SUBSCRIBER AGREEMENT
This Subscriber Agreement ("AGREEMENT") is made as of the 19th day of
April, 2001 ("EFFECTIVE DATE") by and between Whirlwind Marketing, Inc. a
Delaware corporation ("WHIRLWIND"), and America's Charities, a non-profit
("SUBSCRIBER").
WITNESSETH
WHEREAS, Whirlwind develops and markets fundraising products and
services for non-profit organizations, including charitable organizations,
educational institutions, and civic and trade associations;
WHEREAS, Whirlwind has developed an on-line fundraising toolset,
V-Giving ("V-GIVING"), that provides Whirlwind's customers with the ability to
accept donations over the Internet, as well as establish and further develop
relationships with their donors;
WHEREAS, Subscriber is an association of certain non-profit
organizations and desires to enter into a relationship with Whirlwind whereby,
for a certain fee, "hyperlinks" to the V-Giving toolset will be added by
Subscriber to the splash pages of the Member Charities (as defined below) on
Subscriber's website, and Whirlwind will provide certain donation acceptance and
processing services in connection therewith.
NOW, THERFORE, in consideration of the conditions and covenants set
forth hereinafter, Whirlwind and Subscriber, intending to be legally bound,
agree as follows:
1. HYPERLINKS AND SERVICES. In consideration for the payments to be made
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to Whirlwind hereunder, Subscriber will receive (a) the ability to "hyperlink"
the splash page for each Member Charity on Subscriber's website to the V-Giving
toolset (the particular hyperlink for each splash page is hereafter referred to
as a "Hyperlink"), and (b) access to the donation acceptance and processing
services offered by Whirlwind through the V-Giving toolset from time to time
("SERVICES"). Whirlwind shall provide assistance to Subscriber for establishing
the Hyperlinks, however, Whirlwind assumes no responsibility for the failure to
establish the Hyperlinks. Donations to Member Charities collected through
V-Giving, less applicable merchant transaction fees, shall be deposited in an
account designated by Subscriber to Whirlwind in writing within five (5) days
after a given transaction. Subscriber shall be responsible for forwarding the
appropriate amount of donations to each Member Charity. Each Member Charity
shall have access to their V-Giving donor database. Each Member Charity shall
have access to update and maintain content on their portion of the V-Giving
toolset. Whirlwind does not assume responsibility for content or content errors
entered or administered by the Member Charities.
2. TERM.
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(a) The term of the Agreement shall be for three (3) years commencing
on the date hereof, subject to extension upon the mutual agreement of the
parties.
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(b) Either party may terminate this Agreement prior to the expiration
of the term upon a material breach by the other party if such breach is not
cured within thirty (30) days of receipt by the breaching party of written
notice specifying such breach in reasonable detail.
(c) Notwithstanding anything in this Agreement to the contrary,
Whirlwind may immediately terminate this Agreement prior to the end of the term,
at its option, by written notice to Subscriber, upon the occurrence of any of
the following events:
(i) Failure by Subscriber to pay any fees owing to Whirlwind
hereunder within ten (10) days of the date due;
(ii) the dissolution, termination of existence or cessation to
conduct business of Subscriber;
(iii) the bankruptcy or insolvency of Subscriber, or the
commission by Subscriber of any act evidencing the same, or the appointment of a
receiver, trustee or liquidator for Subscriber or for any of its properties or
assets; or
(iv) the making of an assignment by Subscriber for the benefit of
its creditors, or the commencement by, for or against Subscriber of a case, or
the filing of a petition under the United States Bankruptcy Code (or any
successor statute or applicable law), and the failure to have such appointment,
assignment, case or petition dismissed within sixty (60) days after the
commencement or the entry thereof.
(d) Upon expiration or termination of this Agreement for any reason
whatsoever, Subscriber shall, and shall cause each of the Member Charities to,
immediately cease all use of the Hyperlinks and return any proprietary
information in connection therewith to Whirlwind.
3. PAYMENT TERMS.
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(a) Subscriber shall pay fees to Whirlwind in consideration for the
Services as follows:
(i) On the Effective Date, Subscriber shall pay to Whirlwind a
fee equal to Five Thousand Dollars ($5,000.00).
(ii) Within thirty (30) days after the first anniversary of the
Effective Date, Subscriber shall pay to Whirlwind a fee determined as follows:
(A) If the aggregate amount of donations pledged to Member
Charities through V-Giving from the Effective Date through the calendar day
before the first anniversary of the Effective Date (the "First Year Period") is
less than Ten Thousand Dollars ($10,000.00), then Subscriber shall pay a fee
equal to Five Thousand Dollars ($5,000.00).
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(B) If the aggregate amount of donations pledged to Member
Charities through V-Giving during the First Year Period equals or exceeds Ten
Thousand Dollars ($10,000.00), but is less than Fifteen Thousand Dollars
($15,000.00), then Subscriber shall pay a fee equal to Seven Thousand Dollars
($7,000.00).
