myDirectVote Terms of Use

Please read this agreement regarding the myDirectVote Terms of Use (this “Agreement”) carefully. Set forth below are the Terms of Use under which Survey & Ballot Systems, Inc. (“SBS”) makes the myDirectVote® service (the “Service”) available to the person or entity using the Service (the “User”).

By using the Service (including responding to emails, election communications, and voting) each User hereby agrees to the conditions outlined below. If you do not agree with the terms outlined, do not access or otherwise use the Service. SBS may make changes to the Service at any time, and may make changes to the content and terms of this Agreement at any time without the consent of the User.

If any modification is unacceptable to you, you shall cease using the Service. If you do not cease using the Service, you will be conclusively deemed to have accepted the change(s).

The User hereby warrants that if it is a corporation, nonprofit organization, cooperative or other legal entity, the User is validly formed and existing under the laws of its jurisdiction and has accordingly authorized its agent or agents to enter into this Agreement and, if an individual, the User is of the age or majority in his or her place of residence.

The User will separately agree to any additional costs and fees that may occur during the course of the User’s myDirectVote election(s) beyond those described in the Service Agreement.

This document was last modified on October 13, 2022.

Payments
Payment structure will be outlined in the invoice provided by the User’s designated SBS Account Manager. SBS reserves the right to revise prices to reflect increases in labor or material costs occurring between the dates of the agreed upon estimate and acceptance of order.

User shall pay all fees for additional support or services upon completion of their myDirectVote project or election, including usage fees incurred through exceeded usage thresholds outlined in the myDirectVote contract.

Registration
If a User has registered for a myDirectVote account, the User hereby affirms that the information provided by the User is complete and accurate. The User shall ensure that such information remains up-to-date. Upon payment for the myDirectVote project, each specified User will receive a username and passcode provided by SBS. The User acknowledges and agrees that the User, not SBS, is responsible for User’s account and all activities occurring in connection with the use of that account, whether or not the User authorizes such activities.

Content
User acknowledges and agrees that all candidate information, voting content, survey responses, data files or other materials communicated or transmitted using the Service, whether publicly posted or privately transmitted, are the sole responsibility of the User from whom such content originated.

User acknowledges that SBS does not control the content originating from User and cannot be held accountable for responses, selections or outcomes from a User’s election. SBS does not guarantee the accuracy, integrity or quality of any election coming from the Service.

SBS may review all content and may block, modify, terminate access to or remove any such content that does not comply with any requirements of this document or other agreements between the User and SBS.

SBS reserves the right to purge content from its database from time to time without notice. User acknowledges sole responsibility for member data files. SBS shall not be liable for any purging, deletion or failure to retain content or election information inputted to the Service by the User.

SBS may disable a User account and access to the Service and/or may recover from a User any losses, damages, costs or expenses incurred by SBS resulting from or arising out of User’s non-compliance with any provisions of this document.

User acknowledges that SBS has not undertaken or assumed any duty of advising, proofing or supervising the content of any data. Any changes, modifications or other revisions to the data shall be made by the User’s sole discretion.

User Content
The User:

• Shall comply with SBS Anti-Spam Policy and all other policies as published on the myDirectVote website from time to time, all applicable U.S. Federal, State, local and international laws, including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and all other laws related to unsolicited commercial email messages, text messages, defamation, privacy, obscenity, intellectual property or child protective email address registries.
• Shall not upload, post, email, distribute, communicate, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or that infringes any patent, trademark, trade secret, copyright or other intellectual property right of any party.
• Shall not use the site to send elections, polls or other materials to minors.
• Shall not impersonate any other person or entity, including SBS, forum leaders, guides or hosts, or falsely state or otherwise misrepresent User’s affiliation with any other person or entity.
• Shall not interfere with or disrupt the Service or servers or networks related to the Service.
• Shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Service in any manner.
• Shall not upload, post, email, distribute, communicate, transmit or otherwise make available any viruses or similar malicious software that may damage the operation of the Service or voter’s computers.
• Shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the election.
• Shall not use the Service if affiliated with a competitor of SBS. A competitor of SBS is determined solely at the discretion of SBS. A User may not access the Service for purposes of monitoring its availability, performance or functionality, or for any benchmarking or competitive reasons.
• Shall not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the myDirectVote website or other services.
• Shall not furnish to SBS cellular phone numbers in violation of any federal, state, or local law to utilize in providing the Service without proper consent from the holder, owner, or user of such cellular phone numbers.

User further acknowledges and agrees that SBS may cooperate with any governmental authority in connection with any investigation into User’s election and may disclose any content and any other information pertaining to the User in connection with any such investigation without notice to User.

