Version: September 6, 2018
1.1 License Grant. Cvent Canada, Inc. (“Cvent”) hereby grants to Customer (“Customer”, “You”, “Your”) a non-sublicensable, non-transferable, non-exclusive right to access and use its “Licensed Software” which is comprised principally of: (i) the content management portal at https://home.quickmobile.center/ (“EventCenter”) for input of data and other content by You; and (ii) a web-based and/or mobile application-based component (the “App”), a specific instance of which may be customized by You for a specific event or events and made available for download and use by attendees of the event(s) for the period of time and/or the event(s) agreed in writing by Cvent and the Customer and as set forth on the Proposal (the “Term”). The Customer may not resell or use the Licensed Software to provide services to third parties. Additional license fees shall be payable for access and use of the Licensed Software that has not been agreed in writing by Cvent and Customer.
These Terms and the Proposal together comprise a binding written agreement between You and Cvent, effective as of the date of mutual execution of the Proposal by You and Cvent (the “Agreement”).
In the event of any conflict between the provisions contained in a Proposal and these Terms, the provisions in the Proposal shall control (provided, however, that the fact that a provision appears in an Proposal but not these Terms, or in these Terms but not the applicable Proposal, shall not be deemed to be a conflict for purposes of this sentence).
1.3 If the Term spans several years and the Proposal specifies annual fees, then fees are due in each year of the Proposal (“Contract Year”) or as otherwise specified. The Proposal will renew at the end of its Term as specified (and not on a per year basis) for another Term, equal to the length of the Term specified in the Proposal, unless You provide timely notice of nonrenewal as specified in the applicable Proposal.
1..4 Customer Obligations. Customer shall provide any text, images, audio, video, designs or other data, content, materials and information reasonably necessary to enable Cvent to perform the contracted services (“Customer Data”). Failure to provide all Customer Data required for successful operation of the Licensed Software does not invalidate the Agreement or Your obligation to pay for the Licensed Software. Cvent will provide You with documents and templates listing the type and format of the information needed to upload Customer Data into the Licensed Software. Customer Data may also include information or materials which You obtain from third party social networking sites and cause to be presented through the Licensed Software. Cvent may adjust any agreed timetable or delivery schedule, as reasonably necessary, due to any failure or delay by Customer to perform its obligations under this Agreement. Customer will at all times comply fully with all laws, including with respect to the performance of this Agreement, and the collection, use and storage of all Customer Data.
2. THE LICENSED SOFTWARE.
2.1 Customer Data. Customer is solely responsible for the Customer Data and represents and warrants that:
- it will not provide to Cvent or transmit through the Licensed Software any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (c) contains violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content;
- all Customer Data is correct and current, is owned by You or You have the right to grant the license set forth below in these Terms;
- all placements of Customer Data have been approved for Cvent’s use; and
- Your execution, delivery and performance of the Agreement will not violate, conflict with, or require additional consent under any applicable law or contractual arrangement that You are a party to.
Cvent is under no obligation to review Customer Data for accuracy or potential liability. All use of the Licensed Software in conjunction with any Customer Data is the responsibility of Customer, and You shall defend, indemnify and hold Cvent harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Cvent or which are agreed by Cvent to be paid by way of settlement or compromise, arising out of any third-party claim due to a breach of the foregoing representations and warranties or any violation of applicable law by You. You grant Cvent a limited, non-exclusive right and license to use the Customer Data (including copyright, trademark, patent, publicity or other rights) for Cvent to provide the Licensed Software and the right to disclose the Customer Data to third-party service providers to operate the Licensed Software.
2.2 Mobile Platforms:
a) Use of the Licensed Software to deploy an App for Your event(s) will be subject to rules and procedures established by the third parties that operate and control the applicable online marketplaces for mobile device applications (collectively, including Apple and Google, the “Mobile Marketplaces”).
b) You acknowledge and agree that:
- You, Your employees and any agents acting on Your behalf shall abide at all times by such rules and procedures and any changes thereto;
- Cvent has no control over such rules and procedures, and cannot be responsible for ensuring performance or availability of any Mobile Marketplace;
- Cvent is not liable for any delays in the delivery or deployment of Your Apps caused by changes to, or Your failure to adhere strictly to, any such rules or procedures; and
- Cvent is not liable for any delays in the delivery or deployment of Your Apps due to a lack of availability or downtime of any Mobile Marketplace.
c) Without limiting the generality of the foregoing, You agree:
- not to use Your Apps for the purpose of sending unsolicited messages to end users or for the purpose of phishing or spamming, including, but not limited to, engaging in any types of activities that violate anti-spamming laws and regulations, or that are otherwise improper, inappropriate or illegal; and
- not to make use of push notifications in a manner which is excessive, as may be determined by the applicable Mobile Marketplace.
