END USER SERVICE TERMS
BEFORE USING EVENTMOBI’S SERVICES, PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE SERVICE ORDER EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE SERVICE ORDER (“CUSTOMER”) AND 5 TOUCH SOLUTIONS INC. (“EVENTMOBI”). THESE TERMS AND THE SERVICE ORDER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN EVENTMOBI AND CUSTOMER, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE SERVICE ORDER.
1. DEFINITIONS
1.1 “App” means the mobile application that attendees of an Event can download into their mobile devices to access information regarding the Event. The App is created and revised by the Customer using the CPM.
1.2 “Event” means the planned occasion identified by the Customer.
1.3 “Event Data” means any data uploaded by a Customer into the CPM that would typically be provided in the normal planning, coordination and execution of event planning programs. Event Data excludes, without limitation, any personal data, as defined by Privacy Laws, any financial information of any nature, or any other financial or personal information of the attendees that has been collected by Customer in contravention of any applicable privacy laws.
1.4 “Event Link” means a custom link that serves as a dedicated mobile web app for the Event, accessible during the Term of the Event, at https://eventmobi.com/[Event Short Code] that delivers the App to the attendees.
1.5 “Content Manager Platform” or “CPM” means the online website application and associated software systems provided by EventMobi via https://experience.eventmobi.com or at such other designated URL as EventMobi may assign from time to time (collectively, the “Systems”).
1.6 “Service Order” means the ordering documents from Customer’s purchases from EventMobi executed hereunder by the parties from time to time. Service Orders shall be deemed incorporated herein.
1.7 “Professional Services” means the custom development or customization services provided by EventMobi specific to the Customer.
1.8 “Usage Analytics” means all analytics that are gathered via the CPM throughout the duration of the Event. This includes, but is not limited to, number of page views, number of unique visitors, and the most frequently selected modules within the App.
2. THE CONTENT MANAGER PLATFORM OR CPM
2.1 Subject to the terms and conditions of these Terms, EventMobi grants to Customer, a limited, worldwide, non-exclusive, temporary, non-transferable (except as explicitly permitted in these Terms) right to access and use the CPM solely in connection with its internal business operations.
2.2 Use Restrictions. Customer shall use the CPM for internal business purposes as contemplated by the Terms and shall not: (i) wilfully tamper with the security of the systems or tamper with other customer accounts of EventMobi, (ii) access data on the systems not intended for the Customer, (iii) log into a server or account on the systems that the Customer is not authorized to access or otherwise translate any underlying software in the CPM in such a manner that it appears to be part of Customer’s own or a third party website, (iv) attempt to probe, scan or test the vulnerability of any systems or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of the systems unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the CPM or make the CPM available to a third party other than as contemplated in these Terms; (vii) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms in the CPM; (viii) use the CPM for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ix) provide to third parties any evaluation version of the CPM without EventMobi’s prior written consent; (x) deep link to any page of the CPM or otherwise link in a manner that bypasses EventMobi’s homepage for the CPM; (xi) upload any personal data (as defined by Privacy Laws), any financial information of any nature, or any other financial or personal information of the attendees that has been collected by Customer in contravention of any applicable privacy laws; or (xii) use the CPM in violation of EventMobi’s Privacy Policy available at www.EventMobi.com.
2.3 EventMobi has the right to terminate a contract at any time if there is a violation of regional restrictions that may exist on product usage.
2.4 Compliance with Laws. Each party will perform its respective rights and obligations under these Terms in compliance with all applicable laws and regulations.
3. WARRANTIES
3.1 Security Warranty. EventMobi has implemented Appropriate Security Measures (as hereinafter defined) and maintains the CPM at reputable third party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Event Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Event Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by EventMobi, whether by accident or otherwise.
Customer acknowledges that use of the CPM will involve transmission of Event Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties when communicated across the Internet or other networks. EventMobi is not responsible for any Event Data which is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by EventMobi and its subcontractors, including but not limited to the Internet and Customer’s local network. Customer shall protect its authorized user login names and passwords from access or use by unauthorized parties, and is solely responsible for its failure to do so.
Customer must promptly notify EventMobi of any suspected security breach at security@eventmobi.com.
