WHEREAS, AssociationREADY provides data and software application hosting services to its customers through its ReadyCOLLECT Hosting Service Website; and
WHEREAS, Customer desires to use the ReadyCOLLECT Hosting Service Website at rc2.readycollect.com and all services and content available on or through such Website (the ReadyCOLLECT service website and any and all services and content available on or through the ReadyCOLLECT Hosting Service Website are hereinafter collectively referred to as the "Website"); and
WHEREAS, AssociationREADY agrees to host Customer’s data through the Website in accordance with the terms set forth hereinbelow, and Customer also agrees to such terms.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, Customer and AssociationREADY, both intending to be legally bound hereby, agree as follows:
- Description of Services Provided
Subject to Customer’s continued compliance with this Agreement, AssociationREADY agrees to host Customer’s data as agreed to in writing by the parties during this Agreement (“Hosted Data”) and provide dedicated application-level access thereto to Customer. The Hosted Data will be installed on and accessed via a server area designated for Customer (the “Server”). Subject to Customer’s timely payments and its compliance with this Agreement, AssociationREADY grants to Customer, as of the Effective Date, the right to access the Hosted Data.
- Fees and Rates
Customer agrees to pay for the use of the Website according to the Service Schedule attached hereto as Exhibit “A” and incorporated herein by reference. Customer shall pay AssociationREADY within thirty (30) days after the date shown on each invoice. Payments received more than forty-five (45) days after the invoice date shall be subject to a surcharge of 1½% per month of the outstanding balance, or the highest rate permitted under applicable law, whichever is less.
In addition to the fees set forth in the Services Schedule, Customer agrees to pay AssociationREADY for requested custom support which falls outside of the scope of the services described in this Agreement, at AssociationREADY’s then-current hourly rate (currently $250.00 per hour) in increments of thirty (30) minutes. Such custom support includes, but is not limited to, custom programming, custom data updates, and custom report production. AssociationREADY reserves the right to estimate such fees in advance and require full or partial payment of such fees prior to commencing such custom services.
- Limited License and Use of Website
3.1 Customer is granted a non-exclusive, non-transferable, revocable license to access and use the Website, and such other related services, strictly in accordance with the terms of this Agreement. Customer may not make any other use of the Website without AssociationREADY's express consent. AssociationREADY will send Customer access information to access the Website within four (4) business days of Customer’s registration.
3.2 Customer agrees to use the Website at its own risk. Customer is responsible for all activity occurring under its account or through access or use of the Website through its facilities (including all acts and omissions of its users). Customer will keep all of its account information, including user IDs and passwords, confidential. Customer agrees to and is bound by any and all changes Customer make to its account while using the Website. Customer is responsible for any and all of its input errors or typographical errors related to information Customer provides to AssociationREADY via the Website.
3.3 Except as expressly authorized by AssociationREADY, Customer shall not and shall cause all of its users to not (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available the Website to any third party in any way, (b) access the Website in order to build a competitive product or service, (c) copy, modify, harvest data from, or make any derivative works based upon the content found on the Website, (d) use, modify, copy, print, display, reproduce, distribute, manipulate, or publish any content or software found on the Website, (e) use any data mining robots, or other data gathering and extraction tools, scripts, applications, or methods on the Website, (f) use any device, software, or hardware to bypass any operational element or to interfere, or attempt to interfere, with the proper working of the Website, or (g) reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules, or other protection measures applicable to the Website.
- Intellectual Property
Except for the limited license contained in Paragraph 3.1 above, nothing in this Agreement grants or should be construed to grant to Customer any licenses or rights under copyright or other intellectual property rights. All rights, title, and interest (including all copyrights, trademarks, service marks, patents, and other intellectual property rights) in the Website belong to AssociationREADY or AssociationREADY's licensors, as applicable, and all such rights are reserved. All name, logo, and products' and services' names and logos associated with AssociationREADY's service offerings, including, but not limited to, the names "AssociationREADY", "ReadyCOLLECT", and "ReadyResale" are trademarks or service marks of AssociationREADY's or third parties, and no right or license is granted to Customer to use them for any purpose whatsoever
- License of Customer’s Content
By uploading or submitting any of its Content (as such term is defined below) for use on the Website, Customer grants AssociationREADY a perpetual, royalty-free, irrevocable, fully paid-up, non-exclusive right and license to use, reproduce, modify, adapt, and display, translate, create derivative works from, and distribute such of Customer’s Content or incorporate such of Customer’s Content into any form, medium, or technology now known or later developed, to the extent necessary to provide Customer with use of the Website.
