These Terms and Conditions together with the applicable CSS Order Form (the “Order Form”) (collectively, the “Agreement”) is between the customer identified in the Order Form (“Customer”), and Conference Software Solutions, Inc., a Delaware corporation (“CSS”), and is effective on the Effective Date set forth in the Order Form (the “Effective Date”).Capitalized terms not defined in the body of the Agreement are defined in Section 21.The parties agree as follows:
This Agreement governs Customer’s access to and use of the CSS proprietary offerings and services described in the Order Form or such additional services specified in the applicable Order Form (collectively, the “Service”).Customer may use the Service to facilitate the scheduling of appointments and other meetings at events organized by Customer as specified in the Order Form (the “Event(s)”).
Subject to the terms and conditions of this Agreement, including payment of applicable fees, CSS hereby grants to Customer a non-sub-licensable, non-transferable, non-exclusive world-wide license during the Term (as defined below), subject to the terms and limitations detailed in the applicable Order Form, to (i) access and use the Service and (ii) allow access to the Service by the number of Attendees for which Customer has paid the applicable fees, in each of the foregoing cases in accordance with the Documentation and solely for Customer’s internal business purpose of holding Event(s). CSS and its licensors reserve all rights not expressly granted in this Agreement.
Customer is solely responsible for organizing the Event(s) at which Customer will utilize the Service, including, without limitation, inviting Attendees and procuring the space, equipment, staff, and other services necessary to host the Event(s). Customer is solely responsible for all activity (a) occurring under Customer’s account for the Service, and (b) occurring with the Service at Events, in the case of each of the foregoing, including all activity by Attendees. Customer shall, and shall ensure that Attendees, abide by all applicable laws, rules and regulations in connection with Customer’s or Attendees’ use of the Service, including those related to data privacy, electronic communications and the transmission of technical or personal data. Customer is solely responsible for the security of all passwords and other access credentials required in order to access the Service. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, (ii) notify CSS promptly of any unauthorized use of Customer’s account or any other known or suspected breach of security relating to the Service; (iii) notify CSS promptly of and use reasonable efforts to promptly stop any unauthorized copying or distribution of Content that is known or suspected by Customer or Attendees. As between Customer and CSS, Customer is solely responsible for: (a) obtaining, maintaining, and paying for all hardware, software, and related services (e.g., Internet access) needed for Customer and Attendees to access and use the Service, and (b) all interaction and communication with Attendees (whether in-person, virtually, or otherwise), including, without limitation, providing Attendees with troubleshooting and other support services. Customer is solely responsible for ensuring all necessary Attendee Data and Customer is uploaded to the Service in a timely manner, which Customer may do directly or indirectly by directing Attendees to input relevant information into the Service.
Except as expressly authorized by this Agreement, Customer shall not (and shall not permit any Attendee or any other third party to): (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Service for a third party’s benefit; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Service, CSS System or Content available to any third party; (iii) modify or make derivative works based upon the Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet- based device; (v) reverse engineer or decompile the Service or CSS System; (vi) interfere with in any manner the Service or CSS System, or (vii) access the Service for purposes of monitoring its availability, performance or functionality, or otherwise creating any product or service, which performs functions similar to the functions performed by the Services or for any other benchmarking or competitive purpose; (viii) impersonate another CSS customer or Attendee or provide false identity information to gain access to or use the Service; or (ix) access or copy any data or information of other CSS customers or attendees. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of CSS or its suppliers within the Service or Content. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Service.
CSS has implemented and will maintain Appropriate Security Measures. Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, (i) use of or connection to the Internet provides the potential opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service, Customer Data, and Attendee Data and (ii) CSS is not responsible for (and will not be liable for) any third party technology used by Customer or Attendees in connection with the Service.
As between the parties, Customer is solely responsible for all Attendee Data and Customer Data, including without limitation the accuracy, quality, legality, or appropriateness of Attendee Data or Customer Data. In the event that any Attendee Data or Customer Data is inaccurate, any additional hours spent by CSS correcting such Attendee Data or Customer Data will be subject to the additional fees outlined in the Order Form. Customer represents and warrants that Customer owns or has obtained all rights, consents, permissions, or licenses (including from Attendees) necessary to allow CSS to use the Attendee Data and Customer Data for the purposes set forth in this Agreement. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for CSS to use the Attendee Data and Customer Data for the purposes set forth in this Agreement. Customer grants CSS a non-exclusive, worldwide, royalty-free and fully paid license to (i) use Attendee Data and Customer Data as necessary for purposes of providing and improving the Service, and (ii) use the Customer trademarks, service marks, and logos as required to provide the Service. Customer represents and warrants that no Attendee Data or Customer Data will: (a) infringe, misappropriate, or violate any intellectual property rights, publicity/privacy rights, property right, or any other right, law or regulation; or (b) contain any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or information. In the event of any breach of this Section 4.2, CSS may (1) remove any or all of the Attendee Data and/or Customer Data, (2) suspend all Attendees’ and Customer’s access to the Service, and/or (3) terminate this Agreement. CSS may, but is under no obligation to, review Attendee Data or Customer Data. CSS may collect other information and data about Attendees’ use of the Service, including preferences and other non-identifiable information, which CSS may use for its business purposes, provided, however, that no such information may be disclosed by CSS unless it is aggregated and anonymized.
