Welcome to eBallot, a network of online voting applications. eBallot consists of various publicly accessible websites found at www.eballot.com and www.eballot.vote. The eBallot applications and online voting applications are owned and operated by Votenet Solutions, Inc.
This Agreement covers Client's use of the web based voting applications (collectively the "eBallot applications"). By using the eBallot applications, Client agrees to be bound by these terms of service.
THIS AGREEMENT DOES NOT COVER USE OF THE EBALLOT PUBLIC WEBSITES.
THIS AGREEMENT DOES NOT COVER USE OF THE EBALLOT APPLICATION, WHICH IS GOVERNED BY A SEPARATE AGREEMENT.
Some sections of this Agreement modify very important rights. In those sections, the text is written in all capital letters. As Client reviews this Agreement, please pay particular attention to those sections in all capital letters.
1. This Agreement
The following sections describe the basic parameters of the Agreement, including requirements for eligibility to use the eBallot applications, modification of this agreement, termination of this agreement, and how eBallot gives notice of changes to this agreement. This agreement was last modified on June 29, 2016.1.1. The Agreement
Client must be fourteen (14) years old or older to purchase a license to use the eBallot applications. Use of the eBallot applications is void where it is prohibited. By agreeing to these terms, Client represents that Client has the right, authority, and capacity to enter into this Agreement, and to abide by all of the terms and conditions of this agreement.1.3. Termination of This Agreement
This Agreement will remain in force for twelve (12) months from the date of registration, or until Client's vote, nomination, or election is complete, whichever period of time is greater. eBallot may terminate this Agreement prior to the natural end of the agreement at its sole discretion as described in Section 1.5 below. Certain sections of this agreement survive termination of this agreement, as described in Section 11 below.1.4. Modification of This Agreement
eBallot may modify this Agreement from time to time and such modification will be effective upon posting on the websites of all of the eBallot applications. Client agrees to be bound to any changes to this Agreement when Client use a eBallot website or eBallot service after any such modification is posted. It is important that Client reviews this Agreement regularly to ensure Client is aware of any changes.1.5. Early Termination of This Agreement
eBallot may terminate this Agreement prior to the natural end of the Agreement described above in Section 1.3 without prior notice and at eBallot's sole discretion. Cause for such termination may include, but is not limited to:
Further, Client agrees that eBallot will make the decision to terminate Client's account at eBallot's sole discretion, and that eBallot will not be liable to Client or to any third party for any damages resulting from termination of Client's account, or loss of access to the eBallot website.1.6. Notices
eBallot may provide Client with notices, including those regarding changes to this Agreement, at eBallot's sole discretion, in any manner eBallot decides, including, but not limited to, posting to one of the eBallot applications, email or regular mail.
2. License Grant
eBallot hereby grants Client a non-exclusive worldwide right to use the eBallot applications solely for legitimate business purposes, subject to the terms and conditions of this Agreement. eBallot agrees to operate and provide its proprietary applications under the terms of this agreement.
This License is limited to the number and type of accounts, time limit and amount and manner of use described on the Order Confirmation Page. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Center.
Additional licenses will be subject to the license fee then current. If this Agreement changes between orders, all licenses are subject to the most recent version of this Agreement, without regard for earlier versions of this Agreement that may have been applicable to earlier license purchases.
3. Client's Obligations
As a part of Client's acceptance of this agreement, and in consideration for eBallot providing continued access to the eBallot applications, Client has certain obligations. These include, but are not limited to, the obligations described in this section.3.1. Client's Registration Obligations
In consideration of Client's use of the eBalllot website, Client represents that Client is of legal age to form a binding contract and are not barred from receiving services under the laws of the United States or other applicable jurisdiction. Client also agrees to: (a) provide true, accurate, current and complete information about Client's self as prompted by the eBallot applications' registration forms (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Client provides any information that is untrue, inaccurate, not current or incomplete, or eBallot has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, eBallot has the right to suspend or terminate Client's account and refuse any and all current or future use of the eBallot applications. By using the eBallot applications, Client represents and warrants that Client has the right, authority, and capacity to enter into this Agreement and will abide by the terms and conditions of this Agreement3.2. Administrator and Voter Accounts, Passwords, and Security
Client is responsible for maintaining the confidentiality of the user information, passwords, and account data required to access the eBallot applications affiliated with Client's account, and are fully responsible for all activities that occur under Client's password or account.