6.3 Customer agrees that when accessing the Website or the Hosted Data, or allowing others to access the Website or the Hosted Data, all user activity may be monitored, recorded and disclosed by AssociationREADY for any lawful purposes, including the management and maintenance of servers, to ensure that the servers are protected against unauthorized access or utilization, and to verify security procedures, survivability and operational security. Customer agrees that use of the Website or the Hosted Data by any user, authorized or unauthorized, constitutes express consent to monitoring and recording of user activity.
- Confidentiality of Customer Data.
7.1 “Customer Data” means all data and information relating to Customer’s business provided to, generated, collected, processed, or stored by AssociationREADY in connection with the Hosted Data. “Customer Data” does not include data created by AssociationREADY related to Customer or Customer’s use of the Website (such as, but not limited to, data regarding cost, usage, analytics, etc.).
7.2 Customer retains ownership of all Customer Data received by AssociationREADY. AssociationREADY acknowledges that Customer Data is confidential and/or proprietary to Customer. AssociationREADY agrees not to disclose to any third party any Customer Data without Customer’s prior written consent, unless required to do so by subpoena, court order, or other lawful directive (as discussed further below) or unless requested by licensors of Hosted Data, and then, with regard to such licensors, disclosing only information regarding the number and type of Customer’s licenses in use. In either of the foregoing two events, AssociationREADY will notify Customer of such requests, unless disclosure is prevented by law. If AssociationREADY becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any Customer proprietary information, AssociationREADY shall provide Customer with prompt written notice, unless such notice is prohibited by the order or request, so Customer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Section 7.2. If such protective order or other remedy is not obtained, or compliance with the provisions of this Section 7.2 is waived, AssociationREADY shall disclose only the minimum amount of Customer proprietary information that is legally required and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to Customer’s proprietary information so disclosed. AssociationREADY shall not be liable for any disclosures made in compliance with this Section 7.2.
- Website Availability
8.1 AssociationREADY is fully committed to providing quality service to all Customers. AssociationREADY will use commercially reasonable efforts to have the Website available 24 hours per day, 7 days per week, excluding any (i) scheduled maintenance as described below, (ii) unscheduled maintenance downtime, or (iii) emergencies due to events beyond its control (scheduled maintenance and unscheduled downtime together are referred to as “Downtime”). AssociationREADY’s goal is to maintain not less than a 99% monthly average of scheduled availability of the Website. Availability is defined as Customer’s ability to connect to Customer’s Content through a web browser, or if Customer is unable to do so, that such inability is not through the fault of Customer.
8.2 To ensure optimal performance of the Website, AssociationREADY performs maintenance on a routine basis. Such maintenance often requires taking AssociationREADY’s servers off-line. AssociationREADY reserves the right to perform scheduled maintenance, during which time some or all of the services provided on the Website or the Hosted Data may not be available or may have slow response times. This unavailability is not included in Downtime calculations. Normal scheduled Downtime is during off-peak hours (12:00 midnight- 6:00 AM, prevailing Eastern US Time). AssociationREADY will use commercially reasonable efforts to send advance notice to Customers of scheduled maintenance.
8.3 Unscheduled maintenance may be required to resolve issues that are critical for Customers and/or performance of the Website. AssociationREADY will notify Customers when possible via email prior to any unscheduled maintenance. When and where practicable, we will try to conduct unscheduled maintenance between 12:00 midnight and 3:00 AM, prevailing Eastern US Time.
