I. My VFW Network User Agreement
1. This Agreement is effective as of October 1, 2012. Use of any part of MyVFW.org, the My VFW Network Services, My VFW Aux, My VFW Auxiliary and relative components constitutes acceptance of the My VFW User Agreement & My VFW Service Agreement. My VFW service provider or “Contractor” agrees to use reasonable commercial efforts to provide to participating VFW entities, and participating VFW entities accept the My VFW User Agreement which may be modified or updated from time to time by participating VFW departments and Contractor. The My VFW Network Services to be provided by Contractor are subject to the terms set by this User Agreement and Service Agreements with participating Departments. In addition, Contractor shall provide Web-based services to VFW Departments and Posts which include but are not limited to web logs, email, toolbars, forums, storefronts and geographic advertising networks, database and ecommerce in an effort to provide communication protocols to organize, build membership, provide community communications, provide military family communications, improve the distribution of neutral political information, especially as it relates to veterans issues and create new revenue for respective participating VFW offices, departments & organizations.
2. Branding. All interface components within the Network Services, may be may prominently display the Contractor name, logo, trademarks and service marks within the designated area of the Web pages hosted on My VFW as contracting parties shall specify from time to time (collectively, the “Network Services Pages”). Notwithstanding the foregoing, Contractor may prominently display on all Network Services Pages participating VFW name, logo, trademarks, service marks and a phrase substantially similar to “powered by My VFW,” or such other Contractor related phrase(s) as Contractor may specify from time to time. Contracting parties agree that all branding, logos and copyrighted materials shall be used in accordance with law and the VFW By-Laws.
3. Domain Name. Contractor or participating VFW entities shall be responsible for: (i) registering a domain name for the Network with an ICANN approved domain name registrar, reseller, New.net reseller, or any successor organization; (ii) keeping such domain name registration, and the associated Web site, current and active; and (iii) paying all costs associated with such domain name registration. Existing domains shall be reciprocally linked or forwarded to the Sponsored Network Service pages.
4. Prohibited Network Content. Networks shall not contain any solicitations, activities and projects in violation of any applicable governmental law, ordinance or regulation nor bring or tend to bring opprobrium or embarrassment upon the Department, its members of the Veterans of Foreign Wars of the United States. The name, seals, badges and emblems of the Veterans of Foreign Wars shall not be ued in connection with any solicitations, activities or projects not in compliance with the foregoing. My VFW shall not contain any content which is defamatory, inaccurate, abusive, and obscene, infringing, threatening or which violates any federal, state or local law or content that is in violation of the Charter and By-Laws of the Veterans of Foreign Wars. The following types of content are inconsistent with Network policies: (i) pornography or links to any pornographic materials (iii) pirated software or other content that violates third party intellectual property rights; (iv) links to sites that violate third party ownership rights; (v) hacking, phreaking, or other methods that violate the rights of computer users; (vi) content that is collected or distributed illegally; (vii) any content which contracting parties determines to be inconsistent with their policies; (viii) any subject matter, visual or audio content, language or graphics specifically directed toward children under the age of thirteen (13) or made available to users known to be under the age of thirteen (13), unless contracting parties Site complies with the Children’s Online Privacy Protection Act; and (ix) publicly available information which personally identifies any children under the age of thirteen (13).
5. Access to Network. Users are permitted to have editorial access to respective network sites at the pleasure of VFW Department Headquarters. Contracting parties agree to provide full access to monitor all parts of the Network for the purpose of determining whether the Network complies with this Agreement and law.
6. Registration. Access to the network is granted to participating VFWs after completion of the online registration form and acceptance of this User Agreement. Participating VFWs shall be responsible for instituting a protocol for individual user registration within the network. This protocol shall be implemented by Contractor. In the absence of such protocol, Contractor shall provide one.
8. Service Agreement. Contractor’s Service Agreement which may be modified from time to time, and shall be accessible through the participating VFW department. Use of the Network indicates the VFW’s, member’s and user’s acceptance of the Service Agreement.
9. Restrictions. Except as expressly permitted by contracting parties, no party shall alter, delete or modify any attributions included within the Network Services. Deletions or modifications of sponsorship, advertising or network pages and components without the expressed consent of Contractor and the VFW Department may result in administrative action, loss of administrative privileges or restriction of services. Any and all solicitations, activities and projects shall not violate any applicable governmental law, ordinance or regulation nor bring or tend to bring opprobrium or embarrassment upon Contractor, the VFW Department, its members or the Veterans of Foreign Wars of the United States. The name, seals, badges and emblems of the Veterans of Foreign Wars shall not be used in connection with any solicitations, activities or projects not in compliance with the foregoing.
