1. Definitions
Asused throughout these Standard Terms and Conditions, and elsewhere throughoutthe Agreement, the following terms shall have the following correspondingdefinitions.
a. “Admin Access” shall have the meaningset forth in Section 2(a)(ii) of Part Threeof the Agreement;
b. “Attendee” shall mean a personphysically present at an Event or remotely participating in an Event;
c. “Base App” shall mean the primary Eventologybranded App, excluding any Visual and Audio Content therein;
d. “Confidential Information” shall meanall information provided by a Disclosing Party to a Receiving Party, whetherorally or in writing, that is either: (i) designated, in writing, asconfidential; or (ii) reasonably should be understood to be confidential giventhe nature of the information and the circumstances of disclosure. Confidential Information of each Partyincludes the terms and conditions of this Agreement and all Statement of Works(including pricing), as well as business and marketing plans, technology andtechnical information, product plans and designs, and business processes ofDisclosing Party. However, Confidential Information does not include anyinformation that (i) is or becomes generally known to the public without breachof any obligation owed to the Disclosing Party, (ii) was known to the ReceivingParty prior to its disclosure by the Disclosing Party without breach of anyobligation owed to the Disclosing Party, (iii) is received from a third-partywithout breach of any obligation owed to the Disclosing Party or any otherParty, or (iv) was independently developed by the Receiving Party.
e. “Content” shall mean both: (i) Visualand Audio Content; and (ii) HTML and other code. (For the avoidance of doubt, an item maybe both Content and Confidential Information;the two are not mutually exclusive).
f. “DMCA” shall mean the Digital MillenniumCopyright Act, 17 U.S.C. Section 512.
g. “Developer Accounts” shall have themeaning set forth in Section 3(a)(i) of Part Threeof the Agreement.
h. “Disclosing Party” shall mean a Partydisclosing information to the other Party hereunder.
i. “Effective Date” shall have the meaning set forth in Section 1 of Part Three of the Agreement .
j. “End User” shall mean a person using theWhite Label App.
k. “End User Data” shall mean all information related to an End User,including both PII and non-PII information;
l. “Event” shall mean any event organizedor hosted by Licensee at the Location;
m. “Event Ticket Price” shall mean the costof a Ticket to attend an Event, if any.
n. “Eventology Content” shall mean andinclude both Eventology Marks and Eventology Materials.
o. “Eventology Elements” shall mean design elements(e.g., the Eventology logo), and wordelements (e.g., “powered by Eventology”).
p. “Eventology Marks” shall mean Eventology’strademarks, service marks and logos contained therein.
q. “Eventology Materials” shall meancontent on the Service which has been provided by Eventology, including withoutlimitation, the text, information, documents, descriptions, products, graphics,photos, sounds, videos, interactive features and services;
r. “Intellectual Property Rights” shallmean, generally, copyrighted or copyrightable materials, trademarks, tradenames, service marks, trade dress, logos, or other identifying marks, and otherproprietary identifiers, whether or not registered and/or capable of beingregistered, andsimilar rights of any type under the laws or regulations of any governmental,regulatory, or judicial authority, whether foreign or domestic. As applied to the Service, “IntellectualProperty Rights” includes all rights, title and interest in and to theServices, including any and all copyrightable materials or any other contentthereof which is or may be subject to any intellectual property rights underany applicable law (including any artwork, graphics, images, website templatesand widgets, literary work, source and object code, computer code (includinghtml), applications, audio, music, video and other media, designs, animations,interfaces, documentation, derivatives and versions thereof, the “look andfeel” of the Services, methods, products, algorithms, data, interactivefeatures and objects, advertising and acquisition tools and methods,inventions, trade secrets, logos, domains, customized URLs, trademarks, servicemarks, trade names and other proprietary identifiers, whether or not registeredand/or capable of being, and similar rights of any type under the laws orregulations of any governmental, regulatory, or judicial authority, whetherforeign or domestic.
s. “LicenseFees” shall mean the amounts paid by Licensee to Eventology inconsideration for Licensee’s access to, and use of, the Services, and the othervaluable consideration received by Licensee hereunder.
t. “LicenseeContent” shall mean and include both Licensee Marks and Licensee Materials.
u. “LicenseeMarks” shall mean Licensee’s trademarks, service marks and logos as setforth in Section 5 of Part Three ofthe Agreement.
v. “LicenseeMaterials” shall mean text, information, documents, descriptions, products,graphics, photos, sounds, videos, interactive features and services owned byLicensee.
w. “Location”shall mean the physical location at which shall mean Licensee conducts physicalevents as set forth in Section 5 of PartThree of the Agreement.
x. “Marks”means trademarks, service marks and logos.
y. “Merchandise”shall means goods sold on or through the White Label App.
