Last updated: November 13, 2018
By executing an Order Form (as defined below) or by accessing the Mobile Event Solution, You agree to comply with and to be bound by these Terms, including the policies and guidelines linked to (by way of the provided URLs) from these Terms. If You do not understand or agree with these Terms, please do not use the Mobile Event Solution. Cvent may amend these Terms at any time in its sole discretion, effective upon posting the amended Terms at http://www.crowdcompass.com/terms-of-use/ where the prior version of the Terms was posted, or by communicating these changes through any written contact method Cvent has established with You. You may not access the Mobile Event Solution if You are a direct competitor of Cvent, except with Cvent’s prior written consent.
1. ORDER FORM
1.1 These Terms are incorporated by reference into each order form, partnership form, purchase order, service order, service questionnaire or other similar document executed by You and Cvent (each "Order Form"), pursuant to which You receive the right to access and use the Mobile Event Solution, including the EventCenter and the App, as upgraded from time to time, for the number of events specified on the Order Form.
1.2 These Terms and the Order Form together comprise a binding written agreement between You and Cvent, effective as of the date of mutual execution of the Order Form by You and Cvent (the "Agreement").
1.3 In the event of any conflict between the provisions contained in an Order Form and these Terms, the provisions in the Order Form shall control (provided, however, that the fact that a provision appears in an Order Form but not these Terms, or in these Terms but not the applicable Order Form, shall not be deemed to be a conflict for purposes of this sentence).
2.1 The term of the Agreement ("Term") shall be the period set forth on the applicable Order Form. If the Term spans several years and the Order Form specifies annual fees, then fees are due in each year of the Order Form ("Contract Year") or as otherwise specified.
2.2 The Order Form 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 Order Form, unless You provide timely notice of nonrenewal as specified in the applicable Order Form.
Upon Your acceptance of the Agreement, Cvent will provide You with login access to the EventCenter for the Term of the Agreement. Access to the EventCenter includes entering and updating content for Your event(s), pushing notifications to, and aggregating usage metrics from the App for Your event(s).
3.2 Customer Content; Mobile Platform Requirements.
a) All event data, materials and content ("Content") required for the App to operate properly must be supplied by You through the EventCenter or another App interface provided by Cvent currently or in the future. Failure to provide all Content required for successful operation of the App does not invalidate the Agreement or Your obligation to pay for the Mobile Event Solution. Cvent will provide You with documents and templates listing the type and format of the information needed to upload Content into the Event Center. Content may also include information or materials which You obtain from third party social networking sites and cause to be presented through the App.
b) You represent and warrant that:
i. all Content is correct and current, is owned by You or You have the right to grant the license set forth below in these Terms;
ii. provision and/or use of Content hereunder shall not violate or infringe the intellectual property, privacy or publicity rights of any third party; and
iii. all placements of Content have been approved for Cvent's use.
c) You further represent and warrant that 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.
d) 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 Content (including copyright, trademark, patent, publicity or other rights) for Cvent to provide the Mobile Event Solution and the right to disclose the Content to third-party service providers to operate the Mobile Event Solution.
3.2.2 Mobile Platforms.
a) Use of the Mobile Event Solution 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:
i. You, Your employees and any agents acting on Your behalf shall abide at all times by such rules and procedures and any changes thereto;
ii. Cvent has no control over such rules and procedures, and cannot be responsible for ensuring performance or availability of any Mobile Marketplace;
iii. 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
iv. 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:
i. 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
ii. not to make use of push notifications in a manner which is excessive, as may be determined by the applicable Mobile Marketplace.
3.2.3 Build Process and Minimum Timelines. You will be assigned a Project Manager shortly after submission of Your signed Order Form. The Project Manager will collaborate with You to schedule delivery dates for You to provide event information, graphics and other Content 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 Order Form spans multiple events, You shall be responsible for notifying Your Project Manager 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 Content 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 Content before, during and after publication.