II. Ownership: The My VFW Network is equally owned by relative participating VFW(s) and Contractor.
1. Contractor and its licensors and third party content providers retain all rights and title to, and interest in, all of the information, content, data, designs, software, business methods, materials, and all copyrights, patent rights, trademark rights, service mark rights and other proprietary rights thereto provided by Contractor pursuant to this Agreement. Except as expressly provided herein, no right or license, with respect to any copyrights, patent rights, trademark rights, service mark rights or other proprietary rights, is granted under this Agreement. All rights not expressly granted hereunder by Contractor are expressly reserved to Contractor and its licensors and information and content providers. Under no circumstances shall: any part of the Network Services be physically transferred to contracting parties; or contracting parties be entitled to a license to the underlying software.
2. Costs. All costs including but not limited to serving, hosting, design, programming, technical support, software, editing, sales commissions, third-party services and fees associated with the My VFW network shall be the responsibility of Contractor unless otherwise expressly agreed by VFW and paid for through sponsorship, advertising and business models implemented through the My VFW Network.
3. Revenue. All net revenues through the Network pages shall be divided as follows within as identified in the My VFW Service Agreement. With exception to grand-fathered departments, participating VFW entities that expressly agree to the My VFW Service Agreement after October 1, 2012 are entitled to revenue paid on a quarterly basis when all of the following terms are met. (Grand-fathered departments that have contracted for services before October 1, 2012 are exempt from Section 3. Revenue Part B. below of the My VFW User Agreement): A.) All network service fees, commissions and costs are paid through revenues generated with the My VFW Network or paid by the participating VFWs, B.) A minimum of 10% of posts/or post members are actively utilizing the relative My VFW Network sites by posting new information at least once a month, and C.) New & Existing participating VFW domains are reciprocally linked or forwarded to the respective My VFW Network sites, and D.)Total amount due to participating VFWs exceeds $100.00 U.S.
4. Activation. To become activated, posts, districts & departments must expressly agree to the My VFW Service Agreement, identify a departmental blogmaster(s), allow post/user registration, begin using the services and forward existing VFW domains to relative My VFW Network pages. Use of services indicates activation and assent to the terms of the My VFW Service Agreement and the My VFW User Agreement.
5. Third Party service agreements are subject to change by contracting parties. Unless otherwise provided or agreed to, third party service providers may be paid through revenue generation through use of specific services such as email, ad serving, video hosting, plugins, programming and other services.
III. Licenses. License Grant of Content. Subject to all the terms and conditions of this Agreement, each party (“Licensor”) hereby grants Licensee (Licensee”) a non-exclusive, non-transferable, non-sub licensable license to use the Content as defined herein. “Content” refers solely to the content or other materials provided by Licensor to Licensee specifically for use under this Agreement and incorporated herein by this reference.
IV. Term; Termination.
1. Unless expressly provided otherwise in a written agreement between Contractor and participating VFWs, this Agreement shall commence on the date of acceptance by all parties and shall remain in full force from date of signature, renewed annually and in effect unless and until terminated as provided below. All modifications shall be made in writing to be in force.
2. This Agreement may be terminated by Contractor or contracting parties immediately, by written notice, if Contractor and/or VFW willfully and improperly uses or discloses Registration Data, or other information arising from Users’ use of the Network Services, in breach of the terms of this Agreement; or violates the terms and conditions of this Agreement.
3. Upon termination of this Agreement, Contractor will maintain User accounts for thirty (30) days. Users shall have access to their accounts and contracting parties shall have access to transfer the names and email addresses of its Users during this thirty (30) day period.
4. Survival. Sections II, V and, Exhibit A, auxiliary networks, Sponsorship agreements if any apply and, except as otherwise expressly provided herein, any right of action for breach of this Agreement prior termination, shall survive any termination of services.
5. Compliance with Applicable Law. Contracting parties represent and warrant that use of the Network Services shall comply with any and all applicable laws, rules, and regulations of any governmental body, agency, or other competent authority.