z. “Messages” means text transmissions sentthrough the Service.
aa. “Messaging”means channels of communication integrated into the White Label App,including email, chat and other methods of communication between or among: (i) Licensee, (ii) EndUsers, and/or (iii) third parties approved by Licensee.
ab. “Non-Eventology Payment Processor” shall mean a third party taking paymentsin connection with Ticketing, or any other aspect of any Event.
ac. “Non-EventologyService” shall mean any third-party products or services.
ad. “PII”shall mean personally identifiable information under the laws of any applicablejurisdiction, including GDPR as and when applicable.
ae. “PrivacyPolicy” shall mean Eventology’s privacy policy, which is available at: https://fan.guru/privacy-policy.
af. “ProhibitedUse” shall have the meaning set forth in Section 2(g) below.
af. “ReceivingParty” shall mean a Party receiving information from the other Partyhereunder.
ag. “RefundPolicy” shall mean such policies as may be adopted by Licensee from time totime regarding how requests for refunds from End Users and/or Attendees shallbe handled (e.g., with respect tosale of Tickets, Subscriptions, or Merchandise);
ah. “Resultant Data” shall have the meaningset forth in Section 5(e) of the Agreement.
ai. “Revision”shall mean any change, revision, modification, update or upgrade to the BaseApp or any of the features thereof.
aj. “Service”shall mean: (i) the White Label App (and the features and functionalitywithin it), including any and all Revisions, and (ii) such additional Servicesas are specified in any Statements of Work, including Support Services;
ak. “SquareAccount” shall mean a merchant account with the payment processor known as“Square”, whose website as of the Effective Date is Squareup.com.
al. “Subscription”shall mean an arrangement whereby an End User agrees to pay a periodic fee (e.g. monthly or annually) in exchange for certain benefits (e.g., content delivered to, or accessible to, such End User).
am. “SupportServices” shall mean such additionalservices, if any, provided by Eventology to Licensee as specified in a Statementof Work.
an. “TaxAuthorities” means a governmental agency orentity with the power to assess Taxes.
ao. “Taxes”shall mean sales, use, amusement, value added, consumption, excise and othertaxes, duties, levies and charges applicable under governing law (including asassessed or otherwise determined by relevant Tax Authorities).
ap. “TaxTools” shall mean any tools that may be made available through the White LabelApp with respect to the sale of Tickets, Content, Subscriptions, orMerchandise.
aq. “Term”shall have the meaning set forth in Section 16(a).
ar. “Ticket” shallmean a ticket granting to the holder the right to attend an Event.
as. “TicketPurchase” shall mean the purchase of one or more Tickets through the WhiteLabel App.
at. “TicketPurchaser” shall mean a person who buys one or more Tickets.
au. “Ticketing”shall mean the functionality enabling the sale of Tickets.
av. “TicketingFee” shall mean the amount or percentage charged to enabling the sale ofTickets.
aw. “UserSubmissions” shall mean Visual and/or Audio Content provided by an End Userthrough the App other than for Messaging purposes.
ax. “Visualand/or Audio Content” shall mean information, names, images, pictures,logos, documents, materials, information, photographs, animation, video, audio,music, text and applets contained therein.
ay. “WhiteLabel App” shall mean a private label mobile application for iOS andAndroid built by Eventology for NLBM, with features and functionality asdescribed in this Agreement.
az. “WhiteLabel End User Data” shall mean End User Data obtained from End Users usingthe White Label App.
2. Ownership and Restrictions.
a. Ownership of The Service and the EventologyContent. Eventology shall maintain all rights of ownership and be the soleowner of the Service, all Eventology Content, and all other software, code,processes, and/or system functionality of any kind developed by Eventology forpurposes of or related to this Agreement, and other than the use rights as setforth herein, Licensee shall have no right, title, or interest of any kind inthe Service, code, processes, and/or system functionality, or the EventologyContent unless Eventology agrees in writing to grant Licensee such interest,title, and/or ownership for separately stated valuable consideration, asexpressly specified in such writing. Any permission Eventology may provide tothe Licensee to distribute the Eventology App (e.g., through any online applications store, or by any other meansor method, either electronic or non-electronic), does not confer upon Licenseeany rights of ownership of any Intellectual Property Rights owned by Eventology.
b. Ownership of LicenseeContent. As between the Parties, Licensee shall own (a) all Content that itindependently develops or owns prior to the Effective Date, and (b) anythird-party Content licensed by Licensee from third parties and supplied byLicensee to Eventology in connection with this Agreement. Eventologyshall have no rights therein other than the limited license to use LicenseeContent to provide services pursuant to and in accordance with this Agreement.