2.3 BuildProcess and Minimum Timelines:
You will be assigned a Customer Success Manager (CSM) shortly after submission of Your signed Proposal. The CSM will collaborate with You to schedule delivery dates for You to provide event information, graphics and other Customer Data for configuring the App for Your event(s) (the “Delivery Schedule”). Cvent is not responsible for delays resulting from any failure by You to comply with the agreed upon Delivery Schedule. If the Proposal spans multiple events, You shall be responsible for notifying Your CSM of each event at least sixty (60) days prior to the desired launch date for such event within the App(s) in order to ensure timely delivery. A timely release of Your App requires that all Customer Data be submitted and approved for submission to the Mobile Marketplaces no later than 14 days prior to Your agreed upon App launch date. The EventCenter shall continue to be available to You to add and modify the Customer Data before, during and after publication.
2.4 Reviewand Submission:
a) All Customer Data must be submitted through the EventCenter, and, unless otherwise specified as an additional Service in Your Proposal, You are solely responsible for the build of the App through the EventCenter.
b) You will have access to Cvent support staff as stated in Section 4 (Support), and You will have an opportunity to review and make changes prior to submission of the App to the applicable Mobile Marketplaces.
c) The App needs to be submitted to the applicable Mobile Marketplaces, and You acknowledge and agree that Cvent shall bear no expenses and assumes no risk or liability for any administrative actions performed by Cvent needed to submit the App to the applicable Mobile Marketplaces on Your account, if applicable.
d) You may choose to publish your App in one of the following three ways:
- Engage Cvent to publish your event(s) in the Mobile Marketplace within Cvent’s container app – Cvent Events . By engaging Cvent to publish your event for you, you consent to providing Cvent the necessary information to access to the applicable Mobile Marketplace (i.e., through access to the developer account) to publish your App on your behalf. Cvent will use its commercially reasonable effort to obtain approval by the Mobile Marketplace, within the mutually agreed timeline.
- Publish your own branded multi-event app, and in order to do so either of the following methods may be agreed upon:
A) Self-publish your App on your own, and for this you shall need –
- Apple and Google Developer Accounts (non-enterprise)
- Internal resources familiar with Apple App Store and Google Play distribution
- For Apple, Access to a Mac and the knowledge on how to create the required certificates and provisioning profiles
B) Authorize Cvent to publish your App in the Mobile Marketplace on your behalf, and for this you shall need –
- Apple and Google Developer Accounts (non-enterprise)
- Authority to add Cvent as an admin, to access and manage your Developer Account. However, Cvent shall bear no expenses and assumes no risk or liability for any administrative actions taken by Cvent in its limited capacity of submitting the application through your Developer Account.
3. Self-publish your App in your internal app store, circumventing the pubic Mobile Marketplace. In this case too, you will need the additional resources as stated in clause 2.4(d)(ii)(A). In addition, you will need –
- Apple Enterprise Developer Account vs a standard Apple Developer Account
- Internal resources familiar with Apple Enterprise app distribution outside the public Apple App Store
e) You acknowledge and agree that in the event you choose to publish your App as set forth in clauses 2.4(d)(ii) and 2.4(d)(iii) above, the primary control of the developer account shall remain with you and as such:
- you will be solely responsible to ensure compliance with all the rules and procedures established by Apple and Google.
- you shall secure your Enterprise Distribution License and an Enterprise Developer Account at your sole expense; and maintain it securely with all data privacy procedures in place to safeguard the Customer Data.
- Cvent will bear no responsibility for any delays in publishing or rejection of your App by Apple or Google, and any such delay will not modify your obligations to Cvent including, but not limited to, your payment obligations. If your App is rejected by a Mobile Marketplace, you may engage Cvent to publish in Cvent’s container app.
- If you terminate or do not renew this Agreement, you must not publish any App created under this Agreement in any manner.
During the term of the Agreement, if Cvent upgrades the version of the App or EventCenter You are using under the Agreement, You will not be charged an upgrade fee. Should Cvent offer additional optional software modules in the future that complement the App or EventCenter, You may elect to purchase the optional software modules for an additional fee.
2.6 Additional Graphics:
Cvent provides optional graphics arts services (“Additional Graphics”) which may be used by You to supplement the Customer Data including to create splash screen, icons, banners, and background, for an additional fee.
2.7 Supported Devices, Operating Systems and Software Releases:
Cvent currently provides native, compiled Apps for the following devices: iPhone, iPod Touch, iPad, Android phones and Android tablets. Submission is made to Apple iTunes / App Store and Google Play Store only.
- Cvent also provides a web application version of the App that can be accessed from any mobile device, including BlackBerry devices, or a regular computer with a good Internet connection and a compatible browser. Some features may not be available on all supported devices or the web application version.
2.7.2 Operating Systems:
Cvent provides technical support for Apps on the current major release and immediately preceding major release of iOS and Android OS.
2.7.3 Software Releases:
Cvent provides technical support for Cvent Apps which are based on the most current release of the App or prior versions of the App for releases occurring up to six (6) months prior to the current release. Customers will be provided opportunities to upgrade their existing Apps to the most current App release.
2.8 Licensed Software Features:
Licensed Software features include an event schedule, exhibitor list, speaker list, maps, networking opportunities, exhibitor and sponsor advertising opportunities, integration with social media platforms, and access to the EventCenter to manage Customer Data and run metrics on App usage. Optional features and services (including Click scavenger hunt photo game, live polling, Social Wall curated social content, integration with third party databases, and Premium Quick Event) are available if specified on the applicable Proposal.
2.9 User Ids:
2.10 Use Restrictions.
Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Licensed Software; (b) interfere in any manner with the operation of the Licensed Software or the hardware and network used to operate the Licensed Software; (c) sublicense or transfer any of Customer’s rights under this Agreement, or otherwise use the Licensed Software for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Licensed Software; or (e) otherwise use the Licensed Software in any manner that exceeds the scope of use permitted under Section 1.1 hereof. The Customer may not conduct vulnerability scans or penetration testing of the Licensed Software or Cvent’s systems without the prior express permission in writing of Cvent.
3. FEES, PAYMENT AND SUSPENSION OF SERVICES.
- As consideration for the provision of the Licensed Software and Services provided by Cvent under this Agreement, Customer will pay Cvent the aggregate fees agreed in writing by the parties (the “Fees”) and as set forth in the applicable Proposal in accordance with the terms agreed in writing by the parties or, if not so specified, within thirty (30) days of invoice. All payments shall be made in Canadian Dollars.
- Payment shall be by check unless otherwise specified on your Proposal. Except where prohibited by applicable law, if You pay any fees due hereunder via credit or debit card, then Cvent reserves the right to charge You an additional fee equal to three percent (3%) of the amount charged, and You hereby consent to such charge being made against the credit or debit card. Cvent may impose a special handling charge of 3-5% if special invoicing requirements apply (such as EDI, third party systems such as Ariba, or other dedicated invoicing systems). Annual fees are charged per annum. As an example, if the Proposal Term spans three years, you will be charged the annual amount three times.
- Customer will reimburse Cvent for all reasonable, pre-approved out-of-pocket expenses, incurred by Cvent in the performance of its obligations under this Agreement.
- Other Payment Terms. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Cvent’s net income. All past due payments will accrue interest due at a rate of two percent (2%) per month on the unpaid balance from the due date until paid in full, unless the applicable maximum rate chargeable is less, in which case that rate shall apply. Cvent reserves the right (in addition to any other rights or remedies Cvent may have) to discontinue the Licensed Software and Customer’s access to the Licensed Software if any Fees or expenses are more than ten (10) days overdue until such amounts are paid in full.
- Cvent reserves the right to increase recurring fees payable hereunder at any time upon sixty (60) days prior written notice provided that such increase is no greater than the Annual Price Cap as defined in the applicable Proposal. Notwithstanding anything contained herein to the contrary, any Professional Services (as defined below) fees will not be subject to the Annual Price Cap. “Professional Services” shall mean data conversion, data mapping, implementation, site planning, configuration, integration and deployment of service, training, project management and other consulting services.
- During the term of the Agreement, Cvent agrees to provide You with email and telephone access to the Cvent Support Center all year round seven day a week and 24 hours a day i.e. 24X7X365. If You have more than one EventCenter login, You agree to appoint an Authorized Support Contact who will contact the Cvent Support Team directly on behalf of Your other EventCenter users.