3.2.4 Review and Submission.
a) All Content must be submitted through the EventCenter, and, unless otherwise specified as an additional Service in Your Order Form, 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:
i. Engage Cvent to publish your event(s) in the Mobile Marketplace under Cvent’s container app – AttendeeHub™. 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.
ii. 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.
iii. 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 3.2.4(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 3.2.4(d)(ii) and 3.2.4(d)(iii) above, the primary control of the developer account shall remain with you and as such:
- i. you will be solely responsible to ensure compliance with all the rules and procedures established by Apple and Google.
- ii. 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 Content.
- iii. 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 AttendeeHub container.
- iv. 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.
3.4 Additional Graphics.
Cvent provides optional graphics arts services ("Additional Graphics") which may be used by You to supplement the Content including to create splash screen, icons, banners, and background, for an additional fee.
3.5 Supported Devices, Operating Systems and Software Releases.
a) 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 Android Market only.
b) 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.
3.5.2 Operating Systems.
Cvent provides technical support for Apps on the current major release and immediately preceding major release of iOS and Android OS.
3.5.3 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.
3.6 Mobile Event Solution Features.
Mobile Event Solution 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 Content 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 App Build Plus) are available if specified on the applicable Order Form.
3.7 User Ids.
3.8 Onsite Product Features:
|Fee Collection (Card on File, New Credit Card, Offline)|
|Collect Donations/Sell Additional Items|
|Barcode Scanning (camera)|
|Barcode Scanning (external, wireless, Bluetooth device)**|
|QuickScan Kiosk Mode|
|Galleries per Event||1||5|
|Search Terms per Gallery||10||10|
|Direct Posts||Additional fee|
* = Customer will also be charged an overage fee for any use of OnArrival Premium at events beyond the number of events allowed as per the Order Form, at the rate specified in the Order Form and the exact amount of the overage fees so charged will be set forth on the Order Form
** = May purchase additional
*** = By using this feature, you represent and warrant that you have sought prior permission from the intended recipient(s) to send them SMS. Further, any costs and charges involved in sending and/or receiving SMS shall be borne by you and/or the intended recipient (as the case may be).
**** = Badge printing through OnArrival Premium is limited to 500 attendees per event. Events with greater than 500 attendees per event will require the purchase and use of OnArrival360. Please contact your Sales Representative for additional information.
4.1 During the term of the Agreement, Cvent agrees to provide You with email and telephone access to the CrowdCompass Mobile 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. If You have more than one EventCenter login, You agree to appoint an Authorized Support Contact who will contact the CrowdCompass Mobile Support Team directly on behalf of Your other EventCenter users.
4.2 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 3.2.4(d) above) and Mobile Marketplaces, and Cvent shall retain no obligation to support, update or maintain such App(s).
5.1.1 Each party shall maintain the confidentiality of all information and data of the other and its affiliates, that is marked as confidential or which ought reasonably to be regarded as confidential, that it collects, receives or processes in connection with the Agreement and shall not directly or indirectly copy, release, disclose, divulge or permit access to any such confidential information without the prior written consent of the other party.
5.1.2 The restrictions in this Section do not apply to any information which:
a) at the time of disclosure or thereafter is generally available to and known by the public or any third party (other than as a result of an unauthorized disclosure directly or indirectly by the non-disclosing party),
b) was or becomes available to the non-disclosing party on a non-confidential basis from a source other than the disclosing party, and
c) has been independently acquired or developed by the non-disclosing party without violating any of its obligations under the Agreement.
5.1.3 The terms and conditions (including pricing) of any order for Cvent products or services shall be deemed the Confidential Information of both You and Cvent.
5.1.4 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 Content by attendees of the event(s). Therefore, Customer agrees that Cvent is not responsible for the unauthorized dissemination of any Content distributed to a mobile device through the Mobile Event Solution.
5.2 Ownership of Your Data.
5.2.2 Contact information will be stored for end users that agree to provide such information through the App. Notwithstanding the foregoing, information related to the use of the App by end users (usage statistics) will remain the property of Cvent for its own use as it sees fit.