c. Ownership of End User Data. Eventology shall own all rights and interests to use theBase App End User Data and the White Label End User Data. Eventologyhereby grants Licensee an unlimited, worldwide, royalty-free, fully paid up,perpetual right and license to use the White Label End User Data for purposesconsistent with the Terms of Service of the White Label App and Applicable Law,including formarketing, selling Merchandise, Subscriptions, and Tickets, and fan engagement. Licenseerepresents and warrants that its use of White Label End User Data shall beconsistent with the Terms of Service of the White Label App and Applicable Law.
d. End User Consent to Use End User Data andDisclaimer of Warranty. Licensee represents and warrants that it shall haveobtained, either directly or through a third party, all rights, power,authority, and consents necessary from any End User to use End User Data in themanner in which it is used by Licensee. Eventology is not responsible for theinput or accuracy of End User Data and disclaims any warranty regarding theinput or accuracy of End User Data. Licensee understands and acknowledgesthat Eventology can only provide data analysis based on data as input by EndUsers into their profiles on the White Label App and/or the Base App.
e. Resultant Data Defined. “Resultant Data” means data andinformation related to End User’s use of the White Label App or the Base Appthat is used in an aggregated and anonymized manner, including to compilestatistical and performance information related to the provision and operationof the Services in connection with the Event.
f. Ownership of Resultant Data.Notwithstanding anything to the contrary in this Agreement, Eventology shallown all Resultant Data. Eventology hereby grants the Licensee an unlimited,worldwide, royalty-free, fully paid up, perpetual right and license to make useof such Resultant Data that is provided to the Licensee, via the Eventology Appor as integrated into any Event reports prepared and provided by Eventology.
g. Prohibited Uses. Licensee agrees not to, directly or indirectly, and shall notpermit any third-party to do any of the following at any time: (i) license,redistribute, sell, lease, lend or rent the Service; (ii) disassemble, reverseengineer, decompile or decrypt or attempt to derive the source code, objectcode or underlying structure, ideas, know-how or algorithms relevant to theService or any documentation or data related to the Service; (iii) copy,modify, improve or create derivative works or features or a competitive productto the Service or any part thereof; (iv) circumvent, disable or otherwiseinterfere with security-related features of the Service or features thatprevent or restrict use or copying of any content or that enforce limitationson use of the Service; (v) remove, alter or obscure any proprietary notice oridentification, including copyright, trademark, patent or other notices,contained in or displayed on or via the Service; (vi) use any communicationssystems provided by the Service to send unauthorized and/or unsolicitedcommercial communications; (vii) use the Service to violate any applicablelaws, rules or regulations, or for any unlawful, harmful, irresponsible orinappropriate purpose, or in any manner that breaches this Agreement(subsections (i) through (vii) of this Section 2(g) each a Prohibited Use. In addition, Licensee agrees not to performor attempt to perform any performance or penetration testing, including, butnot limited to Approved Scanning Vendors (ASV), Black box, Grey box, White boxor any of their blend or combination, without prior written consent of Eventology,and if and when such consent is granted, Licensee agrees to (x) to shareimmediately with Eventology the full report and findings of any such permittedtests, and (y) not to publish the test results, make them available publicly orshare them with third parties without Eventology’s express prior writtenconsent.
3. Licensee’s Fees and Payments.
a. Fees. In consideration for its use of the Service and the rights grantedhereunder, Licensee shall pay to Eventology the Fees set forth in eachapplicable Statement of Work, in accordance with the payment schedule set forththerein.
b. Payment Currency. All sales, fees,charges, and funds are payable in U.S. Dollars, or such other foreigncurrencies as may be agreed by the Parties, in a Statement of Work.
c. Non-payment.In the event that Licensee fails to pay any amount owed pursuant to the termsherein to Eventology when due, Eventology may elect to provide written noticeto Licensee of such failure to timely pay, and if Licensee does not cure bymaking full payment within five (5) days following such notice, then, withoutlimiting any other right or remedy Eventology may have (including setoffagainst any amounts that may be owed by Eventology to Licensee), Eventology maysuspend, block, or terminate Licensee’s access to the Service (including, forthe avoidance of doubt, the White Label).
d. RevenueShares. Any sharing of revenuesshall be solely as expressly set forth in a Statement of Work.
e. Each Party Responsible for its Own Costs. Except as expressly set forth herein, eachParty shall be responsible for its own costs with respect to all matterspertaining to this Agreement.
4. Payment Processing
- Event Ticket Fees. The White Label App includes Ticketing functionality. In the event that Licensee elects to use Eventology’s Ticketing, Licensee shall notify Eventology, and may thereafter, during the Term, use Eventology’s Ticketing functionality, paying to Eventology’s the then-applicable Ticket Fee with respect to the sale of each Ticket, which Ticket Fee Licensee may elect to pass on to Ticket Purchasers. For the avoidance of doubt, that as between the Parties, Licensee shall have the exclusive right to set the Event Ticket Price for each Event. For the further avoidance of doubt, Eventology does not and will not provide to Licensee banking, deposit taking, stored value, insurance or any other financial services.