8.4 Customer also understands that the Website may be inaccessible during periods of time wherein Customer has scheduled upgrades or modification. Maintenance times noted above are approximate, and AssociationREADY reserves the right to change such times. If maintenance standard times are changed, AssociationREADY will notify Customer of such changes.
8.5 “Availability” means AssociationREADY’s ability to pass incoming and outgoing TCP/IP traffic. Interruptions of service or access due to problems with Customer’s ISP or connection or routing issues on Customer’s network to the Server are beyond AssociationREADY’s control and are not included in Downtime calculations. Interruptions of service caused by denial of service or similar attacks are beyond AssociationREADY’s control and are not included in Downtime calculations. Interruptions of service caused by a Force Majeure Event are not included in downtime calculations.
8.6 A “Force Majeure Event” means a cause or event beyond the reasonable control of AssociationREADY, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, pandemics or epidemics; (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; or, (vii) national or regional shortage of adequate power or telecommunications or transportation. Any delay in performance by AssociationREADY caused by a Force Majeure Event is not a breach of this Agreement, and such delay in performance is not included in the calculation of Downtime. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. If the Force Majeure Event renders the services provided by the Website completely unavailable for more than thirty (30) consecutive days, Customer may terminate the Agreement upon written notice to AssociationREADY, in which case, if Customer promptly requests in writing, Customer will receive a credit of prepaid fees starting from the beginning of the period of unavailability due to such Force Majeure Event.
8.7 AssociationREADY provides performance credits set forth below. Upon Customer’s written notice to AssociationREADY, if the services to be provided herein (excluding those items not included in Downtime calculations as set forth herein) become unavailable to Customer for more than 24 consecutive hours, then for each day or partial day thereafter in that same calendar month for which the services remain unavailable until they are available for 24 consecutive hours (the “Credit Period”), AssociationREADY will provide a credit to Customer for each partial or full day during such Credit Period.
In order to receive the credit, Customer must specifically request it during the month following the month for which the credit is owed. Customer must provide all dates and times of unavailability along with Customer’s account username. This information must be submitted to AssociationREADY’s Connectivity Support Department. AssociationREADY will compare information provided by Customer to the availability monitoring data that AssociationREADY maintains. A credit is issued if the unavailability warranting the credit is confirmed. NOTWITHSTANDING ANYTHING IN THIS SECTION 8.7 OR ELSEWHERE IN THIS AGREEMENT TO THE CONTRARY, THE TOTAL CREDIT TO CUSTOMER FOR ANY MONTH SHALL NOT EXCEED 50% OF THE MONTHLY FEES CHARGED FOR THE CALENDAR MONTH FOR WHICH THE CREDIT IS TO BE ISSUED. IN ADDITION, CUSTOMER SHALL NOT BE ENTITLED TO ANY CREDIT IF CUSTOMER’S ACCOUNT IS PAST DUE OR SUSPENDED.
- Data Security
9.1 AssociationREADY shall maintain a written information security program, and use technical, operational, and logical measures commercially reasonable in the hosted software industry which are designed to: (i) preserve and protect the security, availability, integrity and confidentiality of Customer Data, and (ii) protect Customer Data against unauthorized access, loss, destruction, or alteration.
9.2 AssociationREADY will provide access to the applicable server to authorized individuals with user passwords assigned to Customer, authorized AssociationREADY personnel and, where necessary, its service providers. At all times during this Agreement, Customer shall designate one or more employees to serve as the “User Administrator” for Customer. The User Administrator shall solely be responsible for authorizing, issuing and deauthorizing a login name, password, and any other credentialing information (collectively, “Login Credentials”) to its authorized users (“Authorized Users”), administering security profiles of Authorized Users, and inputting data regarding the Authorized Users. Customer agrees that each Authorized User will be assigned unique Login Credentials, and that no Login Credentials will be shared or otherwise utilized by two or more individuals at any time. Customer shall be solely responsible for the security of Login Credentials issued to each Authorized User. Customer shall timely deauthorize all Authorized Users that are no longer to have access. Customer agrees to comply with the procedures specified by AssociationREADY from time to time regarding obtaining and updating passwords or other security measures. Customer is responsible for all acts and failures to act of its Authorized Users, and for ensuring that all Authorized Users are permitted by applicable law to access the Customer Data. AssociationREADY shall have no responsibility or liability for any damage or loss to Customer or third parties caused by the failure of Customer to deauthorize an Authorized User (e.g., a terminated employee).
