Last Updated: October 8, 2015
INTRODUCTION
This Agreement is a legal agreement (“Agreement”) between you (“Customer”) and Attendee Events, Inc. (“Company”) governing your access to and use of certain services provided by Company. In the event that you are agreeing to this Agreement on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to this Agreement, in which case, all references to “you” in this Agreement shall be references to such third party. In the event that you have entered into a separate written agreement with Company governing your access to and use of the services described herein (the “Separate Agreement”), the terms of the Separate Agreement shall control.
BY CLICKING [I AGREE], OR BY OTHERWISE A USING ANY OF THE SERVICES CONTEMPLATED IN THIS AGREEMENT YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT YOUR SUBMISSION OF THE CREDIT CARD PAYMENT FORM SERVES AS YOUR AGREEMENT TO THIS AGREEMENT.
1. DEFINITIONS.
1.1 “Customer Materials” means the data, content, and materials made available by Customer in connection with this Agreement, including the Customer Marks.
1.2 “Customer Marks” means Customer’s trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, product names, proprietary logos, proprietary symbols, and all other indicia of origin.
1.3 “Documentation” means the user manuals and other documentation published by Company and made available to Customer for the Services.
1.4 “Implementation Services” means the provision of implementation, set-up and/or training services for the Software Service as listed and described in the applicable Order.
1.5 “Order” means any written document agreed to by the parties setting forth the specific terms and conditions relating to the Services requested by Customer. Each agreed upon Order will (a) reference this Agreement, (b) be incorporated by reference into this Agreement, and (c) be subject to the terms and conditions of this Agreement. The initial Order is attached hereto as Exhibit A.
1.6 “Services” means those services to be provided by Company pursuant to an Order, including the Software Service.
1.7 “Software” means Company’s proprietary computer software programs described in an applicable Order, including any updates and new releases thereto, which are made available by Company in connection with the Software Service.
1.8 “Software Service” means the provision of access to the functionality of the Software over the Internet through the access methods described in this Agreement
1.9 “User” means Customer’s employees, independent contractors, customers and any other parties that are authorized by Company to use the Software Service.
2. SERVICES.
2.1 Provision of Services by Company. Subject to the terms and conditions of this Agreement, Company shall perform those Services as described in the applicable Order.
2.2 Cooperation. Customer shall provide Company with the Customer Materials, resources and assistance as Company may reasonably request in connection with the performance of the Services. Customer acknowledges and agrees that Company’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of such Customer Materials, resources, and assistance. Company shall have no liability for deficiencies in the Services resulting from the acts or omissions of Customer, Customer’s failure to abide by this Section 2.2, or Company’s performance of the Services in accordance with Customer’s instructions.
3. THE SOFTWARE SERVICE.
3.1 Access and Use of Software Service. Subject to the terms and conditions of this Agreement, Company grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable right to remotely access and use the Software Service, solely in accordance with (a) this Agreement, (b) the Documentation, and (c) the applicable Order and the other terms and conditions of this Agreement. Where access to the Software Service is limited to a specific subset of Users, each user will access the Software Service using a unique user identification name and password (“User ID”). Customer and each User shall be responsible for ensuring the security and confidentiality of its User IDs. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Service, and notify Company promptly of any such unauthorized use.
3.2 Restrictions on Use. Customer shall be liable for the acts and omissions of all Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability under, this Agreement. Customer will limit access to and use of the Software Service to authorized Users. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Customer will not, and will not permit any User to (a) modify, adapt, alter, translate, or create derivative works from the Software, (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Software Service to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, (d) interfere in any manner with the operation of the Software Service, (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors contained within the Documentation or displayed in connection with the Software Service (including Software), or (f) otherwise use the Software Service except as expressly allowed under this Agreement.
3.3 Support and Service Levels. As part of the Software Service and subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to (a) ensure that the Software is accessible through the Company Site over normal network connections, excepting downtime due to necessary maintenance and troubleshooting; (b) maintain the security of the Software Service; and (c) provide telephone, e-mail and/or web-based support services during Company’s regular business hours for Software related questions. Company reserves the right to modify the support services in its reasonable discretion from time to time, which modifications shall become effective upon notice to Customer. Customer shall be solely responsible for, at its own expense, acquiring, installing and maintaining all connectivity equipment, Internet and network connections, hardware, software and other equipment as may be necessary for its Users to connect to and utilize the Software Service.