- Non-Eventology Payment Processing. In the event that the Parties agree that Licensee may sell Tickets outside of the White Label App through any Non-Eventology Payment Processor, Licensee and any and all Ticket Purchasers transacting via any Non-Eventology Payment Processor shall be bound by the applicable terms of use governing such third party ticketing service. With respect to any such purchases, Licensee shall be responsible for collecting all Event Ticket Fees from such Ticket Purchasers through the applicable third-party service and Eventology accepts no (and disclaims all) obligation or liability with respect to such collection or the performance or nonperformance of such third-party service.
- Confirmation. Upon receipt of a credit card authorization or other payment verification with respect to each individual Ticket Purchase, Eventology will generate a confirmation message in the White Label App and issue a confirmation email to the Ticket Purchaser. As between the Parties, it shall be the exclusive right and obligation of Licensee to accept, honor, and fulfill all Tickets sold through the Service, and it is Licensee’s responsibility to ensure that Attendees meet age or any other restrictions applicable to an Event.
- Refunds.
i. It isLicensee’s responsibility to communicate Licensee’s Refund Policy and to issuerefunds to Ticket Purchasers in accordance with the Refund Policy.
ii. Eventologyshall include and provide through the White Label App the Refund Policy asprovided by Licensee from time to time.
iii. Eventologyshall reasonably cooperate with Licensee to facilitate Refunds.
iv. Allcommunications or disputes regarding refunds are between Licensee and theTicket Purchasers, End Users and/or Attendees and in no event shall Eventologybe responsible or liable for refunds, errors in issuing refunds, or lack ofrefunds.
5. Taxes.
a. Licensee is solely responsible for determiningwhich Taxes, if any, apply to (i) Licensee’s use of the Service; (ii) TicketPurchases; and (iii) any and all other sales Licensee may make through theService. Licensee agrees that it shall be Licensee’s sole responsibility to,and that Licensee will, collect and remit the correct amounts of all applicableTaxes to the appropriate Tax Authorities. Eventology does not represent,warrant or guarantee that any invoicing tools or Tax Tools to the extentavailable through the Service, will meet all tax requirements that may beapplicable to Licensee or that such Tax Tools will result in Licensee’s collectionor remittance of all applicable Taxes, the applicability an amount of whichTaxes may vary based upon the nature of Licensee’s event, the nature ofLicensee’s tax status (individual, entity, business, consumer, etc.), thejurisdictions in which Licensee conducts business, the location of Events, thelocation of Licensee’s End Users, credits and deductions for which Licensee mayqualify and other factors, and Licensee hereby releases Eventology from any andall liability with respect to Licensee’s use of any Tax Tools. No Tax Tools, ifprovided, should be considered legal or tax advice. In the event that a TaxAuthority requires Eventology to pay any Taxes attributable to Licensee’s useof the Service or to sales Licensee makes using the Service, Licensee agrees topromptly and fully reimburse Eventology for such Taxes upon demand, togetherwith any and all costs, penalties, interest and expenses related thereto.
b. Notwithstanding the preceding paragraph, Eventology may, in certainjurisdictions, be required to collect and remit Taxes on Eventology ServiceFees (the “Eventology Fees”) to the Tax Authorities. In such jurisdictions, Eventologywill collect from Licensee Taxes on Eventology Fees, and Licensee agrees to paysuch Taxes. Eventology may, at its sole election, invoice Licensee for Taxes onEventology Fees or withhold (from amounts it would otherwise pay to Licensee)the amount of Taxes on Eventology Fees. With the exception of Taxes on EventologyFees that Eventology collects from Licensee pursuant to this paragraph,Licensee remains responsible for collecting and remitting the correct amount ofany Taxes that apply to Licensee’s use of the Service and to sales Licenseemakes using the Service. Notwithstandingthe foregoing, nothing in this Agreement shall require Licensee to pay amountsowing by Eventology as federal, state or local income tax.
c. Eventologyreserves the right to withhold the payment of any amounts owed to Licenseehereunder and dispose of them as required by applicable local, state,provincial, national or other law, rule, regulation, judgment or order, in eachcase as determined by Eventology, or to seek later payment from Licensee of anyamounts on taxes uncollected and unremitted, related to Licensee’sevents.