3.2 Functionality Warranty. EventMobi warrants that the CPM will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation provided by EventMobi.
3.3 Mutual Warranties. Each party represents and warrants to the other that: (a) the Service Order has been duly executed and delivered and these Terms constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Service Order, or performance of these Terms; and (c) the execution and delivery of the Service Order, and performance of these Terms, does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
3.4 Disclaimer. Except as expressly provided herein, EventMobi DISCLAIMS ANY WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. EventMobi does not warrant that the CPM will meet the Customer’s requirements or that the operation of the CPM will be uninterrupted or error-free. Further, EventMobi does not warrant that all errors in the CPM can or will be corrected.
4. PROFESSIONAL SERVICES
4.1 Professional Services. Customer may contract with EventMobi to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Service Order. Unless otherwise specified in the applicable Service Order, any unused portion of the Professional Services will expire and may not be carried over after 12 months from the Service Order effective date.
4.2 Changes to Professional Services. Customer may reasonably request in writing that revisions be made with respect to the Professional Services set forth on the Service Order. If Customer’s requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then EventMobi will deliver to Customer a written proposal reflecting EventMobi’s reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that will apply to the requested revisions. If Customer approves the proposal, then the parties will execute the proposal as an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and EventMobi will have no further obligation with respect to the relevant change requests.
4.3 Final Revision Date. Customer may request any changes to their Professional Services up until the Final Revision Date, which date shall be agreed to by the Customer and EventMobi. The Final Revision Date will be outlined on the Service Order.
Any changes requested after the Final Revision Date will result in additional fees and/or may not be able to be processed before the Event date. 4.4 Project Management. Each party will designate a project leader as a single point of contact within each party’s organization to manage the Professional Services described on the Service Order. The project leaders will meet as necessary to manage the Professional Services to be performed as indicated on the Service Order. Disputes will be escalated to more senior executives if the project leaders are unable to resolve a problem.
4.5 Customer’s Responsibilities. Customer will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable EventMobi to perform the Professional Services. Customer acknowledges that EventMobi’s ability to provide Professional Services as described on the Service Order may be affected if Customer does not provide reasonable assistance as set forth above.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms. Customer shall pay to EventMobi all of the fees specified in the Service Order (the “Fees”). Except as otherwise provided in the Service Order, all Fees are quoted in US currency; payment obligations are non-cancellable; and Fees are non-refundable. Fees shall be invoiced in advance in accordance with the terms of the Service Order. Unless otherwise stated in the Service Order, Fees are due within 30 days from the invoice date. In the event of nonpayment of Fees, Customer agrees to pay the cost of collection including reasonable attorneys’ fees and costs. Interest shall accrue with respect to a payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in these Terms), EventMobi reserves the right to suspend the CPM without liability to EventMobi, until such account is paid in full. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than EventMobi’s income taxes. If EventMobi pays any such taxes on the Customer’s behalf, the Customer agrees to reimburse EventMobi for such payment unless the Customer provides EventMobi with a valid exemption certificate authorized by the appropriate taxing authority.
5.2 Suspension for Non-Payment. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in these Terms), EventMobi reserves the right to suspend Customer’s Subscription to the Content Manager without liability to EventMobi, until such account is paid in full.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the date of the initial Service Order and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Service Orders and/or Statements of Work until (i) the end of the Subscription Term under such Service Order, (ii) such Service Order is terminated by the parties, or (iii) there has been full performance of the parties’ respective obligations under such Service Order.
6.2 Termination for Material Breach. These Terms may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination by Customer without cause shall not relieve Customer of the obligation to pay EventMobi the fees agreed in the Service Order.
7. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
7.1 CPM. EventMobi retains all right, title, and interest in and to the CPM, the Professional Services, the Trademarks, and documentation provided to Customer.
7.2 Trademarks. This Agreement does not authorize Customer to use EventMobi’s name or any of its trademarks or service marks. EventMobi may only use Customer’s name, trademarks and service marks solely to the extent necessary to fulfill its obligations under these Terms or as otherwise explicitly authorized in these Terms.
