EVENT ENGAGEMENT PROMOTION SERVICES AGREEMENT
1. TERMS AND CONDITIONS
1.1 Subject to the terms of this Agreement, Higher Logic will use commercially reasonable efforts to provide Subscriber the Services and hereby grants Subscriber a non-exclusive right to access and use the Higher Logic cloud-based service offerings described on the Order Form (the “Software Services”) solely for its business purposes as contemplated by the Agreement. As part of the registration process, Subscriber will identify an administrative email address, first name, last name and password for Subscriber’s account. Higher Logic reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Higher Logic will endeavor to provide Subscriber with reasonable support services, through electronic mail or another online mechanism, in accordance with Higher Logic’s standard practice.
1.3 Subscriber will cooperate with Higher Logic in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, including all information provided by Higher Logic that is required for Event Engagement Platform – promotion implementation.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Subscriber will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software Services or any software, documentation or data related to the Software Services (the “Software Services”); modify, translate, or create derivative works based on the Software Services; use the Software Services for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.3 Subscriber represents, covenants, and warrants that Subscriber will use the Software Services only in compliance with all applicable laws and regulations and that it has all rights necessary to permit Higher Logic to use the Subscriber Data (as defined below) as contemplated hereunder. Subscriber hereby agrees to indemnify and hold harmless Higher Logic against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of Software Services. Although Higher Logic has no obligation to monitor Subscriber’s use of the Software Services, Higher Logic may do so and may prohibit any use of the Software Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account or the Equipment with or without Subscriber’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Higher Logic includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Subscriber includes non-public data provided by Subscriber to Higher Logic to enable the provision of the Software Services (“Subscriber Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Software Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 While using the Software Services, Subscriber and Users may have the opportunity to input data, information and materials (“Subscriber Data“). All Subscriber Data shall remain the property of Subscriber and Subscriber reserves all rights therein and thereto, subject to the rights and licenses granted herein. Subscriber hereby grants to Higher Logic a non-exclusive, royalty-free, worldwide right and license to use, copy, and display Subscriber Data for the sole purposes of providing the Software Services to Subscriber and its Users and otherwise in accordance with this Agreement. Subscriber agrees that Higher Logic may use its third-party contractors and services providers to exercise the rights and licenses granted to Higher Logic in this Section solely in connection with providing the Software Services to Subscriber and its Users. Notwithstanding any provision to the contrary in the Agreement, Subscriber acknowledges and agrees that use of the Software Service to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Software Services and therefore Subscriber shall be solely responsible for any such use of the Software Services by Subscriber or its Users, and Higher Logic shall bear no responsibility, risk or liability for same. “Sensitive Personal Information” shall be defined as (a) social security numbers; (b) passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body; (c) health or medical information (other than food allergies or medical contact information); (d) financial account information; must be protected in accordance with specific or heightened security requirements imposed by Applicable Laws or industry standards; (e) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; (f) reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, sex orientation or activities, or genetic or biometric data; or (g) 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, IP address, email address, and phone number). Further, by using the Software Services, Subscriber confirms that it will not input, and will not solicit Users to input, Sensitive Personal Information or otherwise use the Software Services in a manner that could give rise to obligations under Applicable Laws relating to Sensitive Personal Information.
3.4 To the extent that Higher Logic processes any Personal Data (as defined in the Higher Logic Data Processing Agreement) as part of Subscriber Data that is subject to the General Data Protection Regulation (the “GDPR”), on Subscriber’s behalf, in the provision of the Software Services hereunder, the terms of the Higher Logic Data Processing Agreement set forth at https://www.higherlogic.com/dpa, which are hereby incorporated herein by reference, shall apply. If Subscriber is located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Higher Logic Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Higher Logic under this Agreement and pursuant to the provisions of the Higher Logic Data Processing Agreement, shall apply.
3.5 Higher Logic will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of data in violation of any applicable laws. Subscriber acknowledges, however, that Higher Logic cannot guarantee the security of such information given the nature of the internet. Subscriber also acknowledges that by issuing user identifiers and passwords for its authorized end-users, Subscriber controls, defines and manages access to the data that will be used by Subscriber and its Users within the Software. Subscriber is responsible for (i) compliance with all foreign and domestic privacy laws and regulations that may be applicable to Subscriber’s use of the Software Services, (ii) securing all necessary prior consents for the collection, storage, and use of data within the Software Services, and (iii) creation of, and compliance with, applicable policies regarding access and use by users of any data.
3.6 Higher Logic shall have the right anonymize, collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software Services and related systems and technologies (including, without limitation, Subscriber Data and data derived therefrom (the “Derived Data”), and Higher Logic will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software Services and for other development, diagnostic and corrective purposes in connection with the Software Services and other Higher Logic offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.7 Higher Logic shall own all right, title, and interest in and to the Software Services, all improvements, enhancements or modifications thereto, any software, applications, inventions or other technology developed in connection with the Software Services or support, and all intellectual property rights related to any of the foregoing. Subscriber acknowledges and agrees that Higher Logic owns all right, title and interest, including all related intellectual property rights, in and to the Software Services and Derived Data, including without limitation all technology, know-how, techniques, algorithms, methodologies, processes and tools used to provide or contained within the Software Services, all new modules, new versions, improvements, modifications, enhancements and upgrades to the Software Services, and all derivative works of the Software Services, all of which constitute valuable trade secrets and Confidential Information of Higher Logic.
4. TERM AND TERMINATION
4.1 The initial term of this Agreement shall commence upon the signature date of the Order Form which includes a hyperlink or other reference to this Agreement and/or to which this Agreement is attached and, unless earlier terminated by either party, shall be co-terminus with the term set forth in the Order Form (the “Initial Term”). For the avoidance of doubt, Higher Logic may, in its sole discretion, immediately terminate this Agreement or any Order Form at any time with or without cause for any reason or for no reason at all.
4.2 In addition to any other remedies it may have, either party may also immediately terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability.
4.3 Upon termination or expiration of this Agreement, Higher Logic shall have no obligation to retain any Subscriber Data and will delete the Subscriber Data not later than fifteen (15) days following such expiration or termination unless Higher Logic is required to retain such Subscriber Data by Applicable Laws or pursuant to a court order or request of a regulatory authority.
Higher Logic does not warrant that the Software Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Software Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE SERVICES AND PROFESSIONAL SOFTWARE SERVICES ARE PROVIDED “AS IS” AND HIGHER LOGIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, HIGHER LOGIC AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF PROFITS OR BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND HIGHER LOGIC’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY SUBSCRIBER TO HIGHER LOGIC FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT HIGHER LOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Subscriber except with Higher Logic’s prior written consent. Higher Logic may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind Higher Logic in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.