9.3 Customer acknowledges and agrees that the safety and security of Customer’s information also depends on Customer. Customer’s users (“Users”) should maintain good internet security practices. Users are responsible for keeping passwords confidential. Users should not share their password with anyone. Users must prevent unauthorized access to User’s account by selecting and protecting User’s password appropriately and limiting access to User’s computer or mobile device and browser by signing off after User has finished accessing the account. If a User’s email or other account is compromised, this could allow access to User’s account with AssociationREADY, especially if User has given up those details and/or permitted access through those accounts. If User’s account is compromised, it could be used to ask AssociationREADY to reset a password and gain access to Customer’s account. If a User thinks that any account has been compromised, the User should change the account credentials, and in particular make sure any compromised account does not allow access to Customer’s account. The information Users share in public areas may be viewed by other users. AssociationREADY will never email a User to ask for a password or other account login information. If a User receives an email with such a request, please send it to AssociationREADY so the matter can be investigated.
9.4 AssociationREADY shall back up all Customer Data daily, seven days per week for which commercially reasonable measures standard in the hosted software industry have been implemented which are designed to isolate such location and backups from ransomware and other malware attacks of Customer’s and AssociationREADY’s computers, systems, and networks, and, AssociationREADY shall verify the effectiveness of such backups at least on a calendar monthly basis. Daily data backups are retained for not less than fifteen (15) days.
9.5 AssociationREADY maintains a written disaster recovery and business continuity plan, as well as appropriate information security measures with appropriate written policies, standards, and procedures, including administrative, technical, physical and logical security procedures with respect to its access and maintenance of the Website and any Customer Data contained therein. AssociationREADY uses reasonable measures designed to secure and defend its location and equipment against intruders. AssociationREADY periodically tests its systems for potential security breaches. AssociationREADY will limit access to the applicable systems to authorized individuals with user passwords assigned to Customer, and authorized AssociationREADY agents and personnel. AssociationREADY shall be responsible for performing, managing, and monitoring of the backups made by AssociationREADY and restore processes for Customer Data. A secure electronic copy of Customer Data shall be maintained offsite or at AssociationREADY’s disaster recovery site as determined by AssociationREADY.
9.6 Customer agrees to and does hereby release and forever discharge AssociationREADY and its affiliates, subsidiaries, parents, officers, directors, employees, successors and assigns and contractors (collectively the “AR Indemnitees”), and Customer will indemnify, defend and hold the AR Indemnitees harmless, from any and all past, current, and future liability, claims, demands, damages, losses, fines, penalties, assessments, private rights of action, or other actions, of whatever kind of nature, either in law or equity, as well as costs (including, but not limited to, attorneys’ fees and costs), which arise from any failure of Customer or its service providers to maintain the security of Customer’s email or other accounts which results in unauthorized access by a third party to such account.
9.7 If Customer Data is corrupted, rendered unavailable, or lost due to system outage, application error or customer error AssociationREADY will only be responsible for recovering the Customer Data to a specific point in time, based on the most recent available backup. AssociationREADY is not liable for Customer Data that has become corrupted, rendered unavailable, or lost after the most recent backup that AssociationREADY has done.
9.8 AssociationREADY routinely deletes Customer Data (including from backups) after thirty (30) days after any termination of a customer’s Service.
9.9 As a condition of utilizing the Website, Customer acknowledges and agrees that AssociationREADY may disclose Customer Data to AssociationREADY’s affiliates, subsidiaries, parents, and service providers, but only as may be required to provide the services included with the Website. All such entities shall be underwritten obligations of confidentiality to maintain Customer Data as confidential.