Provisions of the myDirectVote Site & Service
SBS Responsibilities: SBS' key role is to bring validity, independent oversight, security, and accuracy to the balloting process. Ultimately, SBS will maintain an auditable trail that supports the outcome of a myDirectVote election. SBS offers the Service and assistance in working with the User. The Service includes the following:

• Two total hours of development support to the User's design of myDirectVote elections or voter support during the voting period.
• Support of an online election or voting of 5,000 members or fewer:
• Authenticate voters to ensure voter is eligible.
• Prohibit voters from submitting an invalid, duplicate or out-of-parameter ballot, but provide voter with the opportunity to correct voting error(s).
• Provide support link which enables voters to receive their passcodes.
• Provide comments box and satisfaction rating for members to record their Web voting experience after ballot submission.
• Allow clear and easy navigation to and from each step via prompts.
• Production of final election report.

Ownership of Business Process and Data
During the term of this Agreement, User may have access to the intellectual property and internal business processes of SBS including, without limitation, SBS’ methods of providing the Service such as Internet and paper-based data gathering and reporting services for elections (“Business Process”). Ownership of all right, title, and interest in and to the Business Process, including translations, compilations, partial copies, modifications and updated works and ownership of all patents, trade secrets, copyrights and other intellectual property rights pertaining thereto, and the programmed scripts used in scanning, editing and reporting, shall be and shall remain confidential and the sole property of SBS.

• New Works. The parties hereto recognize that in rendering the Service hereunder, the documents and reports delivered by SBS to the User are part of a dynamic and creative process and may result in the development of original works including, but not limited to, software, analysis techniques and methodologies, reports and report formats (“New Works”). The User agrees that all such New Works are proprietary to SBS and SBS shall retain any and all ownership rights in such New Works.
• Ownership of Data. Any and all information submitted to SBS by the User for purposes of providing the Services herein and all hard copy forms and electronic data files generated for the User under this Agreement (the “Data”) shall remain the sole property of the User during and after the term of this Agreement. SBS shall use the Data submitted by User for the sole purpose of rendering the Service to the User hereunder.
• Content of Data. SBS shall not be responsible under any circumstances for the content of the Data and the User acknowledges that SBS has not undertaken or assumed any duty of advising, proofing or supervising the content of the Data. Any changes, modifications or other revisions to the Data shall be made by the User in User’s sole discretion. Where the Data contains or relies on contact information and cellular phone numbers for voting via SBS text messaging or receives such cellular phone numbers from SBS, User represents that User shall neither furnish to SBS nor utilize cellular phone numbers in violation of any federal, state, or local law, and User shall defend, indemnify, and hold harmless SBS and its shareholders, members, employees, directors, and officers from and against third party claims arising from SBS's use of such phone numbers in providing the Services or delivery of such numbers to User except to the extent such claims are the result of the willful misfeasance or intentional misconduct of SBS.
  

Warranty: Limitation of Liabilities
SBS hereby represents and warrants that SBS is not subject to any restrictions whatsoever which would prevent it from entering into or carrying out the provisions of this Agreement and possesses the proper skill, training, experience, and background so as to be able to perform under this Agreement in a competent and professional manner. In the event that SBS incorrectly inserts any data in User’s data files or other materials, User’s exclusive remedy shall be to require SBS to correct the data files and/or replace such other materials for the User. IN NO EVENT SHALL SBS BE LIABLE FOR ANY LOSS OF PROFITS, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF SBS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS OR DEMANDS. IN NO EVENT SHALL SBS’ LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID TO SBS BY THE USER. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

The User further acknowledges and agrees that the User, not SBS, is responsible for evaluating the accuracy, reliability, completeness, and usefulness of any information obtained through the use of the Service.

The User must evaluate and bear all risks associated with the use of the Service, including any reliance on the accuracy, completeness or usefulness of the Service.

Indemnity By User
User shall indemnify, defend and hold harmless SBS, their respective representatives, and agents against all claims, demands, damages, liabilities, and costs (including attorney’s fees) arising out of or in connection with:

• User’s use of the Service, including User’s use of or reliance on any information or materials (including election results) obtained through the Service or other SBS services.
• Any other use of the Service by a third party using User’s account (whether or not authorized by User).
• User’s breach of this Agreement, including any representations and warranties under this Agreement.
• User’s breach of any applicable law, including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and General Data Protection Regulation (GDPR) of 2018.
• Any third party's claim arising from SBS's use of phone numbers furnished by User in providing the Service except to the extent such claims are the result of the willful misfeasance or intentional misconduct of SBS.

Termination
The term of this Agreement shall be effective upon payment for the Service and will expire upon completion of the project(s) described in the invoice provided by SBS, unless otherwise terminated pursuant to the below section.