6, ThirdParty Sources and Content.
a. Licensee may request and Eventology may agree tointegrate third-party data or functionality into the White Label App or tootherwise permit certain Non-Eventology Services to interoperate with theService. Any exchange of data betweenLicensee and any Non-Eventology Service, is solely between Licensee and theprovider of such Non-Eventology Service. Eventology does not warrant orsupport, and Eventology shall not be liable to Licensee or to the End Users forany Non-Eventology Service.
b. Non-EventologyServices and Licensee’s Data. If Licensee chooses to use aNon-Eventology Service with the Eventology Service, Licensee grants Eventologypermission to allow the Non-Eventology Service to access Licensee’s data asrequired for the interoperation of such Non-Eventology Service with the EventologyService. Eventology is not responsible for any disclosure, modification ordeletion of Licensee’s data resulting from access by such Non-EventologyService or its provider.
c. Interoperationwith Non-Eventology Services. The Services may contain features designed tointeroperate with Non-Eventology Services. To take advantage of and utilizesuch features, Licensee may be required to obtain access to such Non-EventologyServices from their respective providers, and may be required to grant Eventologyaccess to Licensee’s account(s) for such Non-Eventology Services, to enable therequested interoperation. Eventology cannot guarantee the continuedinteroperation with any particular Non-Eventology Service (e.g. if the provider of a Non-Eventology Service ceases to make theNon-Eventology Services available for interoperation with the Service in amanner acceptable to Eventology).
d. Licensee acknowledges and agrees that regardless ofthe manner in which Non-Eventology Services may be offered to Licensee, Eventologymerely acts as an intermediary platform between Licensee and such Non-EventologyServices, and neither in any way endorses any such Non-Eventology Services, norshall be in any way responsible or liable to Licensee or to the End Users withrespect thereto. Eventology will not be a party to, or in any way beresponsible for monitoring, any interaction or transaction between Licensee orEnd Users and any such Non-Eventology Services.
e. Any and all use of any Non-Eventology Service shallbe done at the sole risk and responsibility of Licensee or its End Users.
7. Messages.
The Service may permit Licenseeand/or End Users to send and receive Messages to or from a Non-EventologyService. Licensee and/or its End Users are solely responsible for Licensee’sMessages and the consequences of sending them. Licensee grants Eventology aworldwide, revocable, non-exclusive license to use, store and reproduceLicensee’s Messages solely for the limited purpose of facilitating sending themto Licensee’s designated recipients (and Eventology may also use the tools orservices of third-party service providers to facilitate the sending of Messagesto Licensee’s designated recipients). Licensee represents and warrants thatLicensee owns or has the necessary rights and permissions to use all of theIntellectual Property Rights in and to Licensee’s Messages, and to grant Eventologya limited, revocable, non-exclusive, royalty-free, license in such IntellectualProperty Rights solely for the purpose detailed in this Section 12. Licensee orits respective End Users retain all ownership rights in Licensee’s Messages.Licensee acknowledges and agrees that the provisions of Section 13 (UserSubmissions) below shall also apply to Messages that Licensee send via theService.
8. User Submissions.
a. TheService may permit the hosting, sharing, posting and publishing of UserSubmissions. As between the Parties, Licensee shall be solely responsible forall User Submissions and their consequences. Eventology shall include terms of use for the White Label App that shallinclude language making clear that each End User agrees to be responsible forany User Submissions made by such End User, and to indemnify Licensee and Eventologyin connection therewith. Eventology has complete discretionas to whether to publish User Submissions in the Base App. Without diminishing the foregoing, Eventologyreserves the right without notice to Licensee, to monitor, and delete or removeany and all User Submissions at any time which Eventology believes to be inviolation of Section 8(f) (Prohibited Content).
a. Ownership. Licenseerepresents and warrants that Licensee owns or has the necessary rights andpermissions to use and authorize Eventology to use all Intellectual PropertyRights in and to Licensee’s User Submissions, solely for the purpose ofproviding the Service to Licensee and End Users. Licensee retains all of Licensee’sownership rights in Licensee’s User Submissions
b. Licenseto User Submissions. Subject tothis Agreement and the terms of Eventology’s Privacy Policy, by submitting theUser Submissions, Licensee hereby grants Eventology a worldwide, irrevocable,non-exclusive, royalty-free, license to use, reproduce, distribute, preparederivative works of, display and perform the User Submissions only for: (i) theprovision of the Service; and (ii) for marketing the Apps..
c. Responsibilityfor User Submissions. Licensee understands and acknowledges that theauthor of each User Submission is solely responsible for its content and that Eventologyhas no responsibility for or liability related to any User Submission.
d. Disclosure. Eventologyreserves the right to access, read, preserve and disclose any User Submissionor any other information that Eventology obtains in connection with the Serviceas Eventology reasonably believe is necessary to: (i) satisfy any applicablelaw, regulation, legal process, subpoena or governmental request; (ii) enforcethis Agreement, including investigation of potential violations of it; (iii)detect, prevent or otherwise address fraud, security or technical issues; (iv)respond to user support requests; or (v) protect the rights, property or safetyof Eventology, our users or the public.