7.3 Event Data. Event Data is Customer’s property and Confidential Information. Customer is responsible for users’ compliance with this Agreement. Customer shall comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with the Event Data and its collection and use, including without restriction, the EU Data Protection Directive and any other laws applicable to the Customer related to privacy, publicity, data protection, electronic communications, consumer child protection laws, obscenity, anti-defamation laws and anti-spamming laws. Customer is responsible for the collection, legality protection and use of the Event Data that is used in connection with the CPM and the App. Customer grants EventMobi a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate and display Event Data solely as required to provide or perform the CPM.
7.4 Event Data Storage and Retention. EventMobi will retain the Customer’s Event Data during the term of this Agreement (the “Retention Period”). Upon Customer’s request, which may be made at any time and from time to time during the Retention Period, EventMobi will make available for secure retrieval by Customer all of Customer’s Event Data then in EventMobi’s possession at EventMobi’s then current rate for data retrieval. Immediately following the applicable Retention Period EventMobi shall delete Customer’s Event Data from its Systems.
7.5 Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of the Service Order. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own proprietary information (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 EventMobi Indemnification. EventMobi shall defend, indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the CPM, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing, if EventMobi reasonably believes that the Customer’s use of any portion of the CPM is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then EventMobi may, at its expense: (i) procure for the Customer the right to continue using the CPM; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the CPM as set out herein. EventMobi shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the CPM or the App with other equipment or software not supplied by EventMobi or in a manner not consistent with EventMobi’s instructions. THIS SECTION SETS FORTH EVENTMOBI’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2 Customer Indemnification. The Customer agrees to defend, indemnify and hold EventMobi harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against EventMobi by a third party arising from or relating to Customer’s use of the Event Data, the App, or the CPM in violation of these Terms.
8.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID OR DUE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
10. GENERAL
10.1 Entire Agreement. This Agreement, inclusive of the Service Orders and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto.
10.2 Publicity. Customer agrees that EventMobi may use Customer’s name and logo on EventMobi’s website, and as a part of a general list of EventMobi’s customers for use and reference in corporate, promotional and marketing literature. Additionally, Customer agrees that EventMobi may issue a press release identifying Customer as a customer of EventMobi in accordance with Customer’s standard guidelines. Customer agrees to be a reference for EventMobi over the term of the Service Order.
10.3 Independent Contractors. The parties are independent contractors. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate merger or acquisition provided that the assignee is not a competitor of the non-assigning party. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorized as an agent, employee or representative of the other party.
10.4 Modification and Waiver. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
10.5 Governing Law and Arbitration. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to conflicts of laws principles. In the event of any controversy or claim arising from or related to these Terms, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Except for disputes, controversies, claims or collection efforts regarding Customer’s failure to pay any charges, amounts or fees invoiced to Customer, any and all disputes, controversies and claims arising out of or relating to these Terms or any Service Order, including its/their validity, shall be handled, determined, and resolved by arbitration conducted in Toronto, Ontario, Canada, before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect of the Canadian Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings.
Each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental, or consequential damages, and each party irrevocably waives any damages in excess of direct compensatory damages.
10.6 Notices. Notices regarding the following may be posted on EventMobi’s website: (i) modifications, impositions or increases to Fees; (ii) new or modified documentation, including but not limited to EventMobi CPM Service Level Agreement, Privacy Policy and other internal documents; (iii) changes to rates, other than those affecting Customer under these Terms; and (iv) new services and information. The changes will become effective and will be deemed notices described herein are accepted by Customer, (a) immediately for those customers who purchase the right to access and use the CPM after the update is published on EventMobi’s website, or (b) for those having pre-existing accounts, the updated Terms of the access and use of the CPM will be deemed effective with Customer’s continued use of the CPM. Notices regarding: (a) material changes to these Terms; (b) internal or external changes materially impacting EventMobi’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses given above in the heading to these Terms or to such other address as a Party may, from time to time, designate by notice to the other Party.
10.7 Assignment. These Terms may be assigned and/or transferred to any third party, affiliate, or other successor in interest of a party, including without limitation, as a result of merger or consolidation, or in connection with the sale or transfer of all or substantially all of its business or assets to which these Terms relate, or in connection with a corporate reorganization, or in connection with any other business purpose; provided that such assignee is bound by the applicable terms of these Terms.
10.8 Force Majeure. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
10.9 Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect.