BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM "CUSTOMER" WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.Customer and MemberSuite, Inc. (“Attend.com”) hereby agree as follows:
1. Scope. These Terms of Service will apply to Customer's use of Attend.com's enterprise event management services, packaged professional services, content, products and offline components ("Services") ordered by Customer under an ordering document (including any online order) specifying the Services to be provided hereunder ("Order"). These Terms of Service and all Orders (collectively referred to as this "Agreement") represent the parties' entire understanding regarding the Services and will control over any different or additional terms of any purchase order or other non-Attend.com ordering document, and no terms included in any such purchase order or other non-Attend.com ordering document will apply to the Services. In the event of a conflict between these Terms of Service and an Order, the terms of the Order will control. All capitalized terms not defined herein will have the meanings attributed in the Order.
2. Right to Use the Services.
3.1 Promptly after the effective date of this Agreement, Customer will provide Attend.com with information, resources and assistance as necessary to enable Attend.com to customize and implement, as applicable, the Services for Customer’s purposes as described on the Order. If any such customization and/or implementation involve interfacing or connecting the Services to any third party systems, Customer will be responsible for ensuring that Attend.com has the right to connect to such third party systems, for obtaining the consent of the owner or controller of the third party system, for facilitating access to APIs and other interfaces and for notifying Attend.com in writing of any conditions or restrictions that apply to such connection or interface. Attend.com will use commercially reasonable efforts to set up during the on-boarding process any integrations described on the Order. Attend.com will not be responsible for any defect or failure in the Services due to errors in the Customer Data or third party system
3.2 Customer hereby grants Attend.com the nonexclusive right and license to use and display the Customer’s name, logo and similar indicia (“Customer Marks”) (a) to the extent any customization or implementation of the Services involve the incorporation of Customer Marks in furtherance of this Agreement and (b) on its website and marketing collateral identifying Customer as a customer of Attend.com. Attend.com obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and Customer retains all right, title and interest in the Customer Marks. All use of the Customer Marks by Attend.com will inure to Customer.
4. Usage Restrictions and Representations.
4.1 Customer will not, directly or indirectly: (a) use the Platform to send unsolicited or unwanted email, including without limitation sending email in violation of the CAN-SPAM Act or other anti-spam laws; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (including without limitation the Attend App, the "Software"); (c) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (d) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Attend.com; or (e) remove any proprietary notices or labels from the Services or Software. Customer will use the Services and Software only for enterprise management of its own events, and not for the events of third parties (unless the Customer is designated as an event planner under the Order) or for operation of a service bureau or timesharing service.
4.2 Customer will not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Attend.com's provision of the Services. Customer will be responsible for maintaining the security of its equipment and account access passwords. Customer represents and warrants that Customer will use the Services only in compliance applicable laws and regulations. Customer will be liable for all acts and omissions of its Users.
4.3 Attend.com may immediately suspend Customer's password, account, and access to the Services if (a) Customer fails to make payment due within thirty days after Attend.com has provided Customer with notice of such failure; or (b) Customer violates Sections 2, 4 or 10. Any suspension by Attend.com of the Services under the preceding sentence will not relieve Customer of its payment obligations under this Agreement.
4.4 Customer shall be allowed to send up to 500,000 emails per year from the Platform. This includes Form Invitations, Reminders, and General emails. Should customer need more emails, they will be available at the price of $500 per additional 100,000 emails.
5. Ownership; Customer Data.
5.1 Attend.com owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). Attend.com will be free to use, disclose, reproduce and otherwise exploit any and all suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software as Attend.com sees fit, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Attend.com.
5.2 Customer owns any data, information or material originated by Customer that Customer submits or provides in the course of using the Services ("Customer Data"). Attend.com has no ownership rights in or to Customer Data. Customer will be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Services. Except to the extent Customer or any Users make any Customer Data accessible to other users or the public through the Services, Customer Data will be deemed to be Customer Confidential Information pursuant to Section 10 below.
5.3 Customer represents and warrants that it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used or shared, as applicable, by Attend.com as part of the Services. While Attend.com takes security and privacy very seriously, Attend.com is not designed, equipped or intended to store or otherwise process any regulated or sensitive personally identifiable information, including, without limitation, social security numbers, financial information (with the exception of payment information which is processed by our third party payment processor) and/or any medical or health related information. Customer specifically acknowledges and agrees that Attend.com is not a HIPAA Business Associate, the Services are not HIPAA-compliant, and that Customer is not authorized to submit to Attend.com any "protected health information" that is subject to HIPAA. Customer will not upload or store any data or materials containing any such information described in this section
6. Billing and Payment.
6.1 Customer will pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Attend.com's income), even if such amounts are not listed on an Order. Customer will pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the partie
6.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection
7. Term and Termination
7.1 The initial term of this Agreement will commence as of the date set forth in the Order and, unless earlier terminated as set forth below, will remain in effect for a period of one (1) year. Thereafter, the term of this Agreement will automatically renew for successive periods of one (1) year each (collectively, the initial term along with any renewal periods and any other term or period identified on the Order, the "Term"); provided, however, that either party may terminate this Agreement as of the end of the initial term or any renewal term upon sixty (60) days’ notice prior to the end of the then relevant term. The terms and conditions, including pricing, during any renewal term will be the same as that during the immediately prior term unless Attend.com has given Customer written notice at least seventy-five (75) days prior to the end of such prior term, in which case the revised terms and conditions will be effective upon renewal. Notwithstanding the foregoing, the duration of the initial term, each renewal period and such notice periods may be modified under the Order.
7.2 All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions, confidentiality obligations, warranty disclaimers and limitations of liability.
7.3 In the event of a material breach by either party, the non-breaching party will have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If Attend.com terminates an Order for Customer's material breach, all fees set forth on such Order are immediately due and payable.
7.4 Upon any termination or expiration of an Order, Customer's right to access and use the Services covered by that Order will terminate. Notwithstanding the foregoing, at Customer's request if received within 30 days of termination of the Order, Attend.com will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Attend.com's possession. Customer acknowledges and agrees that Attend.com has no obligation to retain Customer Data and that Attend.com will have the right to irretrievably delete and destroy Customer Data after 30 days following the termination of this Agreement.
8. Representations, Disclaimer of Warranties, Indemnities.
8.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
8.2 Attend.com further represents and warrants to Customer that the Services materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Attend.com to Customer. Customer’s sole and exclusive remedy for breach of this representation and warranty will be limited to Attend.com correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 7.3 above
8.3 Attend.com will defend at its expense any claim, suit, action or proceeding (each, a "Claim") brought against Customer by a third party that the use of the Service as contemplated hereunder infringes the intellectual property rights of such third party, and Attend.com will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim or payable by Customer pursuant to a settlement agreement to which Attend.com agrees in writing in settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to Attend.com; (b) gives Attend.com sole control of the defense and settlement of the Claim (provided that Attend.com may not settle any Claim without Customer’s prior written consent unless it unconditionally releases Customer of all liability); and (c) provides to Attend.com, at Attend.com's cost, all reasonable assistance. If the Services become, or in Attend.com’s opinion are likely to become, the subject of an infringement claim, Attend.com may, at its option and expense, either (i) procure for Customer the right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing; or (iii) refund to Customer the portion of fees paid in advance by Customer for any unused portion of the then-current term of the Services, whereupon Attend.com may terminate this Agreement upon written notice to Customer. Notwithstanding the foregoing, Attend.com will have no obligation under this Section 8.3 or otherwise with respect to any infringement to the extent that it is based upon the use, operation or combination of the Services with software programs, data, equipment, materials or business processes not provided by Attend.com, if the Claim would have been avoided by the use of the Services without such software programs, data, equipment, materials, or business processes. This Section 8.2 represents the sole and exclusive remedy of Customer and the entire liability and obligation of Attend.com with respect to infringement.
8.4 Except for liability for which Attend.com is responsible as set forth in Section 8.3 above, Customer will defend at its expense any Claim brought against Attend.com by a third party or governmental entity arising from Customer’s use of the Services, and Customer will indemnify and hold harmless Attend.com from and against all costs (including reasonable attorneys’ fees) and damages incurred by Attend.com in any such Claim; provided, that Attend.com (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Attend.com’s prior wirtten consent unless it unconditionally releases Attend.com of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
8.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, Attend.com AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES AND SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. Attend.com AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Attend.com AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES AND/OR SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES AND/OR SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER Attend.com NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. Attend.com IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, Attend.com DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY Attend.com, THE SERVICES AND SOFTWARE ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS.
9. Limitation of Liability.EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS.
11. Statistical Information. Notwithstanding anything else in this Agreement or otherwise, Attend.com may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. Attend.com retains all intellectual property rights in such information.
12. Notices. Attend.com may give notice applicable to Attend.com's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in Attend.com's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in Attend.com's account information. If Customer has a dispute with Attend.com, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to Attend.com at 24498 Main Street, Santa Monica, CA 90405. Attn: Legal Dept.
13. GENERAL PROVISIONS
13.1 Any action, Claim, or dispute related to this Agreement will be governed by the laws of the State of California, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. The parties expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Los Angeles in the state of California. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. The section headings are provided merely for convenience and will not be given any legal import. No joint venture, partnership, employment, or agency relationship exists between Attend.com and Customer as a result of this Agreement or use of the Services.
13.2 This Agreement and all Order(s), represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature will be sufficient to bind the parties to the Terms of Service and such Order. Subject to the Order and Section 7.1 above, this Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.13.3 Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section will be void.