e. ProhibitedContent. Each Party agrees that it will not send, display,post, submit, publish or transmit through the White Label App any Content that:(i) is unfair or deceptive under the consumer protection laws of anyjurisdiction; (ii) is copyrighted, protected by trade secret or otherwisesubject to third-party proprietary rights, including privacy and publicityrights, unless Licensee are the owner of such rights; (iii) creates a risk to aperson’s safety or health, creates a risk to public safety or health,compromises national security, or interferes with an investigation by lawenforcement; (iv) impersonates another person; (v) promotes illegal drugs,violates export control laws, relates to illegal gambling, or illegal armstrafficking; (vi) is unlawful, defamatory, libelous, threatening, pornographic,harassing, hateful, racially or ethnically offensive, or encourages conductthat would be considered a criminal offense, gives rise to civil liability,violates any law, or is otherwise dishonest, inaccurate, malicious orfraudulent; (vii) involves theft or terrorism; (viii) constitutes anunauthorized commercial communication; (ix) contains the contact information orany personally identifiable information of any third-party unless Licensee havefirst obtained the express and informed consent of said third-party to includetheir contact information and/or personal information; and/or (x) breaches thisAgreement.
9. Compliance with Laws.
a. Eventologyagrees that Eventology will comply with all applicable laws and regulations,including but not limited to privacy laws, antitrust laws, anti-spam laws,consumer protection laws and financial transaction laws, in connection with theprovision of the Service, and Eventology’s Communications with End Users, and Eventology’sperformance under this Agreement.
b. Licenseeagrees that Licensee will comply with all applicable laws and regulations,including but not limited to privacy laws, antitrust laws, anti-spam laws,consumer protection laws and financial transaction laws, in connection withLicensee’s use of the Service, Licensee’s communications and transactions withAttendees and End Users, and Licensee’s performance under this Agreement.
c. Licensee understands and acknowledges that Eventologywill comply with law enforcement authorities and may provide them with any andall information Licensee submits to Eventology to assist in any investigationor prosecution they may conduct. If Eventology is requested to provide suchinformation or assistance, Eventology will notify Licensee in writing withinthree (3) business days of receiving the request, unless such notification isprohibited.
d. Licensee represent that Licensee are not, andwill not make the Services available to, the resident of any embargoed countryor a prohibited person under any export control or anti-terrorism law,regulation or list. Licensee agrees to comply fully with all applicable exportlaws and regulations to ensure that neither the Service nor any technical datarelated thereto are exported or re-exported directly or indirectly in violationof, or used for any purposes prohibited by, such laws and regulations.
10. IntellectualProperty Rights.
a. Licensee’sIntellectual Property Rights. Eventologyunderstands and agrees that Licensee’s Intellectual Property Rights and theLicensee Content are the property of Licensee and/or its third party licensorsand may be protected by applicable copyright or other intellectual propertylaws and treaties. Nothing in thisAgreement will directly or indirectly be construed to assign or grant Eventologyany right of ownership, title or interest in Licensee’s Marks, or anyIntellectual Property Rights relating thereto.
b. Eventology’sIntellectual Property Rights. Licensee understands and agrees that the Eventology’s IntellectualProperty Rights and the Eventology Content are the property of Eventologyand/or its licensors and may be protected by applicable copyright or otherintellectual property laws and treaties. Licensee acknowledges and agrees that Eventology and its licensorsretain all title, ownership rights and Intellectual Property Rights in and tothe Service, and any or all Revisions, related documentation and marketingmaterials. Eventology reserves all rights not expressly granted herein to theService. Nothing in this Agreement willdirectly or indirectly be construed to assign or grant Licensee any right ofownership, title or interest in the Services, or any Intellectual PropertyRights relating thereto.
c. Trademarksand Copyrights. Each Party (“First Party”) grants to the other Party(“Second Party”) a non-exclusive, perpetual, worldwide license to sublicenseand/or otherwise use First Party’s Marks provided that any and all such use ofsuch Marks is solely for the purposes of fulfilling Second Party’s obligationsunder this Agreement and/or as authorized hereunder. .
d. Useof Content. The Eventology Content is provided to Licensee “asis” for Licensee’s use solely as permitted hereunder.
e. Licensee’sContent.