- Upon expiration of the current Term of the Agreement, or in the event you choose not to renew the Agreement with Cvent, the App(s) for Your event(s) must be removed from all distribution sources (depending on the means by which your App is published pursuant to clause 2.4(d) above) and Mobile Marketplaces, and Cvent shall retain no obligation to support, update or maintain such App(s).
5. CONFIDENTIAL INFORMATION.
- “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Without limiting the foregoing, Confidential Information of Cvent includes the Licensed Software and the existence and terms of this Agreement.
- Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 4.2 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
- The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s written records, or (d) is lawfully disclosed to the receiving party by a third party not subject to a restriction on disclosure.
- You acknowledge that mobile devices may be lost or stolen, and the transmission, processing or storage of sensitive information on such devices creates certain security risks that Cvent cannot mitigate, including without limitation onward dissemination of Customer Data by attendees of the event(s). Therefore, Customer agrees that Cvent is not responsible for the unauthorized dissemination of any Customer Data distributed to a mobile device through the Licensed Software.
6.1 Licensed Software and Technology. Customer acknowledges that Cvent retains all right, title and interest in and to the Licensed Software and all software, materials, formats, interfaces, information, data, content and information and technology used by Cvent or provided to Customer in connection with the Licensed Software and any modifications to or derivative works of any of the foregoing (the “Cvent Technology”), and that the Cvent Technology is protected by intellectual property rights owned by or licensed to Cvent. Other than as expressly set forth in this Agreement, no license or other rights in the Cvent Technology are granted to the Customer, and all such rights are hereby expressly reserved by Cvent. Cvent shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Licensed Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Licensed Software. Without limiting the foregoing in this Section 5.1, Customer may not replicate, improve, modify, or create variations of any Cvent Technology or Cvent Confidential Information. Customer may not make, use, sell, exploit, commercialize or seek patent protection for any compositions or matter relating to the Cvent Technology or Cvent Confidential Information, new applications and uses for the Cvent Technology and/or Cvent Confidential Information, and combinations of the Cvent Technology with other products or software.
6.2 Customer Data.
- Data, including, but not limited to, hotel information, program information, contact information, and other related data, may be provided by Customer in order to facilitate their use of the Licensed Software. As a policy, we do not examine any of Your data except at Your request and only for the purposes of providing You with technical support, hence Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the data it submits to the Licensed Software.
- Customer retains all right, title and interest in and to the Customer Data. Cvent will only use Customer Data in the course of providing the Licensed Software and contracted services under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Licensed Software and the performance of the contracted services and grants to Cvent all necessary licenses in and to such Customer Data solely for such purposes. Cvent will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Cvent will access and use such Customer Data only as required to perform requested services on behalf of Customer.
- Upon Customer’s written request made within 30 days after the effective date of expiration or termination of this Agreement, Cvent will, provided Customer is not in breach of any of its obligations under the Agreement and upon Customer’s payment of the applicable fees, make available to You for download a file of Your data in its then current format. After such 30-day period, Cvent shall have no obligation to maintain or provide any data and shall thereafter, unless legally prohibited, delete all Your data maintained in its production systems, provided Cvent may retain archival copies of Your data on offline backup media for a reasonable period of time not to exceed two (2) years following expiration or termination of any Proposal.
6.3 Sensitive Personal
Notwithstanding any provision to the contrary in the Agreement, You acknowledge and agree that use of the Licensed Software to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Licensed Software and therefore You shall be solely responsible for any such use of the Licensed Software by You or Your employees, agents, subcontractors or clients, and Cvent shall bear no risk or liability for same.
“Sensitive Personal Information” shall be defined as:
a) social security numbers;
b) passport numbers or other government issued ID numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body;
c) health or medical information (other than food allergies or medical contact information);
d) financial account information; and
e) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, email address, and phone number).
7. SUBSCRIPTION RIGHT:
7.1.1 Subject to Your acceptance and continuing adherence to these Terms, Cvent grants You a worldwide, non-exclusive, non-transferable, and revocable subscription right, without the right to grant sublicenses, to access and use the Licensed Software during the Term hereof solely for the purpose of configuring and deploying an App for Your event(s).
7.1.2 The Licensed Software may only be used for the number of events specified on Your Proposal, and, if you exceed the contracted number of events as specified on Your Proposal, You will be charged using the then-current rates for the overage.
7.1.3 Except for the foregoing subscription right, no other rights to any component of the Licensed Software are granted hereunder.
7.2 No Title:
This subscription right confers no title or ownership in the Licensed Software or any component thereof. This subscription right is not a sale of any rights in the Licensed Software including any instances of the App published for Your event(s). The Licensed Software is owned by Cvent and You must treat it like any other copyrighted material.