5.2.4 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 Order Form.
5.3 High Risk Personal Information.
5.3.1 Notwithstanding any provision to the contrary in the Agreement, You acknowledge and agree that use of the Mobile Event Solution to transmit, process or store High Risk Personal Information (as defined below) is unnecessary for use of the Mobile Event Solution and therefore You shall be solely responsible for any such use of the Mobile Event Solution by You or Your employees, agents, subcontractors or clients, and Cvent shall bear no risk or liability for same.
5.3.2 "High Risk Personal Information" shall be defined as:
a) the racial or ethnic origin of a data subject; b) his/her political opinions; c) his/her religious beliefs or other beliefs of a similar nature; d) whether he/she is a member of a trade union; e) his/her physical or mental health or condition (except for food allergies or medical contact information), genetic or biometric data; f) his/her sexual life or sexual orientation; g) the commission or alleged commission by him/her of any offense; h) any proceedings for any offence committed or alleged to have been committed by him/her, the disposal of such proceedings or the sentence of any court in such proceedings; i) national, social security or taxpayer ID number or other government issued ID numbers, date of birth and/or gender; j) financial account information; and k) 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).
6. SUBSCRIPTION RIGHT
6.1 Subscription Right:
6.1.1 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 Mobile Event Solution during the Term hereof solely for the purpose of configuring and deploying an App for Your event(s).
6.1.2 The Mobile Event Solution may only be used for the number of events specified on Your Order Form, and, if you exceed the contracted number of events as specified on Your Order Form, You will be charged using the then-current rates for the overage.
6.1.3 Except for the foregoing subscription right, no other rights to any component of the Mobile Event Solution are granted hereunder.
6.2 No Title.
This subscription right confers no title or ownership in the Mobile Event Solution or any component thereof. This subscription right is not a sale of any rights in the Mobile Event Solution including any instances of the App published for Your event(s). The Mobile Event Solution is owned by Cvent and You must treat it like any other copyrighted material.
6.3 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 are available for an additional fee.
6.4 No De-compilation.
You may not copy or modify the App, reverse engineer it or disassemble/de-compile the App.
6.5 Not for Resale.
You agree that You will not use the App or any component of the Mobile Event Solution for hire on behalf of another individual or organization or in any other resale capacity.
6.6 No Source Code.
You will not receive or have access or subscription right to any source code for the App.
Access is limited to the version of the Mobile Event Solution in Cvent’s production environment. Cvent may from time to time at its sole discretion update the Mobile Event Solution 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 Mobile Event Solution via the Internet by use of a Customer-provided browser. The Mobile Event Solution 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 Mobile Event Solution, including but not limited to Internet access and adequate bandwidth.
7. WARRANTY; INTELLECTUAL PROPERTY INDEMNIFICATION
7.1 Cvent hereby represents and warrants to You that Cvent is the owner of the App and other components of the Mobile Event Solution Package being provided to You or otherwise has the right to grant to You the rights set forth in the Agreement.
7.2 Customer represents and warrants that it is not and will not provide access to the Mobile Event Solution 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 7.2 shall be deemed a material breach of this Agreement and Cvent may immediately terminate this Agreement.
7.3 As Your sole remedy, in the event of any breach or threatened breach of Section 7.1, Cvent shall, at its option, either:
7.3.1 procure, at Cvent’s expense, the right for You to use the App,
7.3.2 replace the App or any part thereof that is in breach with App of comparable functionality that does not cause any breach, or
7.3.3 terminate the subscription right and access to the corresponding App and refund any prepaid unused fees as of the date of termination.
7.4 Cvent shall defend You against any claim or lawsuit by a third party (a "Claim") against You to the extent such Claim alleges that the Mobile Event Solution, used in accordance with the terms of the Agreement, infringe any patent, copyright or trademark, or misappropriates a trade secret of a third party, and will indemnify You for all damages finally awarded against You by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Cvent, arising out of such Claim.