Licenseeaffirms that:
i. Licensee either (x) owns all rights in andto Licensee’s Content or (y) otherwise has (and will continue to have) the fullpower, title, licenses, consents and authority necessary to legally access,import, copy, use, publish, transfer or license Licensee’s Content;
ii. Licensee has (and will maintain) the fullpower, title, licenses, consents and authority to allow the Services to accessany websites, web pages and/or other online services to which Licensee directs Eventologyfor the purpose of accessing, importing, copying, displaying, uploading,transmitting and/or otherwise using, Licensee’s Content;
iii.Licensee’s Content is (and will continue to be) true, current, accurate,non-infringing upon any third-party rights, and in no way unlawful for Licenseeto upload, import, copy, possess, post, transmit, display or otherwise use, ineach jurisdiction in which Licensee’s End Users reside, or for Eventologyand/or Licensee’s End Users to access, import, copy, upload, use or possess inconnection with the Services;
iv. Licensee has obtained all consents andpermissions required under all applicable laws, regarding the posting,transmission and publication of any personal information and/or image orlikeness of any person, entity or property which is part of Licensee’s Content,and Licensee will adhere to all laws applicable thereto.
11. Copyright Policy.
a. Removalof Content. It is the policy of Eventology to respect the legitimate rightsof copyright owners, and Eventology will respond to clear notices of allegedcopyright infringement in accordance with the procedures set forth in the DMCA.
12. Privacy and Information Security.
a. Eventologyshall handle Licensee’s data and personal information of Attendees that Eventologymay collect or obtain in connection with the Service in accordance withapplicable law and the Privacy Policy. Licensee agrees not to handle End User Data in a manner inconsistent withthe Privacy Policy. Licensee acknowledges and agrees that Eventology mayretain, use and process personal information of Attendees, in accordance with Eventology’sPrivacy Policy, during and after the term of this Agreement. Eventology employsreasonable systems and processes, in accordance with industry standards, toprotect Licensee’s data.
b. In theevent that Eventology discovers any breaches of, or unauthorized access to theWhite Label App, or Licensee’s data, Eventology shall use reasonable efforts toimmediately terminate the unauthorized access and promptly provide notice toLicensee that a breach has occurred. To the extent required under applicablelaw and subject to the provisions thereof, Eventology shall provide any and allnotices to third parties as required by law in the event of any such breach,including but not limited to notices of data breaches to affected thirdparties.
c. For thepurposes of EU data protection laws, Licensee and Eventology agree that theterms set forth in Eventology's Data Processing Addendum, attached hereto,shall control.
13. Limited Warrantyand Disclaimers.
a. EVENTOLOGY MAKES NOREPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY,TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE TO LICENSEE OR TO ANY OF ITSEND USERS AND ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY ORREPRESENTATION AS TO THE COMPLETENESS, RELIABILITY, USEFULNESS ORAPPROPRIATENESS OF THE SERVICE, OR CONTENT OR PRODUCTS DISTRIBUTED OR MADEAVAILABLE BY THIRD PARTIES THROUGH THE SERVICE.
b. TO THE EXTENT PERMITTED BY LAW,THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUTWARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUTLIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BYSTATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EVENTOLOGY DOES NOTWARRANT THAT THE SERVICE WILL BE CONTINUOUS OR UNINTERRUPTED OR THAT IT WILLMEET LICENSEE’S OR END USERS’ REQUIREMENTS.
c. EVENTOLOGY MAKES NO WARRANTY AS TOTHE RESULTS THAT MAY BE OBTAINED FROM LICENSEE’S OR END USERS’ USE OF THESERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINEDTHROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
d. TO THE EXTENT PERMITTED BY LAW,ANY DISPUTE BETWEEN LICENSEE AND ANY END USER IS BETWEEN LICENSEE AND SUCH ENDUSER. LICENSEE AGREES THAT EVENTOLOGY ISNOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH ADISPUTE OR THE SERVICE.
e. LICENSEE ACKNOWLEDGES THAT EVENTOLOGYDOES NOT CONTROL CONTENT, INFORMATION, MATERIALS, PRODUCTS OR SERVICES OFFEREDBY ADVERTISERS, THIRD PARTIES OR END USERS ON OR THROUGH THE SERVICE,INCLUDING, BUT NOT LIMITED TO, INFORMATION, PRODUCTS, OR SERVICES PROVIDED BYLICENSE TO EVENTOLOGY FROM THIRD PARTIES.
f. EVENTOLOGY MAKES NO WARRANTYREGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE ORANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION,WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM EVENTOLOGY OR THROUGH THESERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
g. Applicablelaw may not allow the exclusion of certain warranties, so to that extent, suchexclusions may not apply.
