PLATFORM AGREEMENT
This Platform Agreement (this "Agreement") is entered into between the entity submitting this online and completing the online registration (the "Charity") and Propeller Enterprises, Inc. ("Propeller") effective as of the date of submission to Propeller and registration (the "Effective Date").
Recitals
A. Charity is a not-for profit corporation incorporated for exempt purposes within the meaning of section 501(c)(3), 501(c)(4), 501(c)(6) of the Internal Revenue Code of 1986, as amended or is a 527-Organization under Section 527 of the U.S. Internal Revenue Code (26 U.S.C. § 527);
B. Propeller provides an online, interactive social engagement platform (the "Platform") that enables individual users ("Participants") to participate in various online campaigns (collectively, the "Campaign") in support of Charity's mission, including making donations ("Donations") to Charity via a third-party Payment Processor ("Payment Processor"), signing up for email and social media interactions, and participating in other online engagement opportunities (each an "Action" or together "Actions").
C. Propeller desires to license to Charity the right to use the Platform to conduct Campaigns, subject to the terms and conditions hereof.
Agreement
1. Campaign. Propeller shall provide the Platform pursuant to the mutually agreed upon Campaign.
1.1. Donations. As part of the Campaign, Charity may use the Platform to solicit Donations through the Payment Processor.
2. Platform License.
2.1 License to Charity. Subject to Charity's compliance with the terms of this Agreement and Propeller's Official Rules, Terms of Use, and Privacy Policy, each as published at www.propeller.la and www.propelling.us from time to time (collectively, the "Policies"), and all of which are hereby incorporated herein and made a part of this Agreement as if fully set forth herein, Propeller hereby grants to Charity a non-exclusive, limited, non-assignable license to access and use the Platform for the purpose of running the Campaign.
2.2. Use Restrictions. Charity shall not use the Platform for any purpose beyond the scope of the access and use granted in this Agreement for the purpose of conducting the Campaign in the ordinary course of business. Without limiting the foregoing, Charity shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.3. Reservation of Rights; Feedback. Propeller reserves all rights not expressly granted to Charity in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Charity or any third party any intellectual property rights or other right, title, or interest in or to any of the Platform or any of Propeller's other intellectual property. If Charity or any of its employees or contractors or subcontractors sends or transmits any communications or materials to Propeller by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Propeller is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Charity hereby assigns to Propeller on Charity's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Propeller is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Propeller is not required to use any Feedback.
2.4. Suspension. Notwithstanding anything to the contrary in the Agreement, Propeller may suspend Charity's access to any portion or all of the Platform if: (i) Propeller reasonably determines that (A) there is a threat or attack on any of the Platform; (B) Charity's use of the Platform disrupts or poses a security risk to the Platform or to any other customer or vendor of Propeller; (C) Charity is using the Platform for fraudulent or illegal activities or in violation of Propeller's Terms of Use then in effect (including without limitation in violation of any restrictions on acceptable content); (D) Propeller's provision of the Platform to Charity is prohibited by applicable law; (ii) any vendor of Propeller has suspended or terminated Propeller's access to or use of any third-party services or products required to enable Charity to access the Platform (any such suspension described in subclause (i) or (ii), a "Service Suspension"). Propeller shall use commercially reasonable efforts to provide written notice of any Service Suspension to Charity and to provide updates regarding resumption of access to the Platform following any Service Suspension. Propeller shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Propeller will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Charity may incur as a result of a Service Suspension.
2.5 Modification. Propeller reserves the right, in its sole discretion, to make any changes to the Platform, including without limitation removing or restricting access to certain features thereof.
3. Licenses to Propeller.
3.1 Grant of License. Charity grants Propeller a world-wide, royalty-free, revocable, limited, non-exclusive license to use the official logo of Charity as well as any other mutually agreed upon trademarks of Charity (collectively, the "Marks") solely for the purpose of publishing the Campaign via the Platform. Propeller shall not use the Marks to suggest that Charity endorses any product or service other than the Campaign. "Territory" shall mean all countries in the world in which the Campaign may be legally conducted, as determined by Charity and communicated to Propeller in writing.
3.2 Form of Reproduction and Display. Propeller shall cause all reproductions of any registered Mark to be accompanied by the registered trademark notice symbol ® wherever appropriate.
3.3 Ownership of Marks. Charity is and shall remain the sole and exclusive owner of the Marks. The appearance together of each party's respective trademarks shall not create a new trademark. Propeller shall cooperate with Charity for the purpose of preserving Charity's rights in the Marks. Every use of any Mark by Propeller shall inure to the benefit of Charity, and Propeller shall not acquire any rights in such Marks by virtue of Propeller's use of the Marks.
3.4 Approvals. Prior to any public use, Propeller shall provide to Charity a sample of its intended use of the Mark in the form that it intends to use in connection with the Campaign (the "Representative Sample"). Once Charity approves the Representative Sample, Propeller may use the Marks without additional approvals, provided that Propeller does not deviate from the Representative Sample in any material manner without Charity's prior written approval.