Client's responsibility includes ensuring that voters affiliated with Client's account are aware of the necessity of maintaining the security and confidentiality of user information, passwords, and account data affiliated with Client's account.
Client agrees to
3.3. Client Conduct
Client agree that Client will not use the eBallot applications to:
3.4. No Resale of Services
Client agree not to reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose, any portion of the eBallot applications, use of the eBallot applications, or access to the eBallot applications.3.5. No Competitive Use
Client may not use the eBallot applications if Client is affiliated with a competitor to eBallot as determined at eBallot's sole discretion, either as an officer, employee, agent, or other affiliate without eBallot's prior written consent. Client may not access the eBallot applications for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive reasons.
4. Payment and Payment Schedule Obligations
Access to the eBallot applications is provided for a fee. This section describes Client's obligation to pay the fees charged in the manner described below, in consideration for access to the agreed upon eBallot applications and eBallot applications.4.1. Payment Authorization Requirements
Client must provide eBallot with a valid credit card, or approved purchase order information as a condition to signing up for the applications.
4.2. Payment Obligations
4.3. Payment Confidentiality
Client agrees that Client will not disclose the price of Client's license to use the eBallot applications, or any other terms of Client's agreement to use the eBallot applications without eBallot's prior written consent.4.4. Sales Tax
Client agree to pay any applicable sale tax on amounts due under the terms of this Agreement.
If Client are a tax-exempt organization, Client is responsible for notifying eBallot of Client's tax exempt status. eBallot will not waive or refund sales tax payments unless and until notified by fax of Client's tax exempt status.
Client may fax notification of Client's tax exempt status to 202-737-2283. Such notification must include a federal or state issued tax-exempt identification number.
5. Confidentiality and Trade Secrets5.1. Confidential Information
eBallot acknowledges that all materials communicated in writing, orally or electronically to or otherwise obtained by eBallot from Client or its Clients in connections this Agreement as well as all materials whatsoever created or produced by eBallot therefore (collectively, "Client Confidential Information") constitute valuable, proprietary and privileged property of Client or its Clients. Client acknowledges that all materials which identify or concern past, current or potential members, customers, or Clients of eBallot or its affiliates; information about eBallot's business practices, research, development, plans, or access to eBallot's computer systems; eBallot's computer data processing tapes, record formats, source and object codes which identify or concern past, current or potential customers of eBallot; and any other information or material identified by eBallot as "Confidential" ("eBallot Confidential Information") is valuable and proprietary as to eBallot. Both eBallot and Client agree that no such Confidential Information shall be disclosed by it to any third person (other than in the case of eBallot to eBallot's employees and subcontractors as set forth below) without the consent in advance of the party to whom such Confidential Information belongs. eBallot agrees that it shall be further limited in that, as to its employees and subcontractors, its sole disclosure of Client Confidential Information shall be in performance of this Agreement. Further Client shall continue to maintain all ownership and similar rights to all Client Confidential Information and eBallot shall continue to maintain all ownership and similar rights to all eBallot Confidential Information
Notwithstanding the foregoing, either Client or eBallot may disclose Confidential Information belonging to the other party in response to a subpoena, judicial, administrative or arbitral order, provided that the disclosing party has given prompt notice to and has cooperated with the other in seeking protection against such disclosure at the other party's expense.
It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Section and that either party shall be entitled to specific performance and injunctive or other equitable relief (mandatory or prohibitory) as remedies for any such breach. Neither party will oppose the granting of such relief, and each hereby agrees to waive any requirements for the security or posting of any bond in connection with any such remedy. Such remedies shall not be deemed the exclusive remedies for breach of this Section, but shall be in addition to all other remedies available at law or in equity.