(C) If the aggregate amount of donations pledged to Member
Charities through V-Giving during the First Year Period equals or exceeds
Fifteen Thousand Dollars ($15,000.00), but is less than Twenty Thousand Dollars
($20,000.00), then Subscriber shall pay a fee equal to Ten Thousand Dollars
($10,000.00).
(D) If the aggregate amount of donations pledged to Member
Charities through V-Giving during the First Year Period equals or exceeds Twenty
Thousand Dollars ($20,000.00), then Subscriber shall pay a fee equal to Fifteen
Thousand Dollars ($15,000.00).
(iii) Within thirty (30) days after the second anniversary of the
Effective Date, Subscriber shall pay to Whirlwind a fee determined as follows:
(A) If the aggregate amount of donations pledged to Member
Charities through V-Giving from the first anniversary of the Effective Date
through the calendar day prior to the second anniversary of the Effective Date
(the "Second Year Period") is less than Fifteen Thousand Dollars ($15,000.00),
then the Subscriber shall pay to Whirlwind a fee equal to Five Thousand Dollars
($5,000.00).
(B) If the aggregate amount of donations pledged to Member
Charities through V-Giving during the Second Year Period equals or exceeds
Fifteen Thousand Dollars ($15,000.00), but is less than Twenty Thousand Dollars
($20,000.00), then Subscriber shall pay to Whirlwind a fee equal to Ten Thousand
Dollars ($10,000.00).
(C) If the aggregate amount of donations pledged to Member
Charities through V-Giving during the Second Year Period equals or exceeds
Twenty Thousand Dollars ($20,000.00), then Subscriber shall pay a fee equal to
Fifteen Thousand Dollars ($15,000.00).
(b) Membership Base. The payment terms contained in Section 3(a) above
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are based on Subscriber's list of member organizations existing as of the
Effective Date (the "ORIGINAL MEMBERS"), which is attached hereto as Exhibit A.
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With respect to any new member added by Subscriber after the Effective Date
(each, an "ADDITIONAL MEMBER," and with the Original Members, the "MEMBER
CHARITIES"), Subscriber shall pay a fee (the "ADDITIONAL MEMBER FEE") to
Whirlwind of One Hundred Eighty Dollars ($180.00) per year for each Additional
Member (which is in addition to the fees payable pursuant to Section 3(a) above)
if a Hyperlink is installed on such Additional Member's splash page on
Subscriber's website. Additional Member Fees shall be paid by Subscriber to
Whirlwind (i) within thirty (30) days after an Additional Member has a Hyperlink
initially established on Subscriber's website with respect to the first year's
fees, and (ii) within thirty (30) days of each anniversary of the Effective Date
thereafter. Additional Members shall not contract directly with Whirlwind but
their rights
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to use of the V-Giving toolset and the Services provided in connection therewith
shall be governed by the terms and conditions of this Agreement.
(c) All fees paid by Subscriber to Whirlwind hereunder shall be
nonrefundable notwithstanding any early termination of this Agreement pursuant
to Section 2 or any notification by a Member Charity to Subscriber that it
wishes to discontinue use of the V-Giving toolset.
4. NONDISCLOSURE. Except as otherwise provided herein, neither party
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shall disclose the existence and nature of this Agreement or the terms and
conditions contained herein without the other party's prior written consent;
provided, however, that Whirlwind may disclose that it has furnished or
contracted to furnish to Subscriber and the Member Charities the Hyperlinks and
the Services so long as Whirlwind does not disclose in detail the terms of this
Agreement.
5. COVENANT NOT TO COMPETE.
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(a) As an inducement for Whirlwind to enter into this Agreement,
Subscriber agrees that during the term of this Agreement and for a period of
three (3) years thereafter, Subscriber will not, and Subscriber shall ensure
that any entity it controls shall not, without Whirlwind's prior written
consent, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be associated with, or in any manner connected with, lend its credit to, or
render services or advice to, any business whose products or services compete,
directly or indirectly, in whole or in part with the products or services of
Whirlwind related to V-Giving anywhere in the world. Subscriber agrees that this
covenant is reasonable with respect to its duration, geographic area and scope.
(b) In the event of a breach by Seller of any covenant set forth in
Section 5(a) of this Agreement, the term of such covenant will be extended by
the period of the duration of such breach.
6. REMEDIES. If Subscriber breaches the covenants set forth in this
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Agreement, Whirlwind will be entitled to the following remedies: (i) damages;
and (ii) in addition to its right to damages and any other rights it may have,
Whirlwind shall be entitled to obtain injunctive or other equitable relief to
restrain any breach or threatened breach or otherwise to specifically enforce
the provisions of this Agreement, it being agreed that money damages alone would
be inadequate to compensate Whirlwind and would be an inadequate remedy for such
breach.