6. Indemnification. Contracting parties shall defend (or settle, if desired and authorized by Contractor) at Partner’s expense any claim or suit against Partner, its affiliates or their officers, directors, employees, contractors, agents or other representatives arising out of or relating to: (i) any assertion that the information, content, domain name or other materials or Network Services provided or made available by or under the authority of contracting parties, or the use thereof as specifically authorized by contracting parties, infringe any copyright, trademark or other intellectual property rights of any third party, or are a misappropriation of any third party’s trade secrets, or contain any libelous, defamatory, disparaging, pornographic or obscene materials; (ii) the use of the Network Services by contracting parties or its Users; (iii) any assertion that contracting parties has misused the Registration Data of Users who Contractor identifies as having stated a preference not to be contacted by contracting parties; or (iv) Partner’s use of User information not in accordance with the terms and conditions of this Agreement; or (v) any assertion that contracting parties has not complied with the Children’s Online Privacy Protection Act. Contractor shall indemnify and hold harmless contracting parties against and from damages, costs and attorneys’ fees, if any, incurred in defending and/or resolving such claim or suit, provided that: (i) Contractor is promptly notified in writing of such claim or suit; and (ii) contracting parties furnishes to Contractor, on request, information available to contracting parties for such defense.
V. Waiver of Damages; Limited Liability.
1. Users and VFW agrees that neither contractor nor contractor’s affiliates shall be liable or obligated (except as set forth herein) under this agreement or under principles of contract, negligence, strict liability or other legal or equitable theory, for any damages whatsoever, including indirect, incidental, or consequential damages or lost profits or cost of procurement of substitute goods or network services, arising out of or relating to contractor’s network services, even if contractor has been advised of the possibility of such damages.
2. User and VFW acknowledges and agrees that in no event shall contractor be liable for any damages, whether in contract or tort, including, but not limited to, direct, indirect, incidental, or consequential damages or lost profits or cost or procurement of substitute goods or network services, arising out of compliance or reasonable attempts to: (i) comply with united states copyright act; or (ii) satisfy requirements to qualify for the safe harbors designated in section 512 of the Digital Millennium Copyright Act.
3. In no event shall either party be liable for any and all matters relating to this agreement for any aggregate amount in excess of $500.00 U.S.
4. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities, therefore some of limitations may not apply to some users.
VI. Relationship of Parties.
1. Contracting parties hereto expressly understand and agree that each party is a partner in the performance of each and every part of this Agreement, and is relatively responsible for all its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, nor does either party have the power nor authority as agent, employee, or any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
2. Notices. Notices under this Agreement shall be sufficient only if: (i) personally delivered; (ii) delivered, charges prepaid, by a major commercial rapid delivery courier service; (iii) mailed, postage or charges prepaid, by certified or registered mail, return receipt requested; (iv) successfully mailed electronically; or (v) successfully faxed or emailed to a party at its fax or email address last provided to the other party. If not received sooner, notice by mail shall be deemed received ten (10) business days after deposit in the U.S. mails.
VI. Amendment. Any amendment to this Agreement shall be in writing and shall not be effective unless written assent of all the undersigned Parties is obtained.
1. Applicable Law; Unless expressly provided otherwise in a written agreement between contracting parties: (i) this Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina and the home state of the participating VFW department without reference to conflict of law principles; (ii) in any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees; and (iii) the sole jurisdictions and venues for any legal actions arising under this Agreement shall be in either the U.S. District Court North Carolina, or the Superior Court of North Carolina.
3. Entire Agreement. This Agreement, together with all exhibits, service and Sponsorship agreements, constitute the entire enterprise agreement between the Parties with respect to the subject matter hereof, and supersede all prior discussions, documents, agreements and prior course of dealing.
4. Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
5. Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary so that the provision and this Agreement shall otherwise remain in full force and effect and enforceable.
6. Force Majeure. VFW Department and/or Contractor shall not be liable, nor in breach of this Agreement, by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, fires, earthquakes, power shortages, acts of God, or any other cause which is beyond the reasonable control of the Parties.
7. Publicity. Contracting parties acknowledges and agrees that during the term of this Agreement, Contractor shall have the right to use Partner’s name, logo, URL, Web site screen captures, and description in Contractor’s marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, and print, radio and television advertisements, only upon the prior consent or approval of contracting parties. The Parties understand and agree, however, that nothing in this Agreement shall obligate Contractor to actually use Partner’s name, statements or testimonials in connection with Contractor’s marketing.