VOTENET and Client shall each take reasonable precautions (having regard to the nature of their respective obligations under this Agreement) to preserve the integrity of Client Confidential Information. All data provided by Client for use with eBallot services will be managed and backed up periodically, using industry standard-grade security protocols and procedures.
Upon notice to eBallot of any unauthorized breach of security, eBallot will take immediate steps to (i) notify Client of the breach; (ii) terminate access through the original password, issue a new password, and/or institute other security measures to eliminate the breach and restore security and all data contained therein; and (iii) take all other steps reasonably requested by Client to ensure the security of Client Information.
To the extent eBallot wishes to use, reproduce, adapt, publish, distribute, and/or display any information or material submitted by Client for incorporation into other works, eBallot will first obtain Client written consent to do so.5.2. Non-Disclosure
eBallot, its employees and subcontractors agree that, except as directed by Client, it will not at any time during or after the term of this Agreement disclose any confidential information to any person whatsoever. Each party acknowledges that the other party may make Confidential Data available to it. The term "Confidential Data" shall include data which identify or concern past, current or eligible voters, Client's of a party or its affiliates, information about business practices, research, development, access to a party's computer systems and plans of a party or its affiliates, and certain computer data processing tapes, record formats, source and object codes, which identify or concern past, current or potential customers of a party or its affiliates; and/or certain information and material identified by a party as "Confidential"; and/or data one party furnishes to the other from its database or third party vendors; and/or data received from one party and enhanced by the other. Confidential Data may be written, oral, recorded, or on tapes. Each party acknowledges that all Confidential Data furnished by the other is considered a proprietary trade secret and is a matter of strict confidentiality. Each party also acknowledges that the unauthorized use or disclosure of any Confidential Data will cause irreparable harm to the other. Accordingly, the parties agree that they shall be entitled to equitable relief, including injunction and specific performance, in addition to all other remedies available at law or in equity for any threatened or actual breach of the provisions contained in this paragraph. No rights or licenses, express or implied, are granted by Client to eBallot under any patents, copyrights, or trade secrets of Client because of or related to this Agreement.
6. eBallot's Intellectual Property
eBallot owns certain valuable intellectual property included in the eBallotwebsite. The following describes Client's license to use that intellectual property, and Client's obligations to use it in accordance with that license.6.1. Ownership of the Information
The eBallot applications contains information, text, software, photos, video, graphics, music, sounds, and other material (called "Materials") that are protected by copyrights, trademarks, trade secrets, patents or other proprietary rights (called "Intellectual Property Rights"). These Intellectual Property Rights are valid and protected in all forms, media and technologies existing now or developed later. All right, title, and interest in these Materials, with the sole exception of any Member provided content, belong solely and exclusively to eBallot.6.2. Use of the Information and Materials on the Website
Except as Client may be expressly permitted by this Agreement, Client may not use, modify, adapt, reformat, download, upload, post, reproduce, broadcast, publish, display, perform, transfer or redistribute any Materials in any form, format or media or by means of any technology without obtaining the prior written authorization of eBallot, and any other owner of the Intellectual Property Rights in such Materials.
Client must have prior written permission from eBallot to reproduce Materials from the eBallot website. If Client reproduce Materials from the eBallot website, Client must preserve any copyright, trademark or other notices contained in or associated with the Materials. This means, among other things, that if the specific Material Client are reproducing does not contain the relevant notices that appear on the website, Client must go to the place on the website where such notices appear and copy them into the Materials Client are reproducing.6.3. eBallot's Copyrights and Trademarks
All copyrights and copyrightable materials which are part of eBallot that are not Member content, including without limitation, the eBallot logos, designs, text, graphics, pictures, photos, files, software, applications, code, hidden text, databases and other files and the selection and arrangement thereof are COPYRIGHT© 2016 Votenet Solutions, LLC, ALL RIGHTS RESERVED.
eBallot and associated logos, graphics and icons in the software are trademarks of Votenet Solutions, LLC and may not be copied, imitated or used, in whole or in part, without the prior written permission of eBallot.