9.10 Customer acknowledges that AssociationREADY has the right to investigate and act on any violation of this Agreement, including, but not limited to, intellectual property, publicity and privacy rights infringement, and security issues, to the fullest extent of the law. AssociationREADY may involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement. Customer acknowledges that AssociationREADY has no obligation to monitor Customer’s access to or use of the Hosted Data or technical connectivity support, but AssociationREADY has the right to do so for the purpose of providing the Hosted Data, to ensure Customer’s compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body. Customer understands and agrees that AssociationREADY may disclose information that Customer or Customer’s users upload to or obtain from the Hosted Data if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request, or if AssociationREADY believes that such action is necessary to (i) conform to the law, comply with legal process served on AssociationREADY or its affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (ii) to enforce this Agreement (including for billing and collection purposes), take precautions against liability, to investigate and defend itself against any third-party claims or allegations, or to assist government enforcement agencies; or, (iii) to exercise or protect the rights, property, or the safety of AssociationREADY , its users, or others.
- Customer’s Representations and Warranties
10.2 Customer represents and warrants to AssociationREADY that the server content being hosted by AssociationREADY shall not be used in connection with any illegal activity.
10.3 Customer represents and warrants to AssociationREADY that Customer shall use commercially reasonable efforts to prevent any Malware (as defined below) to be uploaded to AssociationREADY’s servers or to the Hosted Application. “Malware” means any of the following: computer instructions or code that can alter, destroy, shut down, lock out, lock up, encrypt, inhibit or interfere the operation of or access to computer software, databases, data, network, servers, or any related computer environment, including but not limited to other programs’ data storage and computer libraries; programs that self-replicate without manual intervention; instructions programmed to activate at a predetermined time upon a specified event; programs that permit unauthorized access to computer software or hardware or databases; programs that purport to do a meaningful function but are designed for a different and harmful function; and, programs that perform no useful function but utilize substantial computer, telecommunications, memory, or other resources, including viruses, Trojan horses, botnets, spiders, time bombs, protect codes, data destruction keys, trap doors, kill switches, DDOS (distributed denial of service) code, and similar code or devices.
- Data Storage
AssociationREADY shall store Customer’s Content for a period of sixty (60) months from the date Customer inputs such content onto the Website, unless this Agreement is terminated earlier. After the sixty (60) month period, AssociationREADY may remove and delete Customer’s Content from the Website without notice to Customer (unless there is a specific agreement with Customer to store Customer’s Content for a longer period of time). AssociationREADY may remove and delete Customer’s Content from the Website thirty (30) days after this Agreement is terminated without notice to Customer.
- Operating Systems and Programming Language
Customer understands that Customer’s use of the Website requires a properly configured computer system with an operating system including an internet browser. Customer must also have an Internet connection to be able to use the Website. AssociationREADY is not responsible for supplying any computer hardware, programming language, operating system, Internet browser, or Internet connection to Customer. AssociationREADY is not responsible for degradation in the performance of the Website due to Customer’s use of slow or low speed Internet connections or routing issues or Customer’s use of, or access to the Website through emulation software.
- Changes and Modifications to Website
AssociationREADY may make improvements, deletions, modifications, and/or changes to the features, functionality, or content of the Website, or shut down the Website, at any time without any notice or liability to Customer.
THE WEBSITE (INCLUDING ALL SERVICES, SOFTWARE, CONTENT, AND OTHER INFORMATION, MATERIALS, AND PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE WEBSITE) IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND FROM ASSOCIATIONREADY. ASSOCIATIONREADY EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ASSOCIATIONREADY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM, DATA, OR CONTENT, (B) THE WEBSITE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) THE WEBSITE OR ANY SOFTWARE, CONTENT, INFORMATION, MATERIALS, OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE WEBSITE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (D) THE QUALITY OF ANY CONTENT, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER, DIRECTLY OR INDIRECTLY, THROUGH THE USE OF THE WEBSITE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
FURTHER, ASSOCIATIONREADY DOES NOT REPRESENT OR WARRANT THAT THE DATA INPUTTED OR THE CALCULATIONS DERIVED THEREFROM WILL BE ACCURATE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO VERIFY THE DATA INPUTTED INTO THE SERVER AND THE CALCULATIONS RESULTING FROM SUCH DATA.
- Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ASSOCIATIONREADY OR ITS AFFILIATES, OR ANY OF ASSOCIATIONREADY’S RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE WEBSITE, THE CONTENT, OR THE CUSTOMER DATA, FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COMPUTER FAILURE OR MALFUNCTION; (B) ANY ACTION CUSTOMER TAKES BASED ON THE INFORMATION CUSTOMER RECEIVES IN, THROUGH, OR FROM THE WEBSITE; (C) CUSTOMER’S FAILURE TO KEEP PASSWORDS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE; (E) TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS. (F) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; OR (G) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ASSOCIATIONREADY DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE, OR (II) $10,000.00. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ASSOCIATIONREADY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. ASSOCIATIONREADY DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE HOSTED DATA OR THE WEBSITE, OR ANY RELATED SERVICES. THE OPERATION OF HOSTED DATA MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE ASSOCIATIONREADY’S CONTROL. UNDER NO CIRCUMSTANCES SHALL ASSOCIATIONREADY BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF THE HOSTED DATA, INCLUDING BUT NOT LIMITED TO RELIANCE BY CUSTOMER ON ANY INFORMATION OBTAINED FROM THE HOSTED DATA OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. CUSTOMER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, CUSTOMER DATA, AND INFORMATION SUBMITTED TO ASSOCIATIONREADY OR TO THE HOSTED DATA.
15.3 IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF CUSTOMER IS A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE § 1542, CUSTOMER HEREBY WAIVES SUCH PROVISIONS OR PROTECTIONS.
15.4 This Section 15 shall survive the expiration or termination of this Agreement.
16.1 Customer agrees to indemnify, defend and hold harmless AssociationREADY, together with its agents, representatives, officers, directors, shareholders, owners, members, attorneys, and employees, from any and all third-party claims, judgments, damages, penalties, fines, costs, losses or liabilities (including without limitation, reasonable attorneys’ fees and court costs) (collectively, “Losses”), to the extent that such Losses are proximately caused in whole or part by the breach of this Agreement by Customer or the negligent act or omission or willful misconduct of Customer or anyone who uses the Website on Customer’s behalf, whether authorized to do so or not.
16.2 AssociationREADY agrees to indemnify, defend and hold harmless Customer, together with its agents, representatives, officers, directors, shareholders, owners, members, and employees, from any and all Losses, to the extent that such Losses are proximately caused in whole or part by the breach of this Agreement by AssociationREADY or the grossly negligent act or omission or willful misconduct of AssociationREADY.
16.3 This Section 16 shall survive the expiration or termination of this Agreement with respect to any Losses occurring before such expiration or termination.
- Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692- 1692p
Customer acknowledges and agrees that AssociationREADY’s services as set forth herein do not include attempts to collect a debt and that AssociationREADY is not otherwise a “debt collector” as defined by 15 U.S.C. § 1692a of the Fair Debt Collection Practices Act, or any similar state statute (“FDCPA”). As such, Customer agrees to indemnify, defend and hold harmless AssociationREADY, together with its agents, representatives, officers, directors, shareholders, owners, members, and employees, from any and all Losses resulting from allegations that AssociationREADY violated the FDCPA, to the extent that such allegations relate to services provided to Customer as set forth herein.
- Termination of Agreement/ Suspension of Service
18.1 The term of this Agreement will begin on the date of Customer’s registration and will remain in full force and effect for an initial term of one (1) year subject to earlier termination as otherwise provided in this Agreement, with the said term being automatically extended in one (1) year increments without notice to Customer, unless terminated by either party upon sixty (60) days written notice prior to the next annual renewal date.
18.2 Either party may terminate this Agreement if the other party is in default thereof and, other than payment obligations by Customer, has not cured such default within thirty (30) days of receiving written notice thereof.