Subject to the payment by Customer of all applicable fees due, CSS will provide to Customer during Business Hours up to the number of implementation hours per Event outlined in the Order Form. Any additional implementation hours will be subject to the additional fees outlined in the Order Form. Any additional services requested by Customer would be subject to a separate written agreement between the parties.
Unless otherwise agreed in the Order Form, CSS will provide to Customer the Support Services via CSS’s online help portal and group webinars that will provide direction to Customer regarding how to utilize the Service.
CSS and its licensors own all right, title and interest, including all related Intellectual Property Rights, in and to the CSS System, the Content and the Service. The CSS name, the CSS logo, and the product names associated with the Service are trademarks of CSS or third parties.
Customer owns all right, title and interest in and to the Customer Data.
In consideration for the access rights granted to Customer and the Service performed by CSS under this Agreement, Customer will pay to CSS the fees described in the Order Form. CSS’s fees are exclusive of all applicable sales, use, value-added and other taxes, levies, duties, tariffs, assessments, export and import fees, or other similar charges imposed by taxing authorities (“Taxes”), and Customer shall be responsible for payment of all such Taxes, excluding only United States (federal or state) taxes based solely on CSS’s income. All amounts are quoted in and Customer must pay all amounts owed in U.S. Dollars. CSS may charge a reconnection fee in the event the Service is suspended and then re-instated. Customer will make all payments of fees due to CSS free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of such fees to CSS will be Customer’s sole responsibility, and Customer will provide CSS with official receipts issued by the appropriate taxing authority, or such other evidence as the CSS may reasonably request, to establish that such taxes have been paid.
CSS will invoice Customer for all fees due as set forth in the Order Form. All amounts described in the invoice are due and payable as set forth in the Order Form. All payment obligations are non-cancelable, and all amounts paid are nonrefundable. If Customer allows use of the Service by more than the paid-for number of Attendees for the applicable Event, CSS may invoice Customer for the additional Attendees at the applicable fees per-Attendee set forth in the Order Form. If Customer disputes in good faith any invoice, Customer must contact CSS in writing at [email protected] within twenty (20) days of the date of the disputed invoice describing in detail the basis for such dispute in order to be eligible to receive an adjustment or credit. Customer must provide CSS with complete and accurate billing and contact information. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
This Agreement begins on the Effective Date and will continue for the term set forth on the Order Form (the “Term”), unless terminated earlier as allowed in this Agreement.
Any changes, additions, improvements or enhancements to the Service, the CSS System and/or the Content made by CSS at the suggestion or request of Customer (“Custom Development”) will be the sole property of CSS, irrespective of any fees charged by CSS to Customer relating to such Custom Development.
In the event of any breach of this Agreement by Customer or any Attendee, CSS may suspend all Attendees’ and Customer’s access to the Service until Customer has cured the breach. In addition, CSS reserves the right (in addition to any other rights or remedies CSS may have) to suspend all Attendees’ and Customer’s access to the Service if any fees due are more than thirty (30) days overdue until such amounts are paid in full.
Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice specifying such breach. Upon the termination or expiration of this Agreement for any reason: (a) all licenses granted to Customer hereunder will automatically terminate; (b) any amounts owed to CSS by Customer under this Agreement before such termination or expiration will become immediately due and payable; (c) each party will return to the other all Confidential Information of the other party in its possession or control in accordance with Section 17.4, and (d) subject to Section 20, CSS will remove all Customer Data and Attendee Data from the CSS System and all Attendees’ and Customer’s access to the Service will be immediately terminated.
The rights and duties of the parties under Sections 3, 4.2, 6 through 21 will survive any termination or expiration of this Agreement.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
CSS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CSS AND ITS SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS PROVIDED SOLELY AS A MEANS TO FACILITATE APPOINTMENT SCHEDULING, AND CSS DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR (A) THE INTERACTIONS, BUSINESS DEALINGS, AND OTHER TRANSACTIONS CONTEMPLATED OR CONSUMMATED BETWEEN ATTENDEES (WHETHER IN-PERSON, VIRTUALLY OR OTHERWISE), (B) THE ACTS AND OMISSIONS OF ATTENDEES; AND (C) ANY THIRD PARTY TECHNOLOGY USED BY CUSTOMER OR ATTENDEES IN CONNECTION WITH THE SERVICE.
