.
1.8 Subscriber shall mean any person who subscribes with Customer to receive Customer Content.
1.9 Subscriber Information shall mean Subscriber validated information provided to Omnilert via the Registration Form.
1.10 Virus shall mean Trojan Horses, worms, time bots, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, divert, modify, disassemble, expropriate or create derivative works based upon any system, data or personal information.
2. SERVICES PROVIDED: Subject to the terms and conditions of this Agreement, Omnilert shall provide the following Services (“Services”):
2.1 Omnilert shall provide Customer a web-based form for the purpose of allowing Customer’s Administrators to create and send Customer Content to Omnilert for dissemination to Customer’s Distribution Points. Customer’s access to the form shall be via a unique “Smart Code” to be posted/inserted either into Customer’s website or into a webpage supplied to Customer by Omnilert.
2.2 Omnilert shall provide Customer a Registration Form. The Registration Form, sometimes referred to as an “opt-in” form, shall be organic to Customer’s website and, depending on Customer’s election, shall be in appearance either a Customer branded form or an RainedOut branded form. Customer understands and agrees that Omnilert may modify the Registration Form from time to time.
2.3 Omnilert shall allow each Subscriber a unique user name and passcode combination to allow Subscriber to manage his or her subscription account. Subscriber will be able to change the passcode. Omnilert shall take commercially reasonable steps to prevent unauthorized access to the personal information of Subscribers as provided on the Subscriber Registration Form.
2.4 Omnilert shall provide training to Customer’s Administrators in accessing and utilizing Omnilert’s Services. In general, training will be provided via the internet or in a training handbook that can be downloaded from Omnilert’s website.
2.5 Omnilert shall provide support services to Customer 24 by 7, via web-based support, or e-mail.
2.6 Omnilert shall provide support services to Subscribers via e-mail 24 by 7 via email.
3. PRICING FOR SERVICES: RainedOut is a free service for Administrators where the cost is covered by Sponsors.
4. RESPONSIBILITIES OF CUSTOMER: In addition to Customer’s other responsibilities and obligations arising out of the Agreement, Customer shall:
4.1 Provide security for the “Smart Code,” and for the passwords of its Administrators in the same manner and to the same degree as Customer treats the personal information and records of Subscribers.
4.2 Assign authorization and permissions to Customer’s Administrators as Customer shall deem best consistent with its security obligations in paragraph 4.1.
4.3 Compose all Customer Content. Customer and Omnilert agree that Customer shall be solely responsible for the accuracy, completeness, and the sufficiency of the Customer Content.
4.4 Ensure that Administrators are trained in the use of the Omnilert Services.
5. SERVICE AVAILABILITY, RELIABILITY, AND DISRUPTION: Omnilert shall use its best efforts to distribute Customer’s Content to Customer’s Subscribers and Distribution Points, but does not guarantee or promise its efforts will be effective, timely, uninterrupted, or continuous. Customer understands and agrees that Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to injury or death to persons or damage to property or business. Customer understands that distribution of Customer’s Content depends on numerous factors, technologies, and systems, many of which are beyond Omnilert’s authority, control or responsibility. These include, without limitation, the availability of public internet service, whether to Customer, to Omnilert, or to Subscribers; access to the World Wide Web; the availability of cellular phone service; the use of firewalls or blocking filters; denial of service attacks, Viruses, or any other type of malicious attack against Customer, Omnilert, Subscriber, or Distribution Points; losses of power; and any act of God. Further, Omnilert reserves the right from time to time to temporarily reduce or suspend Services. Omnilert will attempt to notify Customer in advance of any such Service reduction or interruption.
6. TERM OF AGREEMENT AND TERMINATION:
6.1 Term of Agreement: The term of this Agreement is a continuous service until terminated by either party
6.2 Termination or Cancellation: Except as otherwise provided, this Agreement may be terminated or cancelled upon the occurrence of one or more of the following:
6.2.1 By either party, if the other party is in default of any material provision hereof and such default is not cured within thirty (30) days after written notice thereof is given to the other party;
6.2.2 By either party, if the other party becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy laws;
6.2.3 By Omnilert, if the law governing this Agreement, its performance, or any obligation arising thereunder, whether to Customer or to a third party, including without limitation Subscriber, imposes upon, implies, or requires of Omnilert duties greater than those expressly agreed to herein by Omnilert.
6.3 Disposition of Subscriber Information Within ninety (90) days after termination of this Agreement, Omnilert shall destroy all Subscriber Information and shall so notify Customer. Nothing in this paragraph shall affect Omnilert’s obligation to archive and retain Customer Content. Omnilert agrees not to knowingly sell, transfer or assign Subscriber Information to any third party without the prior approval of Subscriber.
7.1 Warranties of Omnilert: Omnilert warrants the following:
7.1.1 That its representative has the corporate power and authority to enter into and perform all of its obligations under this Agreement.
7.1.2 That use of Omnilert’s Services does not violate any laws or regulations or infringe upon or misappropriate any intellectual property or proprietary rights of any third party, including, without limitation, copyright, trademark, obscenity, rights of publicity or privacy, and defamation laws, other than any violations that may result from Customer’s Content.
7.1.3 That Omnilert will not knowingly violate any CAN-SPAM or telemarketing laws.
7.2 DISCLAIMER OF ALL OTHER WARRANTIES:
7.2.1 EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 7.1, ABOVE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, OMNILERT SERVICES AND EQUIPMENT ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NEED, PERFORMANCE, EFFECTIVENESS, OR ACCURACY.