7.3 No Subsidiaries:
This Agreement is for Use on behalf of a single company or organization. You may not use this software on behalf of multiple companies or organizations. Supplemental subsidiary subscription right is available for an additional fee.
7.4 No De-compilation:
You may not copy or modify the App, reverse engineer it or disassemble/de-compile the App.
7.5 Not for Resale:
You agree that You will not use the App or any component of the Licensed Software for hire on behalf of another individual or organization or in any other resale capacity.
7.6 No Source Code:
You will not receive or have access or subscription right to any source code for the App.
7.7 Changes and Environment:
Access is limited to the version of the Licensed Software in Cvent’s production environment. Cvent may from time to time at its sole discretion update the Licensed Software and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements.
Cvent will provide Customer online access to and use of the Licensed Software via the Internet by use of a Customer-provided browser. The Licensed Software will be hosted on a server that is maintained by Cvent or its designated third-party supplier or data center. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Licensed Software, including but not limited to Internet access and adequate bandwidth.
8. TERM AND TERMINATION.
8.1 This Agreement will commence on the date agreed by the parties and continue for the Term.
8.2 Termination for Breach. Either party may terminate this Agreement (i) upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such material breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership.
8.3 Prohibited Uses. You will not use the Licensed Software in any manner which exceeds the scope of Your subscription right, or which violates Your obligations under Section 2 (Customer’s Use of The Licensed Software) of these Terms, or for any illegal purpose or in a manner which in Cvent’s reasonable judgment creates a foreseeable risk of harm to the Licensed Software, other Cvent customers or third parties (all the foregoing “Prohibited Uses“). If You do use the Licensed Software for any Prohibited Uses, Cvent may immediately suspend or terminate Your access to the Licensed Software. Cvent may also take any self-help remedies necessary to prevent continued Prohibited Uses, including, but not limited to, deleting infringing content and/or removing access to contact information of individuals who lodge complaints with Cvent or Cvent ‘s web-hosting company. You are still responsible for full payment of your Proposal even if Your access to the Licensed Software is suspended or terminated for Prohibited Uses.
8.4 Cvent reserves the right to suspend or discontinue support services hereunder (without terminating this Agreement) in the following circumstances:
- Your requests for support are overly excessive or duplicative of prior requests for issues that have already been addressed by Cvent;
- Your requests relate to the general use of the Licensed Software that are addressed via Cvent’s training tools and resources or which a person, using reasonable efforts, can perform after completing Cvent’s training tools or resources; or
- You are abusive or offensive toward Cvent’s personnel.
8.5 Except as otherwise specified on the Proposal or other document provided to You by Cvent, Section 8.2, Section 8.3, Section 8.4 and Section 11.2 provides the entirety of each party’s termination rights under the Agreement.
8.6 Effect of Termination.Upon the termination of this Agreement for any reason, (a) any amounts owed to Cvent under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control. Except as expressly set forth herein, all amounts paid or payable under this Agreement are non-refundable to the maximum extent permitted by applicable law. You shall cease using the Licensed Software and any other components of the Licensed Software and shall destroy all copies of the same in any form. All disclaimers of warranties and limitations of liability shall survive any termination of the Agreement.
Sections of this Agreement which ought reasonably to survive will survive the termination or expiration of this Agreement.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
9.1 Cvent represents and warrants to You that Cvent is the owner of the Licensed Software being provided to You or otherwise has the right to grant to You the rights set forth in the Agreement.Cvent’s sole liability and Customer’s sole remedy with respect to a breach of the foregoing warranty shall be Cvent’s commercially reasonable efforts to rectify the non-conformity.
9.2 Customer represents and warrants that it is not and will not provide access to the Licensed Software to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section 8.2 shall be deemed a material breach of this Agreement and Cvent may immediately terminate this Agreement.