4. Representations and Warranties.
4.1. Charity Representations. Charity (a) has the full right, power and authority to enter into and to perform its obligations under this Agreement; (b) owns and/or has been granted full rights in Charity's Intellectual Property, none of which does or will infringe on the rights of any third parties; and (c) shall maintain its legal status of a 501(c)(3) or 501(c)(4) throughout the Campaign and the term of this Agreement, whichever ends later. "Group Intellectual Property" means all Intellectual Property supplied by or on behalf of Charity in connection with the Campaign, including without limitation the Marks. "Intellectual Property" means all copyrights, patent rights, trade names, trademarks, service marks, trade dress, trade secrets, rights of publicity, contract and licensing rights, goodwill, and all other intellectual property rights, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States, or any other state, country or jurisdiction throughout the world.
4.2. Propeller Representations. Propeller (a) has the full right, power and authority to enter into and to perform its obligations under this Agreement; (b) owns and/or has been granted rights in intellectual property that is part of the Platform sufficient to grant the license to the Platform granted hereunder.
5. Payments
5.1. Donations. Charity shall have full access to the Donations and may instruct the Payment Processor to remit the Donations to Charity at any time. Charity agrees to remit twenty (20%) percent of the Donations received by the Payment Processor to Propeller in consideration for the license granted to Charity. This fee includes all credit card and Payment Processor fees.
5.2. Expense Reimbursement. Charity shall reimburse Propeller for all mutually agreed upon reasonable and necessary expenses incurred in connection with the development, provision, paid advertising, and fulfillment of rewards and prizes as part of the Campaign.
5.3. Record Retention and Inspection. Propeller shall maintain and preserve for at least three (3) years after the end of the Campaign, complete and accurate records relating to the Campaign. Propeller will collect records related to the Donations from the Payment Processor and preserve such records in accordance with other Campaign records. Charity may inspect and/or audit such records upon at least ten (10) business days prior written notice to Propeller, provided that such inspection shall be conducted during Propeller's normal business hours in a manner that does not unduly interfere with Propeller's normal business activities, and provided further that Charity may not conduct any such inspection more frequently than once per calendar year and only during the record retention period. In addition, each party shall reasonably assist the other party in complying with any reporting requirements, including final reports, required by any state, at the other party's cost and expense.
5.4. Community-Supported Model. Charity may maintain a presence on the Propeller platform for no additional fee as part of the Community-supported Model. In such instances, Propeller may receive contributions directly from Propeller members that it will use to promote Charity's Campaign.
6. Covenants.
6.1 Compliance with Laws and Policies. Propeller and Charity shall comply with all laws and regulations applicable to the Campaign and Services or relating to each party's performance hereunder. Propeller and Charity shall comply with their respective privacy and similar policies in effect from time to time. Charity shall comply with Propeller's Policies in effect from time to time.
6.2 No Strategic Advice. Charity acknowledges that it is not engaging Propeller to provide any counsel, advice, strategy, or guidance on its campaigns or with any services related to solicitation of donations or professional fundraising. Charity further acknowledges that Propeller does not process, collect, obtain, or have custody over, any Donations at any time.
6.3 Professional Solicitation. Charity agrees that it does not deem Propeller as a professional fundraiser, professional solicitor, or professional fundraising counsel and shall not name Propeller as such in any registration, public statement, or otherwise, unless directed to do so by regulatory authorities over Charity's objection.
6.4 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, Charity will not disrupt, impair, or interfere with the business of Propeller by interfering with or "raiding" Propeller's employees or independent contractors, including without limitation by directly or indirectly soliciting Propeller's employees or independent contractors to work, directly or indirectly, for Charity or for any competitors of Propeller.
7. Indemnification and Insurance.
7.1 Indemnification of Charity. Propeller shall indemnify and hold Charity, its officers, directors, and employees (together, the "Charity Indemnitees") harmless from and against any loss, liability, damage, cost, or expense, including reasonable attorneys' expenses, arising out of any third-party claims or suits against the Charity Indemnitees by reason of (a) Propeller's breach of any of its obligations under this Agreement; (b) Propeller conducting sweepstakes and rewards programs (c) the acts or omissions of Propeller its employees, or its agents, subcontractors, officers, directors or invitees.
7.2 Indemnification of Propeller. Charity shall defend, indemnify and hold harmless Propeller and its respective officers, directors, and employees (together, the "Propeller Indemnitees") from any loss, liability, damage, cost, or expense, including reasonable attorneys' expenses, arising out of any third-party claims or suits against the Propeller Indemnitees by reason of: (a) Propeller's use of the Marks or any other Group Intellectual Property in accordance with this Agreement; (b) Charity's breach of any of its representations, warranties and/or obligations under this Agreement; or (c) the acts or omissions of Charity its employees, or its agents, subcontractors, officers, directors or invitees.
7.3 Indemnification Process. A party seeking indemnification ("Indemnified Party") will provide the party from which indemnification is sought ("Indemnifying Party") with prompt written notice of the relevant claim (provided that the failure to provide prompt notice will only relieve the Indemnifying Party of its obligations to the extent it is materially prejudiced by such failure) and permit the Indemnifying Party to control the defense, settlement or compromise of such claim. The indemnified Party may employ counsel at its own expense to assist it with respect to such claim; provided, however, that if such counsel is necessary because the Indemnifying Party does not assume control, the Indemnifying Party will be responsible for the expense of such counsel. Neither party shall have authority to settle any claim on behalf of the other except if such settlement provides for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such claim and does not create any financial or other obligation on the part of the Indemnified Party.
7.4 Insurance. During the term of this Agreement, Propeller shall, at its own expense, maintain and carry insurance policies in full force and effect with financially sound and reputable insurers, that includes commercial general liability and cyber liability policies each with limits no less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
8. Termination.
8.1 Term. This Agreement shall expire and have no further effect on the earlier of (a) one year following completion of all outstanding mutually agreed upon Campaigns and the completion of any of Charity's Actions via the Platform, or (b) at any time upon written notice that no Campaign is outstanding hereunder, or (c) upon termination in accordance with Section 8.2.
8.2 For Cause. Either party may terminate this Agreement upon thirty (30) days written notice if the other party materially breaches any provision of this Agreement and such breach is not cured within thirty (30) days after written notice thereof to the breaching party specifying the breach. A party's failure to object to the other party's breach of any provision of this Agreement shall be limited to that particular instance and shall not prejudice the party's right to terminate this Agreement for any subsequent breach.
8.3 Bankruptcy. This Agreement shall terminate automatically if a party makes an assignment of its assets for the benefit of creditors, applies for the appointment of a receiver or trustee of its assets, or files (or has filed against it) any petition under the bankruptcy or insolvency laws of any jurisdiction, or is adjudged to be bankrupt or insolvent; provided, however, that in the event of any of the foregoing, Propeller acknowledges and agrees that: (a) the date of such event shall constitute the end of the Campaign for the purposes of this Agreement; and (b) all donations collected by Propeller in association with the Campaign as of the date of such event shall be the property of Charity and not Propeller.
8.4 Effect of Termination. Upon termination or expiration of this Agreement, (a) Propeller shall cease use of the Marks as soon as reasonably practicable, and (b) Charity shall immediately cease use of the Platform and the Services.
9. Disclaimer; Limitation of Liability.
9.1 EXCEPT FOR THE SPECIFIC REPRESENTATIONS AND WARRANTIES PROVIDED HEREIN OR AS EXPRESSLY SET FORTH IN THIS SECTION, EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND PROPELLER DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR RELIABLE.
9.2 EXCEPT WITH RESPECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
10. Confidentiality.
A party's "Confidential Information" is defined as any confidential or proprietary information of a party which is disclosed to the other party in a writing marked confidential or, if disclosed orally, is identified as confidential at the time of disclosure and is subsequently reduced to a writing marked confidential and delivered to the other party within ten (10) days of disclosure, or any information the receiving party knew or should have known, given the nature of the information or the circumstances surrounding its disclosure, was considered confidential or proprietary by the disclosing party. Each party shall hold the other party's Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other Party's Confidential Information for any purpose other than as required to perform under this Agreement. Such restrictions shall not apply to information which (a) is already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) is received by recipient from a third party without a restriction on disclosure or use, or (d) is independently developed by recipient without reference to the Confidential Information. The restriction on disclosure shall not apply to Confidential Information which is required to be disclosed by a court or government agency.
11. General Provisions.
11.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California, exclusive of its rules respecting choice of law. Any action, suit, or other proceeding brought by either party hereunder against the other shall be brought and maintained in the courts of the State of California.
11.2 This Agreement may not be assigned by either party without prior written approval from the other party. Any unauthorized assignment shall be null and void.
11.3 The remedies provided in this Agreement shall be cumulative, and the assertion by either party of any right or remedy shall not preclude the assertion by such party of any other rights or the seeking of any other remedies.
11.4 This Agreement represents the entire agreement between Propeller and Charity with respect to the subject matter hereof, and supersedes any prior or contemporaneous arrangement, understanding, negotiations or agreement with respect thereto.
11.5 The failure of either party to enforce any of the provisions of this Agreement or the waiver thereof in any instance shall not be construed as a general waiver or relinquishment on its part of such provision or any other provision, but the same shall nevertheless be and remain in full force and effect.
11.6 The invalidity or unenforceability of any provision of this Agreement shall in no manner affect the validity or enforceability of any other provision hereof, unless the removal of that provision results in a material change to this Agreement. In such a case, the parties will negotiate in good faith to agree upon a replacement provision. If the parties are unable to agree upon such a replacement provision within a reasonable period of time, either party may terminate this Agreement on written notice to the other party.
11.7 In addition to those responsibilities that accrue during the term of the Agreement, Sections
2.3 (Reservation of Rights; Feedback), 3.3 (Ownership of Marks), 6.4 (Non-Solicitation), 7 (Indemnification and Insurance), 9 (Disclaimer; Limitation of Liability), 10 (Confidentiality), and 11 (Miscellaneous) shall survive any termination or expiration of this Agreement.
11.8 The Section and paragraph headings used herein are intended to be descriptive only, and shall have no effect on the meaning or interpretation of the provisions of this Agreement.
Updated 3/15/23.