4. PRICING; PAYMENT; TAXES.
4.1 Price. The fees for Services will be set forth in the applicable Order (“Fees”) and Customer agrees to pay Company all such Fees in accordance with the terms of this Agreement. Customer will be responsible for payment of all taxes (other than taxes based on Company’s income), fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to Company under this Agreement (excluding any taxes arising from Company’s income or any employment taxes). Prices for any Services requested by Customer that are not set forth in an Order shall be charged as mutually agreed to by the parties in writing.
4.2 Payment. Unless the applicable Order provides otherwise, Customer will pay Fees and expenses within 30 days after Customer’s receipt of the applicable invoice for such Services. All payments received by Company are non-refundable except as otherwise expressly provided in this Agreement. Company may charge interest on all late payments at a rate equal to the lesser of 1½% per month or the maximum rate of interest permitted by law, from the date due until paid. All payments will be made in United States dollars.
5. TERM AND TERMINATION.
5.1 Term. The initial term of this Agreement will begin on the Effective Date and continue until terminated as set forth herein (the “Term”). The term of each Order shall be set forth in such Order. Either party may termination this agreement upon prior written notice to the other party. In addition, if Customer breaches any material provision of this Agreement, Company may suspend the Services, and Customer’s and each User’s access thereto, upon written notice to Customer until such breach is cured.
5.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, (b) all rights granted in this Agreement will immediately cease, (c) Customer must promptly discontinue all access and use of the Software Service and return or destroy, all copies of the Documentation in Customer’s possession or control and (d) Company will promptly return, destroy or erase all Customer Materials. Sections 1, 3.2, 5.4, 6, 8, 9, 10, and 11 will survive termination of this Agreement for any reason.
6. PROPRIETARY RIGHTS.
6.1 Customer. As between the parties, Customer owns all right, title and interest in and to the Customer Materials (including all goodwill associated with the Customer Marks). Subject to the terms and conditions of this Agreement, Customer hereby grants to Company, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.1), non-sublicensable license to use the Customer Materials for the limited purpose of performing the Services for Customer under this Agreement. Any rights not expressly granted to Company hereunder are reserved by Customer, its licensors and suppliers.
6.2 Company. The Software, Documentation, Services, all proprietary technology utilized by Company to perform its obligations under this Agreement, all updates, enhancements, or modifications to any of the foregoing, and all intellectual property rights thereto, are the exclusive property of Company, its licensors and suppliers. Any rights not expressly granted to Customer hereunder are reserved by Company, its licensors and suppliers. Customer’s access and use of the Services is non-exclusive.
7. WARRANTY; DISCLAIMERS.
7.1 Services. Company warrants to Customer that the Services (excluding the Software Service, the warranties for which are set forth in Section 7.2) will be performed in a professional manner consistent with this Agreement and the applicable Order. Company shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of this warranty set forth in this Section 7.1, re-perform the Services which gave rise to the breach or, at Company’s option, refund the fees paid by Customer for the Services which gave rise to the breach; provided that Customer shall notify Company in writing of the breach within 30 days following performance of the defective Services, specifying the breach in reasonable detail.
7.2 Software Service. During the Term, Company warrants that the Software Service will be provided in accordance with the Order and the Documentation. Company does not warrant that the Software Service will be completely error-free or uninterrupted. Company will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct or provide a workaround for any reproducible error in the Software Service preventing its use, provided that such error is reported to Company by Customer in writing within 30 days after Customer experiences it (each, an “Error”). If, however, Company is unable to provide a correction or workaround for any such Error within a reasonable time after receiving notice of the Error from Customer, Customer may terminate this Agreement upon notice to Company and, as its sole obligation, Company shall refund the amounts prepaid by Customer for the Software Service for the period during which the Software Service was not usable by Customer and that period falling beyond the effective date of such termination. The warranties set forth in this Section 7.2 do not cover or apply to (i) any Error caused by Customer or other parties within Customer’s control, (ii) any Error or unavailability of the Software Service caused by use of the Software Service in any manner or in any environment inconsistent with its intended purpose, (iii) any of Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Software Service, or (iv) any equipment or software or other material utilized in connection with the Software Service used by Customer contrary to manufacturer’s instructions.