• Termination by User for Convenience. User may terminate this Agreement for any reason upon thirty (30) days written notice of such termination to SBS. Upon such termination, User will remain liable for the entire balance due plus reimbursable expenses accrued by SBS prior to receipt of the notice of termination from User, as well as any additional costs pursuant to this Agreement. These amounts shall be due upon receipt following the termination of this Agreement.
• Termination as a Result of Default. If either party (SBS or User) defaults in the performance of any term or condition hereof, or does or permits anything to be done contrary to any term or condition hereof, and such default continues uncured for a period of fifteen (15) days following written notice thereof from the non-defaulting party to the defaulting party, then the non-defaulting party may terminate this Agreement upon written notice and pursue any other remedy available in law or in equity, subject to the liability limitations contained in this Agreement.
• Payment Following Default by SBS. Upon termination by User as a result of SBS’ default, User will remain liable for only those charges accrued prior to the termination date for work completed by SBS, and for any reimbursable expenses incurred by SBS prior to the date of termination.
• Payment Following Default by User. Upon termination by SBS as a result of User’s default, User will remain liable for the entire balance of unpaid compensation for completion of services hereunder plus reimbursable expenses accrued by SBS prior to receipt of the notice of termination from User. The balance of unpaid compensation shall be due upon receipt following the termination of this Agreement by SBS.
• Effect of Termination. The parties agree that the terms and conditions set forth in this Agreement shall survive termination of this Agreement for any reason. In the event any suit or other action is commenced to construe or enforce any provisions of the Agreement, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall be paid by the other party a reasonable sum for attorney's fees and costs.

Confidentiality
SBS agrees that any information SBS receives or reviews concerning the User, including, but not limited to, any information concerning User’s past, present and future research, marketing, development, operations, and business activities, and any other information or material proprietary to User of which SBS may obtain knowledge or access from the User during the performance hereunder by SBS (hereinafter "Confidential Information ") is proprietary and confidential to the User. SBS agrees, on behalf of itself and all of its agents, to hold in confidence and not to directly or indirectly reveal, report, publish, disclose or transfer any of the Confidential Information to any person or entity, or utilize any of the Confidential Information for any purpose, except as may be agreed in writing in advance between SBS and the User. Confidential Information shall not include any information that was in the possession of SBS before receipt from the User, is or becomes a matter of public knowledge through no fault of SBS, is rightfully received by SBS from a third party without a duty of confidentiality, or is disclosed as described under the above “User Content” section.

Miscellaneous

• Website Maintenance and Management. SBS reserves the right to perform maintenance on our equipment or system which may result in interrupted service or errors in the use of the Service. SBS will attempt to provide prior notice of such interruptions, changes or denials of access, but does not guarantee notification.
• Message Delivery. SBS’ standard email and text messages have undergone testing for spam to help ensure delivery, however, Internet email delivery is not 100% reliable and SBS cannot be held responsible for undelivered, filtered or otherwise lost email or text messages.
• Notices. Any notices or demands or other communications required or permitted hereunder shall be in writing and shall be deemed to have been given when delivered personally or three (3) days after deposit in a regularly maintained receptacle of the United States Postal Service, postage prepaid, return receipt requested, and addressed at the addresses provided.
• Governing Law. The provisions of this Agreement shall be interpreted and construed in accordance with the laws of the State of Minnesota and the United States of America. The parties hereby submit and consent to the exclusive jurisdiction of the courts of the United States of America and the State of Minnesota in any dispute arising out of this Agreement.
• Force Majeure. SBS shall not be liable for, nor shall SBS be considered in breach of this Agreement due to, in whole or in part, any delay, failure or inability to perform the Service or other obligations under this Agreement as a result of a cause beyond its reasonable control, including, without limitation, any act of God or a public enemy or terrorist; any act, omission, or delay in action of any military, governmental, quasi-governmental, or regulatory authority or agency; any local, state, regional, or federal emergency; change in any law, rule, or regulation; any natural disaster or other like event; any epidemic or pandemic; any quarantine, self-quarantine, shelter-in-place, or like preventive measure issued or recommended by any governmental or quasi-governmental authority or agency; or any disruption or outage of communications, power or other utility. The time for performance required of SBS (to the extent such delay, failure, or inability is reasonably curable by SBS) shall be extended by the period of such delay and in no event shall SBS be expected to expend or incur any additional costs or expenses beyond those reasonably anticipated by SBS at the commencement of this Agreement, nor shall the occurrence of the Force Majeure Event affect the obligation of the User to pay money (or cause any third party to make payment of money on the User’s behalf) in a timely manner which matured prior to the occurrence of Force Majeure Event.
• Severability. If any provision of this Agreement is prohibited by law or held to be invalid, illegal or unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such prohibited, illegal or invalid provision had never constituted a part hereof, with this Agreement being enforced to the fullest extent possible.
• Renewals and Extensions. This Agreement may be renewed or extended for additional periods upon terms and conditions to be agreed upon by SBS and the User by authorized representatives.
• Copyrights and Trademarks. All trademarks, copyrights and copyrightable materials which are part of myDirectVote or Survey & Ballot Systems, Inc. (SBS), its websites and other materials, that are not User content, including without limitation, the SBS and myDirectVote logos, designs, text, graphics, pictures, photos, files, software, applications, code hidden text, databases, and other files and the selection and arrangement thereof are the property of and/or COPYRIGHT © 2011- Survey & Ballot Systems, Inc.

Please contact your SBS Account Manager with any further questions or concerns related to this document.