eBallot offers certain services to its Clients. Those services consist of access to online voting software. These sections describe those services, and eBallot's policy for changing those services.7.1. Description Of The Services
eBallot provides users with access to online voting software. The eBallot applications are designed to be accessed through the use of software such as Microsoft Internet Explorer, Firefox, Opera, or other "web browsers." The content of the eBallot applications and the content of the eBallot applications could include inaccuracies, typographical errors or other errors. We make no commitment, nor have any obligation, to update information or material on the eBallot applications. Client should not rely upon any information on the eBallot applications o services in making business, financial, personal or other decisions. Furthermore, eBallot does not sanction or approve the opinions of third parties expressed on the eBallot applications or on web sites linked to the eBallot applications. Client understands and agrees that the eBallot applications are provided "AS-IS" and that eBallot assumes no responsibility for any un-timeliness in delivery, deletion of, mis-delivery of or failure to store any user communications or personalization settings7.2. Modifications To Services
eBallot reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the eBallot applications (or any part thereof) with or without notice. Client agrees that eBallot shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the eBallot applications.
Recognizing the global nature of the Internet, Client agrees to comply with all rules regarding online conduct specific to any geographic location in which Client uses the eBallot website. Client also agrees to comply with any applicable United States export rules that may govern the geographic location in which Client uses the eBallot website.8.3. Limitation on the Privacy of Client's Registration Data and Content
Client agree that eBallot may access, preserve and disclose Client's account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
9. Disclaimers and Limitations
This section includes important disclaimers and limitations on eBallot's liability.9.1. Disclaimer of Warranties
THIS SECTION IS EXTREMELY IMPORTANT. PLEASE READ IT CAREFULLY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE VOTENET APPLICATIONS ARE PROVIDED ENTIRELY "AS IS," WITHOUT ANY WARRANTY WHATSOEVER, AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED, AND CLIENT HEREBY WAIVE ALL SUCH WARRANTIES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM EBALLOT OR THROUGH OR FROM THE EBALLOT APPLICATIONS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.9.2. Limitation of Liability
THIS SECTION IS EXTREMELY IMPORTANT. PLEASE READ IT CAREFULLY
IN NO EVENT SHALL EBALLOT, OUR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AGENTS, AFFILIATES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER INDIRECT (INCLUDING WITHOUT LIMITATION, COST OF COVER) DAMAGES, LOSS OR INJURY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES, CONTENT OR OTHER MATERIALS PROVIDED OR AVAILABLE HEREUNDER, OR USE OF ANY OTHER LINKS OR LINKED WEBSITES, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL BASIS NOW OR HEREAFTER KNOWN.
THE TERM "DAMAGES" INCLUDES, WITHOUT LIMITATION, ATTORNEYS' FEES, LOST PROFITS, PHYSICAL AND/OR PERSONAL INJURY, BUSINESS INTERRUPTION, AND LOSS OF PROGRAMS OR OTHER DATA ON CLIENT'S INFORMATION HANDLING SYSTEM. CLIENT AGREE AND ACKNOWLEDGE THE ECONOMIC TERMS OF THIS AGREEMENT FAIRLY AND EQUITABLY REFLECT THE FOREGOING ALLOCATION OF RISK AND SUCH ALLOCATION OF RISK IS A MATERIAL INDUCEMENT FOR US TO MAKE AVAILABLE TO CLIENT OUR SERVICES, WEB SITE AND OTHER CONTENT AND MATERIALS.9.3. Indemnification
Client agrees to indemnify and defend eBallot and its subsidiaries, affiliates, officers, agents, employees, partners, licensors and licensees from any claim or demand, including attorney's fees and costs, made by any third party due to or arising out of Client's use of the eBallot applications, Client's connection with the eBallot applications, or Client's violation of this Agreement.9.4. No Third Party Beneficiaries
Client agree that, except as otherwise expressly provided herein, this Agreement does not confer and is not intended to confer any rights or remedies upon any person other than Client.9.5. Non-Transferability and No Right of Survivorship
Client agree that Client's right to access the eBallot applications through a membership is non-transferable and any rights to Client's membership or contents within Client's account terminate upon Client's death. Upon receipt of a copy of a death certificate, Client's account may be terminated and all contents permanently deleted.9.6. Assumption of Risk
Client agrees that Client must evaluate and bear all risks associated with, the use of any eBallot applications, including any reliance on the accuracy, completeness, or usefulness of such applications.