Customer shall indemnify, defend, and hold CSS, its suppliers and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, suits, allegations, costs, damages, losses, costs, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim arising from or related to CSS’s access to, possession of, manipulation of, and use of the Customer Data or Attendee Data; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties or a breach of this Agreement, (iii) Attendees’ use of the Service, or (iv) Events.
If any action is instituted by a third party against Customer based upon a claim that the Service, as provided, infringes a United States issued patent, copyright or trademark, then CSS will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim.CSS may, at its option and expense, and as Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. CSS will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service (i) after it has been modified by Customer or a third party without CSS’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by CSS where the combination is the basis for the infringing activity. This Section sets forth the entire obligation of CSS and Customer’s exclusive remedy against CSS or any of its suppliers for any infringement claim.
A party seeking indemnification under this Section 14 will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim; and (c) provide to the other party all available information and assistance.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CSS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER OR CUSTOMER’S BREACH OF SECTION 4.2 (CUSTOMER DATA), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED, IN THE CASE OF CSS, THE AMOUNTS RECEIVED FROM CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; AND IN THE EVENT OF CUSTOMER, THE AMOUNT PAID TO CSS BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER OR CUSTOMER’S BREACH OF SECTION 4.2 (CUSTOMER DATA), IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 17.The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations under Section 17.2 with respect to any Confidential Information of the Disclosing Party will not apply to information that: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (ii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party of the requirement in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any action to contest or limit the scope of such disclosure. Customer hereby grants to CSS a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Attendees, relating to the Service. CSS will not identify Customer as the source of any such feedback.
The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will, upon request, certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 17.4.
Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
This Agreement and any action related thereto shall be governed and interpreted by and under the laws of the State of Illinois, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, The parties expressly consent to the federal and state courts in Illinois having exclusive personal jurisdiction and venue over any dispute, claim, litigation, or controversy of any nature arising out of or relating in any way to this Agreement. No legal terms or other text or information set forth on any purchase order, preprinted form or document (other than the Order Form(s) hereunder) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between Customer and CSS. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by the waiving party in writing. This Agreement, together with the Order Form(s) hereunder, comprises the entire agreement between Customer and CSS and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the CSS. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from CSS, or any products utilizing such data, in violation of the United States export laws or regulations. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement or in the applicable Order Form. Notice hereunder will be effective upon receipt or four (4) days after being deposited in the mail as required above with the postal authority located in the receiving party’s county, whichever occurs sooner. Any notice to CSS will be delivered to Conference Software Solutions, Inc., 222 West Merchandise Mart Plaza, P.O. Box 4020 Chicago, IL 60654-4020. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
This Agreement may be signed in counterparts, each of which will constitute an original, but all of which together will constitute the same instrument.
CSS will enable Customer and Attendees to access the Service (back end data may not be manipulated or repurposed for any other event) for up to ninety (90) days following the conclusion of the Event. At Customer’s request, CSS will enable Customer and Attendees to access the Service beyond such ninety (90) days following the conclusion of the Event subject to the payment of the applicable fees set forth in the Order Form.
As used in this Agreement the following terms have these meanings:
“Appropriate Security Measures” means commercially reasonable technical, physical and procedural controls designed to (i) protect Attendee Data and Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by CSS, and (ii) prevent the introduction of viruses, worms, Trojan horses or other unintended malicious or destructive code and other harmful components into the Service or Content.
“Attendee(s)” mean individuals authorized by Customer to access and use the Service in order to participate in an Event.
“Attendee Data” means any data or information (including without limitation personally identifiable information) provided, made available, or submitted by or on behalf of an Attendee to the Service.
“Business Hours” shall mean the hours between 9 am and 5 pm, Central Time, Monday through Friday, excepting recognized United States national holidays.
“Content” means the visual information, documents, software, products and services contained or made available to Customer and/or Attendees via the Service, other than Customer Data or Attendee Data.
“Customer Data” means any data or information (including without limitation personally identifiable information) provided, made available, or submitted by or on behalf of Customer to the Service. Customer Data may include information about Attendees.
“Documentation” means the published documentation relating to the use and operation of the Service made generally available by CSS to its customers.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, pandemic, earthquake, civil unrest, acts of terror, strikes or other labor problems (other than those involving CSS’s employees), telecommunications or network failures or delays, computer failures involving hardware or software not within CSS’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“CSS System” means the hardware, software, network equipment, and any other CSS technology (including products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by CSS or otherwise used by CSS in providing the Service.
“Support Services” means the standard technical assistance provided by CSS personnel to Customer’s support administrator(s) relating to the use or configuration of the Service.