7. USE OF NAMES; MARKETING AND PROMOTIONAL ACTIVITIES BY SUBSCRIBER.
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(a) As an additional inducement to enter into this Agreement,
Whirlwind shall have the right to use on its corporate website, its other
advertising and promotional materials and/or in the V-Giving toolset, in its
reasonable discretion, the name of Subscriber and, except for the Member
Charities set forth on Exhibit B hereto, the names of the Member Charities.
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(b) Subscriber represents and warrants that, except for the Member
Charities set forth on Exhibit B hereto, it has procured from each Member
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Charity the proper authorization
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to grant the right to Subscriber to use the name of such Member Charity in
accordance with this Section 7.
(c) Subscriber hereby agrees to indemnify, protect, and hold harmless
Whirlwind from and against any and all liability, loss, or damage and to
reimburse Whirlwind for any expenses, including legal fees and disbursements, to
which Whirlwind may be put because of claims or litigation on account of
infringement or alleged infringement of any trademarks or other intellectual
property rights of the Member Charities because of Whirlwind's use of the name
of a Member Charity in accordance with the terms of this Section 7.
(d) Subscriber further agrees to provide Whirlwind with the marketing
and promotional services described in Exhibit C hereto during the term.
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8. MARKETING TO INDIVIDUAL CHAPTERS. The Individual Charities shall
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receive a discount in the amount of Sixty Dollars ($60.00) off of the regular
annual subscription price for an individual subscriber of to V-Giving.
9. NO WARRANTY. WHIRLWIND PROVIDES THE V-GIVING TOOLSET AND SERVICES "AS
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IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. WHIRLWIND SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, NON-INFRINGEMENT, AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. LIMIT OF LIABILITY. THE MAXIMUM LIABILITY OF WHIRLWIND UNDER THIS
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AGREEMENT SHALL BE THE AMOUNT OF FEES PAID BY SUBSCRIBER UNDER THIS AGREEMENT
FOR THE TWELVE (12) MONTH PERIOD PRECEDING COMMENCEMENT OF THE EVENT GIVING RISE
TO LIABILITY. IN NO EVENT SHALL WHIRLWIND BE LIABLE FOR LOST PROFITS OR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES
(HOWEVER ARISING, INCLUDING THROUGH NEGLIGENCE) ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR WITH SERVICES RENDERED.
11. INTELLECTUAL PROPERTY. All design, text, graphics, interfaces, and
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the selection and arrangements thereof with respect to the V-Giving toolset are
(c) [year of first posting], Whirlwind Marketing, Inc. Use of the artwork images
or any other materials constituting part of the V-Giving toolset, except as
contemplated by this Agreement, including, without limitation, reproduction,
modification, distribution, or republication, without prior written permission
of Whirlwind is strictly prohibited.
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12. MISCELLANEOUS.
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(a) This Agreement supersedes all prior agreements and understandings
between the parties relating to the subject matter hereof, and is intended by
the parties as the complete and exclusive statement of the terms of this
Agreement.
(b) This Agreement is binding upon, and inures to the benefit of, the
successors and permitted assigns of the parties. Neither party hereto may assign
or otherwise transfer, in whole or in part, this Agreement without the other's
express prior written consent, which consent shall not be unreasonably withheld
or delayed.
(c) No modification, addition to or waiver of any right, obligation or
default under this Agreement shall be effective unless in writing and signed by
the parties hereto.
(d) One or more waivers of any right, obligation or default shall not
be construed as a waiver of any subsequent right, obligation or default.
(e) Should any of the provisions of this Agreement, or portions
thereof, be found to be invalid by any court of competent jurisdiction, the
remainder of the Agreement shall nonetheless remain in full force and effect.
(f) This Agreement shall be deemed a contract made under the laws of
the State of Delaware, and for all purposes shall be governed by and construed
in accordance with the laws of said jurisdiction without regard to its conflicts
of laws principles. The parties each submit itself to the jurisdiction of the
courts of the State of Delaware, United States, and to the jurisdiction of any
federal court of the United States located in such jurisdiction, for the purpose
of any suit, action, or other proceeding arising out of this Agreement.
(g) All notices provided for in this Agreement shall be in writing,
addressed to the appropriate party at its principal office or to any other
address specified by a notice, and shall either be delivered personally or by
means providing evidence of delivery, such as registered or certified mail with
return receipt, facsimile transmission or telegram.
(h) If circumstances beyond the control of the parties shall
temporarily make it impossible for either or both of them to perform their
obligations under this Agreement, then the principles of force majeure will
apply and the rights and obligations of the parties will be temporarily
suspended during the force majeure period to the extent that such performance is
reasonably affected thereby. Circumstances beyond the control of the parties
shall include but not be limited to acts of God, strikes, lockouts, riots, acts
of war, nuclear events, general electrical or telecommunications failures,
epidemics, governmental regulations, fire, earthquakes or other disasters, but
shall not include payment of any amounts due under this Agreement.
(i) This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which together shall constitute one and
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed and delivered by their duly authorized officers as of the date first
written above.
WHIRLWIND MARKETING, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President/COO
AMERICA'S CHARITIES
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Director, Marketing & Communications
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