14. Limitation ofLiability.
a. NEITHER PARTY IS OR SHALL BE LIABLE TO THE OTHEROR ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL,PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROMTHIS AGREEMENT. OTHER THAN WITH RESPECT TO INDEMNIFICATION, EACH PARTY'SLIABILITY FOR ALL CLAIMS HEREUNDER SHALL NOT EXCEED ONE HUNDRED THOUSANDDOLLARS US ($100,000). ANY CAUSE OFACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1)YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION ISPERMANENTLY BARRED.
b. OTHER THAN FOR BREACH OFSECTIONS 4(B), 6, 7, 19, and 20, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ANDLOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTFROM USE OF OR INABILITY TO USE THE SERVICE, SHALL NOT IN ANY CIRCUMSTANCES EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS, IF ANY,ACTUALLY PAID AS FEES BY LICENSEE TO EVENTOLOGY FOR USING THE SERVICE WITHRESPECT TO THE TWELVE (12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
15. Indemnification.
a. EachParty (the Indemnifying Party) hereby agree to protect, defend, indemnify andhold harmless the other Party (the Indemnified Party), and the IndemnifiedParty’s affiliates, co-promoters (if any), officers, directors, shareholders,members, agents and employees from and against any and all third Party claims,demands, damages, losses or expenses, of any nature whatsoever, including courtcosts and reasonable attorneys' fees, (collectively, Claims) arising directlyor indirectly from or out of any breach by the Indemnifying Party or itsaffiliates, officers, directors, shareholders, members, agents, subcontractors,and employees of any of its representations or warranties hereunder, or fromsuch persons’ gross negligence or willful misconduct, except to the extentattributable to the negligence or willful misconduct of the IndemnifiedParty.
b. Eventology is not responsible for the conductor legality of the Events or for the legality of Licensee’s Content. Licenseeagrees to defend, indemnify and hold harmless Eventology and Eventology’saffiliates, and each of their respectiveofficers, directors, employees, agents, consultants, successors and assignsfrom and against any and all claims, damages, obligations, losses, liabilities,costs and expenses (including but not limited to attorney’s fees) arising from:(i) Licensee’s Content, any User Submission, Messages or other content provided by Licensee or any of Licensee’sofficers, directors, employees or agents, or by End Users; (ii) Licensee’s orEnd Users’ use or misuse of the Service (iii)any refunds owed or claimed to be owed to Attendees or End Users; (iv)Licensee’s failure to pay or withhold any taxes or other fees required byapplicable law; (v) the Events; (vi)Licensee’s violation of any third-party right, including without limitation anyIntellectual Property Right or privacy right, or (vii) Licensee’s violation ofany applicable law or regulation.
b. AnIndemnified Party must give prompt written notice to the Indemnifying Party;provided, however, that failure to give prompt notice will not relieve theIndemnifying Party of any liability hereunder (except to the extent theIndemnifying Party has suffered actual material prejudice by suchfailure). The Indemnifying Party and the Indemnified Party willreasonably cooperate in the defense or prosecution of any third partyclaims. The Indemnified Party shall havethe right to defense and control of any matter subject to indemnificationhereunder, utilizing counsel reasonably acceptable to the Indemnifying Party,in which event the Indemnifying Party will assist and cooperate with theIndemnified Party in asserting any available defenses. The Indemnifying Party may participate at its own cost insuch action. For avoidance of doubt, thisIndemnification section shall survive anytermination of this Agreement.
16. Proprietary andConfidential Information.
a. During the term of this Agreement,either Party may receive Confidential Information from the other Party.
b. With respect to any Confidential Information,the Receiving Party shall use the same degree of care that it uses to protectthe confidentiality of its own confidential information of like kind (but notless than reasonable care). The Receiving Party shall (i) not to use anyConfidential Information of the Disclosing Party for any purpose outside thescope of this Agreement, and (ii) except as otherwise authorized by the DisclosingParty in writing, limit the access to Confidential Information of theDisclosing Party to those of its and its affiliates’ employees and contractorswho need that access for purposes of performing the Services under thisAgreement and who have entered into confidentiality agreements with theReceiving Party containing protections no less stringent than the provisionsrelated to Confidential Information herein.
17. Data Security. Without limitation of any other obligation for Eventologyherein, Eventology agrees that it will maintain appropriate technical andorganizational measures to comply with industry practices and all applicablelaws, rules, and regulations with respect to its use, handling, security, andstorage of any information stored or accessed by Eventology in performing theservices of the Agreement that pertain to or identify an individual, such as name, postaladdress, email or IP address, facsimile orphone number, financial data, and privateaccount and password information.
18. Contest and SweepstakesLaws.Licensee shall be responsible for ensuring that any and all contests,sweepstakes or other prize giveaways occurring in connection with any of theEvents is fully compliant with all applicable laws and regulations applicablethereto.
19. Modifications to Eventology’s Standard Termsand Conditions. Licensee understands and agreesthat Eventology may revise and update these Standard Terms and Conditions fromtime to time, provided, however, that Eventology may not modify Sections 12through 17 hereof other than by written amendment signed by Eventology andLicensee.