18.3 AssociationREADY may terminate this Agreement immediately, with or without notice, and without Customer having the opportunity to cure, if Customer’s use of the services provided herein is abusive or unnecessarily or illegally harasses AssociationREADY or third parties, or for non-payment of fees due, or if Customer’s activities deface, defame, embarrass, harm, abuse, threaten, slander or harass third parties, or for activities prohibited by laws in territories where Customer conducts business, or for Customer’s practices which encourage unlawful behavior by others. Customer’s use of the Website may be suspended or terminated if Customer’s use of the Website results in, or is the subject of, legal action or threatened or proposed legal action, even if such action is proven to be without merit. AssociationREADY has no responsibility to monitor Customer’s utilization of technical connectivity support, but AssociationREADY reserves the right in its sole discretion to do so.
18.4 Customer covenants and agrees that upon termination of this Agreement, regardless of the party who terminated this Agreement and regardless of the cause or lack of cause of such termination, Customer shall immediately cease and desist from using the Website.
18.5 In addition to the right of termination, AssociationREADY may suspend or restrict Customer’s access to the Website, in whole or in part, for any period in which Customer becomes more than forty-five (45) days late in payment of an invoice to AssociationREADY. AssociationREADY may also suspend or restrict access to the Website, in whole or in part, upon notice to Customer, if: (a) AssociationREADY reasonably believes that Customer has violated any applicable law which may have a potentially adverse effect on AssociationREADY or its other customers; (b) AssociationREADY reasonably believes that it is necessary to protect the servers, systems, infrastructure, data, or information of AssociationREADY or its respective third-party providers or other customers, from a denial of service attack, security breach, introduction of a virus or other malware, ransomware attack, or similar event; (c) requested or ordered to do so by a law enforcement agency, government agency, or similar authority; or, (d) Customer fails to cooperate with AssociationREADY to investigate suspected violations of this Agreement. Upon removal, cessation or mitigation of the underlying cause for any of the above that occurs, AssociationREADY will resume providing access to the Website to Customer.
19.1 The provisions of this Agreement are intended to be enforceable in accordance with their terms, and whenever possible, this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any clause of this Agreement shall be prohibited by or invalid under such law, such clause shall be deemed ineffective to the extent of such prohibition or invalidity, and such clause shall be severed from the remainder of this Agreement without invalidating the remainder of any provision containing such clause or the remaining provisions of this Agreement.
19.2 This Agreement is governed by the laws of the State of Georgia without regard to its conflict of laws provisions.
19.3 In the event of any breach of any part of this Agreement, the non-breaching party shall be entitled to equitable relief, including temporary and permanent injunctions and restraining orders.
19.4 Any waiver of rights or remedies for breach of this Agreement shall not be valid unless made in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no previous waiver of any past or present right arising from any breach or failure to perform shall be deemed a waiver of any subsequent breach or of any future right arising under this Agreement.
19.5 This Agreement, together with any exhibits or addenda attached hereto, constitute the entire agreement between Customer and AssociationREADY with respect to the subject matter hereof. This Agreement and the attached exhibits and addenda supersede any other discussions, agreements, representations, or promises between the parties relating to the subject matter of this Agreement, whether written or oral, and this Agreement cannot be amended, except by a written document signed by the party to be charged with the amendment. In the event of a conflict between the terms of the Agreement and the terms of any exhibit or addendum to the Agreement, the terms of the exhibit or addendum shall control.
Provided, however, that notwithstanding anything contained in this Agreement to the contrary, AssociationREADY reserves the right to change the terms and provisions of this Agreement at any time. In order to effectuate such change(s), AssociationREADY shall provide written notice of such change(s) to Customer by electronic mail, including any amendments or addenda that require Customer’s signature. In the event that Customer fails or refuses to sign such amendment(s) or addenda, Customer shall be in default of this Agreement, and AssociationREADY shall have the right to terminate this Agreement upon thirty (30) days’ notice to Customer in accordance with Section 17.2 of this Agreement.
19.6 The rights and obligations placed on Customer under this Agreement may not be assigned; however, all of Customer’s successors-in-interest, affiliates, and subsidiaries shall be bound by the terms hereof.