7.5 Notwithstanding the indemnity obligations specified under this paragraph or anything to the contrary under the Agreement, Cvent shall have no defense or indemnification obligation or other liability for any Claim arising from:
7.5.1 use of the Mobile Event Solution other than in accordance with the Agreement;
7.5.2 modification of the Mobile Event Solution;
7.5.3 the combination of the Mobile Event Solution with any materials contributed by You or any third parties if the Mobile Event Solution would not directly infringe without such combination;
7.5.4 any third party products, services, hardware, software or other materials; or
7.5.5 any obligation by You to defend or indemnify Cvent.
8. PRICING AND PAYMENT
8.1 TThe pricing and payment terms for the Mobile Event Solution are as set forth in the applicable Order Form signed by You and Cvent. All payments shall be made in Euros, and unless otherwise stated, are exclusive of VAT, which may be chargeable at the applicable rate.
8.2 Except as otherwise agreed in writing and signed by an authorized officer of both parties, all payments due to Cvent shall be due and payable in full within thirty (30) days of receipt by You of a proper invoice. 100% of all due payments must be received before submission of Your App(s) to their respective stores and Mobile Marketplaces can commence. Payment shall be by check unless otherwise specified on your Order Form. 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.
8.3 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 Order Form Term spans three years, you will be charged the annual amount three times.
8.4 If you do not pay the fees or other charges when they are due, then Cvent will assess a daily finance charge at a per annum rate of two percent (2%) above the base lending rate of the European Central bank for the period beginning on the date on which payment was due and ending on the date on which payment is made.
8.5You are responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on Services provided under this Agreement, excluding taxes based on Cvent's net income.
8.6Cvent may, at its option, elect to terminate the Agreement and restrict Your access to the EventCenter and availability of the App for failure to pay any fees associated with the Agreement that are past due by more than sixty (60) days.
8.7Cvent 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 Order Form. 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.
9.1 Either party may elect to terminate the Agreement:
9.1.1 upon written notice to the other party of a material breach of obligations by that party regarding the Agreement unless such material breach is cured within thirty (30) days after such notice; or
9.1.2 if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership.
9.2 You will not use the Mobile Event Solution in any manner which exceeds the scope of Your subscription right under Section 6 (Subscription Right) of these Terms, or which violates Your obligations under Section 3.2.1 or Section 3.2.2 (Content; Mobile Platforms) 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 Mobile Event Solution, other Cvent customers or third parties (all the foregoing "Prohibited Uses"). If You do use the Mobile Event Solution for any Prohibited Uses, Cvent may immediately suspend or terminate Your access to the Mobile Event Solution. 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 Order Form even if Your access to the Mobile Event Solution is suspended or terminated for Prohibited Uses.
9.3 Cvent reserves the right to suspend or discontinue support services hereunder (without terminating this Agreement) in the following circumstances:
9.3.1 Your requests for support are overly excessive or duplicative of prior requests for issues that have already been addressed by Cvent;
9.3.2 Your requests relate to the general use of the Services that are addressed via Cvent’s training tools and resources or which a person, using reasonable efforts, can perform after completing the Cvent’s training tools or resources; or
9.3.3 You are abusive or offensive toward Cvent’s personnel.
9.4 Except as otherwise specified on the Order Form or other document provided to You by Cvent, Section 9.1, Section 9.2, Section 9.3 and Section 10.2 provides the entirety of each party’s termination rights under the Agreement.
9.5 Your subscription right to use the EventCenter and App will continue so long as You remain in compliance with the Agreement. Upon termination, You shall cease using the App and any other components of the Mobile Event Solution 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.
10. LIMITED WARRANTY
10.1 Limited Warranty.
You will have an opportunity to review the App as provided in Section 3.2.4 prior to submission of the App to the applicable Mobile Marketplaces. Cvent warrants to You that for a period of thirty (30) days prior to an event and one hundred and twenty (120) days following such event (the "Warranty Period"), it will ensure the App performs for such event, as reviewed by You, substantially in accordance with the product documentation, including marketing materials, furnished to You by Cvent.