10. Dispute Resolution
This section contains agreements regarding how Client and eBallot will resolve disputes between Client, including a clause mandating Arbitration in any dispute, and a clause waiving Client's rights to pursue a class action against eBallot, or a class arbitration against eBallot.10.1. Arbitration
To the extent Client have in any manner violated or threatened to violate eBallot's intellectual property rights, however, eBallot may seek injunctive or other appropriate relief in any court in the District of Columbia, and Client consent to exclusive jurisdiction and venue in such courts.
The arbitration will be held in the District of Columbia before one arbitrator on an individual basis and not as a class action. Client expressly waives any right Client may have to arbitrate a dispute as a class action. Client also expressly waives Client's right to a jury trial. Client may select one of the following arbitration organizations and its applicable rules: the National Arbitration Forum, Box 50191, Minneapolis, MN 55405-0191 (www.arb-forum.com), or JAMS, Two Embarcadero Center Suite 1100 San Francisco, CA 94111 (www.jamsadr.com).
If Client fails to select an arbitration organization within 30 days after notice from eBallot, eBallot may select the organization. Client may obtain a copy of the rules of each organization by contacting the organization. In the event that any Claim cannot be submitted to binding arbitration pursuant to the rules of any such organization, such event shall not affect the enforceability of this clause so long as the Claim may be submitted to binding arbitration with one of the organizations. Client and eBallot shall agree on one arbitrator to conduct the arbitration and the arbitrator shall be selected pursuant to the applicable rules. Each party shall be responsible for its own attorney, expert and other fees, unless such fees are awarded by the arbitrator to the prevailing party.10.2. Arbitration Final
This section includes several important clauses governing the interpretation of the contract, where and under what law disputes may be adjudicated, and other important aspect of the governance of this agreement.11.1. Entire Agreement
This Agreement constitutes the final agreement between Client and eBallot. It is the complete and exclusive expression of Client's agreement on the matters contained herein. All prior and contemporaneous negotiations and agreements between Client and eBallot on matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither Client nor eBallot has relied upon any statement, representation, warranty or agreement of the other party except for those expressly contained in this Agreement. THERE ARE NO CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AGREEMENT, OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT.11.2. Choice of Law, Forum, and Venue
THE LAWS OF THE DISTRICT OF COLUMBIA, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES, GOVERN ALL MATTERS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLETES, INCLUDING, WITHOUT LIMITATION, ITS INTERPRETATION, CONSTRUCTION, PERFORMANCE, AND ENFORCEMENT.
Client have agreed in Section 10 to submit to binding arbitration. However, if Section 10 is found not to have legal affect by any court with jurisdiction over this agreement, jurisdiction over actions arising out of or related to this Agreement, and jurisdiction over eBallot, then if Client bring a legal action or proceeding against eBallot arising out of or related to this Agreement, Client agrees that Client may only bring such action or proceeding in the United States District Court for the District of Columbia, or in any court of the District of Columbia.11.3. Severability and Waiver
eBallot's failure to exercise or enforce any right granted in this Agreement shall not constitute a waiver of such right.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, Client nonetheless agrees that such court should endeavor to give full effect to the parties' intentions as reflected in such provision, and Client agrees that other provisions of the Agreement remain in full effect.11.4. No Agency
This Agreement creates no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between Client and eBallot, and intends no such relationship.11.5. Survival
Sections 9, 10, and 11 will survive the termination or expiration of this agreement.11.6. Claim Time Limitation
Client agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to use of the eBallot applications, or this Agreement must be filed within one year after such claim or cause of action arises or be forever barred.11.7. Captions Not Binding
The captions and numbering of this Agreement are a convenience only and have no legal effect.