7.3 Right to Customer Materials and Third Party Survey Data. Customer represents and warrants that it has the right to use the Customer Materials and permit Company to use the Customer Materials as contemplated by this Agreement.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, THE SERVICES ARE PROVIDED WITHOUT OTHER WARRANTIES OF ANY KIND AND COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. INDEMNIFICATION.
8.1 Claims Against Customer. Company will defend, at its own expense, any claim, suit or action against Customer brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Software infringes any intellectual property rights of such third party (“Customer Claim”), and Company will pay those costs and damages finally awarded against Customer in any such Customer Claim that are specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Company in writing of such Customer Claim, (b) giving Company sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Company’s request and expense, assisting in such defense. In the event that the use of the Software Service is enjoined, Company shall, at its option and at its own expense either (i) procure for Customer the right to continue using the Software Service, (ii) replace the Software with a non-infringing but functionally equivalent product, (iii) modify the Software so it becomes non-infringing or (iv) terminate this Agreement and refund the amounts paid by Customer for Software Service that relate to the period during which the Software Service was not usable by Customer. Notwithstanding the foregoing, Company will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon: (x) any use of the Services not in accordance with this Agreement, (y) any use of the Services in combination with products, equipment, software, or data not supplied or approved by Company if such infringement would have been avoided without the combination with such other products, equipment, software or data, or (z) any modification of the Services by any person other than Company or its authorized agents or subcontractors. This Section 8.1 states Company’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
8.2 Claims Against Company. Customer will defend, at its own expense, any claim, suit or action against Company brought by a third party to the extent that such claim, suit or action is based upon Customer’s or Company’s use of any Customer Materials in accordance with this Agreement (“Company Claim”), and Customer will pay those costs and damages finally awarded against Company in any such action that are specifically attributable to such Company Claim or those costs and damages agreed to in a monetary settlement of such Company Claim. The foregoing obligations are conditioned on Company: (a) promptly notifying Customer in writing of such Company Claim, (b) giving Customer sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any Company Claim to the extent based upon any use of the Customer Materials by Company in violation of this Agreement.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE INITIAL TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.
10. CONFIDENTIALITY.
10.1 Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of this Agreement. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. All non-public information regarding the Software, Services, and Documentation shall be considered Company’s Confidential Information, notwithstanding any failure to mark or identify it as such. All non-public Customer Materials shall be considered Customer’s Confidential Information, notwithstanding any failure to mark or identify it as such.
10.2 Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by this Agreement, and will disclose Confidential Information only to the employees or, subject to Section 3, individual independent contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
10.3 Exceptions. Recipient’s obligations under Section 10.2 above with respect to any Confidential Information of Discloser will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by Discloser, (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is, or through no fault of Recipient has become, generally available to the public, or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
11. GENERAL PROVISIONS.
11.1 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
11.2 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.
11.3 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, facsimile, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page, and will be effective upon receipt. Additionally, electronic mail and facsimile may not be used for providing legal notices, but may be used to distribute routine communications and to obtain approvals and consents.
11.4 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules.
11.5 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 3 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
11.6 Relationship of the Parties. The parties acknowledge that Company is an independent contractor of Customer, and its employees are not employees of Customer. Nothing in this Agreement or any Order will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in this Agreement is intended to confer any rights or remedies on any other person or entity, which is not a party to this Agreement.
11.7 Compliance with Laws. Each party shall comply with those laws and regulations in jurisdictions within the United States that are specifically applicable to the applicable party notwithstanding this Agreement.
11.8 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.
11.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.11 Entire Agreement. This Agreement, including any Order and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement sets forth the general terms and conditions applicable to all Services provided by Company to Customer under the specific terms and conditions set forth in the applicable Order. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Order shall govern. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of Company and Customer by their duly authorized representatives.