If Cvent receives notice that the App is defective, in accordance with the standard stated in Section 10.1 above, during the Warranty Period, Cvent will, at its option, either repair or replace the App or other element that proves to be defective. If Cvent is unable, within thirty (30) days, to correct a defect that You have notified Cvent of during the Warranty Period, as Your sole remedy for Cvent’s breach of warranty You will be entitled to terminate the Agreement upon written notice and obtain a full refund of any fees associated with the defective App for such event.
10.3 Any warranties set forth in these Terms do not apply to defects resulting from improper or inadequate installation, maintenance or configuration of the App or EventCenter performed by non-Cvent employees unless such non-Cvent employees were retained as contractors or consultants by Cvent.
10.4 YOU ACKNOWLEDGE AND AGREE THAT EXCEPT AS SET FORTH IN THESE TERMS, THERE ARE NO WARRANTIES EXPRESS OR IMPLIED EXTENDED TO YOU. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS LIMITED TO THE EXPRESS WARRANTY SET FORTH ABOVE IN THIS SECTION.
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 NEITHER CVENT NOR CUSTOMER EXCLUDES OR RESTRICTS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS OWN NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS ACTING IN THE COURSE OF THEIR EMPLOYMENT OR AGENCY OR TO ANY EXTENT NOT PERMITTED BY LAW.
11.5 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.
12.1. Governing Law.
This Agreement will be governed by the law of England and Wales. 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 waive their right to a jury trial. In the event of any controversy, dispute, or claim arising out of, or relating to, this Agreement or the relationship between the Parties, then prior to proceeding as set forth below, each Party shall first provide prior written notice of such to the other Parties and request a meeting to discuss such controversy, dispute or claim. The Parties shall mutually agree to a time and place for such meeting (which may be conducted via teleconference), provided such meeting shall take place no later than fourteen (14) days after the date of such request. Each Party shall ensure that appropriate level of management shall participate in this meeting, provided each Party shall be represented by at least one employee that is at the director level or higher. If a resolution is not reached at the conclusion of this meeting, the Parties agree a second meeting shall be scheduled no later than seven (7) days thereafter, with participation by an employee of at least the Vice President level or higher.
12.1.2 Subject to the foregoing, any controversy or claim arising out of, or relating to, this Agreement (including the enforceability or breach thereof, any question regarding its existence, validity or termination) or relating to the Service shall be finally resolved by arbitration under the UNICTRAL Arbitration Rules (“Rules”), which Rules are deemed to be incorporated by reference into this clause. Notwithstanding the foregoing, the arbitrator shall not be authorized to award punitive damages with respect to any such claim or controversy, nor shall any party seek punitive damages relating to any matter under, arising out of or relating to this Agreement or the Service in any other forum. If any arbitration or court action is commenced by either party, the substantially prevailing party in that arbitration or action is entitled to recover from the other party its attorneys’ fees and costs (including arbitration fees and costs and expert witness fees) incurred in connection therewith. The entire arbitration shall be conducted in English and concluded in no later than ninety (90) days after service of the arbitration demand. The arbitral award must be made in English. A written demand for arbitration must be delivered within one (1) year from the date on which the Services to which the claim relates were provided. Failure to comply with this provision shall be a complete bar to any claim. The place of arbitration will be Frankfurt, Germany.
12.1.3 Notwithstanding anything set forth herein, if a breach or threatened breach by a Party of any of its obligations under this Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy, then the other Party hereto shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without first exhausting the remedies set forth in this Section 12.1 or any requirement to (i) post a bond or other security, or (ii) prove actual damages or that monetary damages will not afford an adequate remedy.
12.2. Entire Agreement.
12.2.1 The Agreement supersedes any prior oral or written statements, agreements, or representations and can be changed only by an amendment designated as such and signed by an authorized officer of both parties.
12.2.2 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.