9.3 EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, CVENT MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND CONCERNING THE LICENSED SOFTWARE, CONTRACTED SERVICES, OR CVENT TECHNOLOGY. ACCORDINGLY, THE LICENSED SOFTWARE, CONTRACTED SERVICES, THE CVENT TECHNOLOGY AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY CVENT AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. CVENT AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CVENT DOES NOT WARRANT THAT THE LICENSED SOFTWARE, OR CONTRACTED SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
10. INDEMNITY BY CVENT.
10.1 If any action is instituted by a third party against Customer based upon a claim that the Licensed Software, as provided by Cvent, infringes a patent or copyright, Cvent shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer by a court of competent jurisdiction or or agreed to be paid in a written settlement agreement signed by Cvent arising out of such claim. Cvent may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Licensed Software, (b) replace or modify the Licensed Software so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Licensed Software and refund any amounts previously paid for the Licensed Software attributable to the remainder of the then-current term of this Agreement. Cvent shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer, or of (i) the use of the Licensed Software other than in accordance with the Agreement; (ii) use of the Licensed Software after it has been modified by Customer or a third party without Cvent’s prior written consent, or (iii) use of the Licensed Software in combination with any other service, software or process not provided by Cvent; (iv) any third party products, services, hardware, software or other materials; or (v) any obligation by You to defend or indemnify Cvent. This section sets forth the entire obligation of Cvent and the exclusive remedy of Customer against Cvent or any of its suppliers for any alleged infringement or adjudicated infringement or misappropriation of any patent, copyright or other intellectual property right or proprietary right by the Licensed Software.
10.2 Any party that is seeking to be indemnified under the Agreement (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”) specifying the nature of the Claim and such relief as is sought therein. The Indemnifying Party may, at its sole discretion, at any time upon written notice thereof to the Indemnified Party undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel. In such an event, the Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defense of any such action. The Indemnified Party shall have the right to employ separate counsel and participate in the defense thereof at its own expense. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
11 LIMITATION OF LIABILITY.
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR INDEMNIFY THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF DATA, LOST SAVINGS, COST OF COVER OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE MOBILE EVENT SOLUTION, THE EVENTCENTER, OR THE APP OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 IN NO EVENT WILL CVENT BE LIABILE OR INDEMNIFY YOU FOR:
11.2.1 ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES; OR
11.2.2 ANY CLAIMS OR DEMANDS OF THIRD PARTIES EXCEPT AS EXPRESSLY STATED IN THESE TERMS.
11.3 IN ANY CASE, CVENT’S ENTIRE LIABILITY AND INDEMNITY OBLIGATIONS UNDER ANY AND ALL PROVISIONS OF THE AGREEMENT (IN THE AGGREGATE FOR ALL CLAIMS) SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR USE OF THE MOBILE EVENT SOLUTION WITHIN THE PAST TWELVE (12) MONTHS OF THE TERM. IF NO FEE IS PAID TO CVENT, CVENT DOES NOT RETAIN ANY LIABILITY.
11.4 THESE LIMITATIONS OF LIABILITY WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT.
12. GENERAL PROVISIONS.
12.1 Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that Cvent may assign this Agreement without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or shares. This Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
12.2 Governing Law and Venue.
12.21 This Agreement will be governed by the laws of the province of British Columbia, Canada without regard to any conflict of law principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties agree to the sole and exclusive venue of the courts located in the province of British Columbia or the federal courts sitting in Vancouver, Canada for all matters arising with respect to the Services or this Agreement between the parties.
12.22 Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address notified by the other party from time to time. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via fax or email (with confirmation of receipt), or (d) sent by recognized courier service.
12.23 Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Any additional or conflicting terms contained in any purchase order, proposal or other document provided by You shall be deemed to be rejected by Cvent without need of further notice of objection, even if such document is acknowledged or accepted by Cvent, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding on Cvent. Only a writing signed by both parties may modify this Agreement.
12.24 Force Majeure. Neither party shall be declared in default by reason of any failure to comply with the terms of the Agreement, if such failure is due to ‘acts of God’, acts of government, fires, floods, epidemics, unavailability of materials, criminal acts, distributed denial of service, unavailability of third party communications facilities or services, unavailability of utilities or any cause or condition beyond their control, whether foreseeable or not.
12.25 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. 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. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.26 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
12.27 Fee Collection. Customer shall reimburse Cvent for all expenses (including reasonable attorneys’ fees) incurred by Cvent to collect any amount that is not paid when due.
12.28 No Third-Party Rights. The Agreement is not intended to, and does not confer any rights, benefits or remedies upon any person other than the parties.
12.29 Counterparts. This Agreement may be executed in counterparts and by facsimile or other means of electronic communication producing a printed copy, which taken together shall form one legal instrument.
12.30 CustomerList. You agree that Cvent may use Your organization’s name and logo, and may use images that are posted in the mobile marketplaces to identify You as a customer of Cvent on its website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as part of a list of Cvent’s customers for use and reference in Cvent’s corporate and marketing literature.