7.2.2 OMNILERT DOES NOT WARRANT OR GUARANTEE THAT THE OMNILERT SERVICES WILL BE UNINTERRUPTED IN THEIR AVAILABILITY FOR USE OR WILL OPERATE WITHOUT ERROR.
7.2.3 OMNILERT DOES NOT WARRANT OR GUARANTEE THE EFFECTIVENESS, SUITABILITY, ACCURACY OR TRUTHFULNESS OF CUSTOMER’S CONTENT.
7.2.4 OMNILERT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES COMPLY WITH OR WILL ENABLE CUSTOMER TO COMPLY WITH THE CRIMINAL AWARENESS AND CAMPUS SECURITY ACT OF 1990 (THE “CLERY ACT”) OR SIMILAR STATE OR LOCAL LAWS, STATUTES OR ORDINANCES.
7.3 Warranties of Customer: Customer warrants the following:
7.3.1 That Customer Content shall not:
220.127.116.11 Infringe on any third-party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
18.104.22.168 Violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control);
22.214.171.124 Be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
126.96.36.199 Be obscene or contain child pornography or, if otherwise pornographic or indecent, will be distributed only to people legally permitted to receive such files;
188.8.131.52 Violate any laws regarding unfair competition, anti-discrimination or false advertising; or
184.108.40.206 Contain any Viruses.
7.3.2 That Customer’s representatives have the corporate power and authority to enter into and perform all of its obligations under this Agreement.
8. INDEMNIFICATION: To the fullest extent permitted by applicable law, Customer shall and does agree to save, indemnify, protect, defend and hold harmless Omnilert against any and all liability, claim, judgments, costs and expenses (including reasonable attorney’s fees), or demands of whatsoever kind, including demands arising from injuries to or death of a person, damages to property, or economic loss of whatsoever kind, arising directly or indirectly out of [the Agreement or] any Customer Content, including its accuracy, completeness, or sufficiency; by a person, entity, or governmental agency who is not a party to the Agreement, including without limitation, Subscriber. The obligations of this paragraph shall survive termination of this Agreement for a period of five (5) years. Customer shall promptly give Omnilert written Notice of any action, administrative or legal proceeding or investigation as to which this Indemnification may apply, and Customer, at Customer’s expense, shall assume on behalf of Omnilert and conduct with due diligence and in good faith the defense thereof with counsel satisfactory to Omnilert; provided; however, that Omnilert shall have the right, at its option, to be represented therein by advisory counsel of its own selection and at its own expense. In the event of failure by Customer to fully perform in accordance with this Indemnification paragraph, Omnilert, at its option and without relieving Customer of its obligations hereunder, may so perform, but all costs and expenses so incurred by Omnilert in that event shall be reimbursed by Customer to Omnilert.
9. THIRD PARTY PROVIDERS: Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and understands that Omnilert utilizes and/or relies upon various third parties to provide components of the Services, including without limitation their services, equipment, infrastructure or content. Omnilert is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure or content.
10. LIMITATION OF LIABILITY:
10.1 In the event Omnilert is unable to transmit Customer’s Content for more than a cumulative total of nine hours during the Term of this Agreement, beginning with Agreement’s Effective Date, then Customer’s sole remedy shall be a refund of Customer’s payments with accrued interest at the prevailing prime rate as published in the Wall Street Journal for Services rendered during that Term.
10.2 IN NO EVENT SHALL EITHER OMNILERT OR CUSTOMER BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, EVEN IF THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
11. NO THIRD PARTY BENEFICIARY: Nothing in this Agreement is intended to confer and shall not confer upon any other person or entity, including but not limited to any Subscriber or Distribution Point vendor, any rights or remedies with respect to the subject matter of this Agreement.
12. RIGHTS OF OWNERSHIP: Except as stated otherwise in the Agreement, all present and future rights, title, and interest to a party’s intellectual property, including any rights in and to any information or works contributed by a party under the Agreement shall at all times be and remain the sole and exclusive property of such party.
13. MISCELLANEOUS PROVISIONS:
13.1 Individual Contractor Status: Omnilert performs this Agreement as an independent contractor, not as an employee of Customer. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Omnilert and Customer.
13.2 Assignment: This Agreement shall not be assigned by either Omnilert or Customer without the prior written consent of the other, which shall not be unreasonably withheld. Any attempted assignment in violation of this provision shall be null and void.
13.3 Notice: All notices or other communications referenced under this Agreement shall be made in writing and sent:
525-K East Market Street
Leesburg, Virginia 20176
All notices will be deemed given to the other if delivered, receipt confirmed, using one of the following methods: overnight mail; registered or certified mail, postage prepaid; recognized courier delivery; or electronic mail.
13.4 Waiver: No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.
13.5 Governing Law: The execution, interpretation, construction, and performance of this Agreement shall be governed by the laws of the Commonwealth of Virginia, exclusive of its conflicts of law provisions.
13.6 Arbitration: In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered and conducted by The McCammon Group according to its standard arbitration rules governing at the time one of the parties initiates a claim. The substantially prevailing party, as determined by the arbitrator, shall be entitled to recover all costs and expenses, including the costs of arbitration and reasonable attorney's fees. The site of the arbitration shall be Loudoun County, Virginia unless the parties both agree to another Venue.
13.7 Entire Agreement: The Agreement is the complete and exclusive Agreement between the parties with respect to the subject matter contained in the Agreement, superseding and replacing any and all prior Agreements, communications and understanding, marketing materials and internet content, written or oral, pertaining to the subject matter of the Agreement.