12.2.3 The Agreement may be signed in multiple counterparts, and each shall be deemed an original. In the event that one or more of the provisions of the Agreement shall be found illegal or unenforceable, then such provisions shall be deemed struck and other provisions of the Agreement shall remain in full force and effect.
12.2.4 Cvent’s failure to exercise or enforce any right, power or remedy under the Agreement shall not operate as a waiver thereof.
12.2.5 The parties acknowledge that this Agreement was originally drafted, and negotiations thereof were conducted, in the English language and translated to the German language with identical meaning. In the event of any conflicts, ambiguity, additions or discrepancy between the English language version and the German language version, the English language version of the Agreement will prevail over the German language version.
12.3.1 Except for assignment to a party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other party, neither party may assign or otherwise transfer any right or obligation set forth in the Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed.
12.3.2 Notwithstanding the foregoing, Cvent may subcontract the provision of Services in whole or in part to a Cvent affiliate. The Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
12.4. 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.
12.5. Compliance With Anticorruption Laws:
12.5.1 Customer agrees that neither it, nor any officer, director, employee, subsidiary, affiliate, agent, representative or other person working on behalf of Customer, in connection with this Agreement, will violate any anti-corruption or anti-bribery laws, statutes and regulations of any country, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”) and the UK Bribery Act 2010.
12.5.2 Customer warrants that it will not engage in any bribery, extortion, kickbacks, or other unlawful or improper means of conducting business. Customer also warrants and covenants that it and its respective, officers, directors, employees, agents and representatives have not violated, and will strictly comply with, the anticorruption or anti-bribery laws, statutes and regulations of any country which makes it unlawful to offer, pay, promise to pay, or authorize the payment of any money, or to offer, give, promise to give, or authorize the giving of anything of value, directly or indirectly, inter alia to a Covered Recipient (defined herein) for a Prohibited Purpose (defined herein).
12.5.3 For purposes hereof, “Covered Recipient” means a foreign official (including employees of government-owned or controlled entities), foreign political party (including any official thereof), official or employee of an international public organization, or candidate for foreign political office; and “Prohibited Purpose” means assisting a party to obtain or retain business for or with, to secure an improper advantage, or to direct business to, any person, by:
a) influencing any act or decision of a Covered Recipient in such Covered Recipient’s official capacity;
b) inducing a Covered Recipient to do or omit to do any act in violation of such Covered Recipient’s lawful duty;
c) securing any improper advantage; or
d) inducing a Covered Recipient to use such Covered Recipient’s influence with a foreign government (or instrumentality thereof) to affect or influence any act or decision of such government (or instrumentality thereof), including entities that are government-owned or controlled.
12.5.4 Customer further warrants that it will not engage in any commercial bribery, kickback schemes, or other forms of improper payments to any person, private or public, and agrees that it will not create or submit any false, inaccurate, or misleading invoices or other business documents related to this Agreement.
12.5.5Customer will permit, upon request, Cvent reasonable access to Customer’s books and records and/or to conduct periodic or ad hoc audits, as Cvent deems necessary. Upon request, Customer agrees to provide Cvent with a written certification attesting its compliance with the foregoing anticorruption requirements.
Any notice pursuant to the Agreement shall be in writing and shall be deemed to have been duly given (a) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (b) when delivered if delivered personally or sent by express courier service; (c) when transmitted if sent by a confirmed facsimile; or (d) when transmitted via email, provided that the receiving party acknowledges receipt by return email, and that the email clearly states in the subject line that it is intended to give notice under the Agreement. Any Notice required to be given under this Agreement or in connection with the matters contemplated by it will, except where otherwise specifically provided, be in writing in the English language.
12.7 Legal Fees.
The prevailing party in any legal action to enforce or interpret the Agreement shall be entitled to recover reasonable attorney’s fees.
12.8 No Third Party Rights.
The parties acknowledge and agree that a person who is not Cvent or Customer (including an employee, officer, director, agent, representative, or other affiliated third party of Customer or Cvent) has no rights under the Agreement to enforce any term or condition of the Agreement.
12.9 Customer List.
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 Cvent’s 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.