19.7 Time is of the essence in this Agreement.
19.8 Any action brought by Customer or by AssociationREADY relating to any dispute arising in connection with this Agreement shall be brought only in either a state court of competent jurisdiction located in Gwinnett County, Georgia or in the Atlanta Division of the United States District Court for the Northern District of Georgia. The parties agree that only those courts (or either of them) shall have exclusive personal and subject matter jurisdiction and venue in such action. Neither AssociationREADY nor Customer shall seek to have any such action transferred from such venue(s) to any other venue on the grounds of forum non conveniens or otherwise.
19.9 Any claim or action Customer has against AssociationREADY must be brought within twelve (12) months of the claim arising; otherwise, such claim or action is permanently barred.
19.10 ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER CUSTOMER NOR ASSOCIATIONREADY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.
19.11 All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) one business day after being sent to the recipient by reputable regularly scheduled overnight courier service (charges prepaid), or (iii) three (3) business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:
If to AssociationREADY:
c/o David Christy
1134 Satellite Boulevard
Suwanee, Georgia 30024
With a copy to:
Jordan B. Forman, Esq.
Fox Rothschild LLP
999 Peachtree Street, NE
Atlanta, Georgia 30309
Either Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth. In addition to the methods by which notice may be provided set forth above in this Section 18.11, Customer agrees that AssociationREADY may provide Customer with notices, including those regarding changes to this Agreement, by electronic mail to the e-mail address Customer provided at the time of registration or as amended from time to time in Customer’s account profile on the Website, and that any notices provided by AssociationREADY to Customer by electronic mail shall be deemed given on the date on which AssociationREADY sends the e-mail.
19.12 BY ACCESSING OR USING THE WEBSITE (OTHER THAN TO READ THIS AGREEMENT FOR THE FIRST TIME), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTAND THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS AND PROVISIONS HEREIN. IF CUSTOMER DOES NOT AGREE WITH THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE WEBSITE.
19.13 Nothing in this Agreement is intended or will be construed to create or establish any agency, partnership or joint venture relationship between the parties. The parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder, and agree that the parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. AssociationREADY has no authority to act as agent for, or to incur any obligations on behalf of, or in the name of, Customer.
19.14 AssociationREADY may list Customer’s name as a customer of AssociationREADY in publically available documents.
19.15 This Agreement may be executed in separate counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission (to which a PDF or other image file format copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Exhibit “A”—Service Schedule
This Service Schedule is part of and incorporated into the ReadyCOLLECT Confidential Hosting Service Agreement (the “Agreement”) between Customer and AssociationREADY. Capitalized terms used but not defined herein are defined in the Agreement.
Use of Information
AssociationREADY does not sell or share your information to others in ways different from what is disclosed in the AssociationREADY Confidential Hosting Service Agreement (the “Agreement”). We may share aggregated demographic information with our partners. This is not linked to any personal information that can identify any individual person (“Personal Information”).
AssociationREADY websites may contain links to other websites. We are not responsible for the privacy practices of other websites. AssociationREADY will provide a way to correct, update or remove user's personal data. AssociationREADY will not share, sell or trade your Information gathered without your written approval.
We do not and will not contribute to or participate in cooperative databases which give other non-business partners or third parties access to such Personal Information. All information is stored on a secure server.
We may share Personal Information gathered for the purposes of establishing and maintaining your account(s) or any internal business purpose. AssociationREADY may use Personal Information if such information is required to comply with any valid legal process, such as a subpoena, search warrant, statute or court order.
AssociationREADY has procedures which it utilizes to safeguard and secure your information collected via our websites. Our servers are housed in a Tier 1 Data Center that employs multiple systems for power, security, environmental controls, fire suppression, and network connectivity. We understand the security concerns involved and we take great care in ensuring that our servers are updated with all the latest patches and security fixes as soon as they are available.
Data remains the property of Customer and will not be used for other purposes. Data will be returned to Customer at or shortly after the termination of the Agreement as set forth in the Agreement. Data entered into any of the AssociationREADY websites will not be sold, shared or otherwise made accessible to any third party without the express written consent of Customer
Acceptance of Terms