Event Solutions - Third Party Terms
Customer Service Agreement Terms and Conditions
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
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1. SERVICES AND SUPPORT
Subject to the terms and conditions of this End User Service Agreement (“Agreement”), Event Solutions NZ Ltd and its service provider(s), if any hereinafter collectively “Event Solutions NZ Ltd”), will use reasonable efforts to provide the Application Service and related services (collectively the “Services”) to Customer. Event Solutions NZ Ltd will be responsible for providing Customer with support services, through electronic mail or telephone, in accordance with its standard practice. Customer shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary services needed to use the Application Services (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment.
Event Solutions NZ Ltd will be the sole publisher of your Applications with any mobile platform provider including, but not limited to, the Apple Inc. (“Apple”) App Store™, Google Play™, or Blackberry App World™. Mobile platform providers are referred to in this document as “Providers,” you may not use your own Account to publish an Application developed using the Application Service with any such Providers.
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2. TERM AND TERMINATION
The initial term (“Initial Term”) of this Agreement shall commence upon payment of the first year’s fees and shall run for one year. After the Initial Term, this Agreement shall continue (collectively, the “Term”) provided that Customer shall be responsible for payment of the fee for an additional one year’s term.
In addition to any other remedies they may have, Event Solutions NZ Ltd or Customer may provide thirty (30) days’ written notice of breach by the other party, provided the notice sets forth the breach. The breaching party will have ten (10) days to cure the breach. If the breach or any portion thereof is not timely cured, the Agreement may be terminated at the end of the thirty (30) day period. However, the non-breaching party has the option to waive the breach or any portion thereof, by providing written notice of the waiver fifteen (15) days prior to the expiration of the thirty (30) day period.
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Upon expiration of the Term, Event Solutions NZ Ltd will maintain Customer’s archived data for up to sixty (60) days, and, upon request, will deliver such archived data to Customer in a mutually agreed upon format (at Customer’s expense); thereafter, Event Solutions NZ Ltd may, but is not obligated to, delete archived data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. At the end of this Agreement Term, the Agreement will continue on a year to year basis.
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3. CONFIDENTIALITY
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a. Each party, to include Customer and Event Solutions NZ Ltd (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information, (iii) shall use at least the same degree of care to maintain the secrecy of the information as it uses in maintaining the secrecy of its own proprietary, confidential and trade secret information, shall always use at least a reasonable degree of care in maintaining the secrecy of the information, and shall deliver to the other party, in accordance with any request from the other party, all copies, notes, packages, diagrams, computer memory, media and all other materials containing any portion of the other party’s information.
All such materials and information that is confidential should be clearly identified or marked as confidential at the time of disclosure. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three 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 by law.
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b. Notwithstanding the foregoing, Event Solutions NZ Ltd may (i) collect data with respect to and report on the aggregate response rate and other aggregate measures of the Application Services’ performance, and (ii) list Customer as a customer of the Services in marketing materials.
4. INTELLECTUAL PROPERTY.
a. Except for the license and rights granted hereunder, Event Solutions NZ Ltd retains all right, title and interest in and to the Application Service, including but not limited to copyrights, patents, trademarks, trade secrets, service marks and trade names (collectively referred to as “Intellectual Property”). Event Solutions NZ Ltd shall own all proprietary rights in any modifications or customizations to the Application Service and Intellectual Property, whether created by it, Event Solutions NZ Ltd, users, or a third party. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license, except the limited license provided herein, is granted to Customer or conferred upon Customer by this Agreement or otherwise. Customer
agrees to use the Application Service and Intellectual Property only within these terms. Misuse of any portion of the Application Service or Intellectual Property for any reason other than as contemplated by this Agreement is considered actionable at law.
b. Customer will not decompile, disassemble or otherwise reverse engineer the Application Service and Intellectual Property or cause or permit others to do so. Customer will not modify or cause others to modify the Application Service and Intellectual Property without the prior written consent of Event Solutions NZ Ltd. Customer agrees to prevent any unauthorized copying of the Application Service and Intellectual Property. Customer agrees to use the Application Service only within the scope of their intended business purposes. The obligations of this Section 4 shall survive the Termination of this Agreement.
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5. USER CONTENT
Event Solutions NZ Ltd claims no intellectual property rights over the Materials that Customer loads into the Application Service. Unless otherwise agreed in writing signed by Event Solutions NZ Ltd, by submitting content, adding photos, video, data or other materials directly through the Application Service (collectively, “Materials”), Customer hereby grants to Event Solutions NZ Ltd a royalty-free, perpetual, irrevocable, fully transferable, sublicenseable, nonexclusive right and license to use, access, store, copy, modify, display, distribute, reproduce, perform, create derivative works from, and otherwise use and exploit all such Materials in any form, media, software or technology of any kind now existing or developed in the future and the right to sublicense the
foregoing rights through multiple tiers without compensation to Customer. Customer further grants to Event Solutions NZ Ltd a royalty-free right and license to use Customer’s name, image and/or likeness in advertising and in connection with the licensed rights for the Materials. Customer also agree to indemnify, defend and hold harmless Event Solutions NZ Ltd from and against any claims or costs, including attorneys’ fees, arising from the use or distribution of those Materials. Customer further grants Event Solutions NZ Ltd the right to use Customer’s name in connection with the reproduction or distribution of any such Material. While Event Solutions NZ Ltd is not under any obligation to monitor content provided by Users, Event Solutions NZ Ltd may, in its sole determination, remove any content that it deems objectionable or offensive or unlawful.
6. INTERACTIVE AREAS
The Application Service may offer forums, blogs, comment areas, bulletin boards and chat rooms (collectively, “Forums”) that are intended to provide Users 18 years of age and older an interesting and stimulating forum in which they can express their opinions and share their ideas. Event Solutions NZ Ltd does not endorse the accuracy or reliability of any advice, opinion, statement or information posted on these Forums. Please use your best judgment, and be respectful of other individuals using these Forums. Do not use vulgar, abusive or hateful language. Do Not violate any laws or regulations. You may not use the Forums for advertising or promotional materials or other forms of solicitation. Uploading copyrighted or other proprietary material of any kind without
the express permission of the owner of that material is prohibited and may result in civil and/or criminal liability. Any information Customer discloses when posting a message in these Forums may become public. You should not include any information in your posting that you do not want other parties to see or use and Customer hereby agrees that Customer will not hold Event Solutions NZ Ltd responsible for any third party’s use of information contained in such posting.
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7. MONITORING
Given the nature of the Application Service and the volume of Materials submitted, Event Solutions NZ Ltd cannot and does not monitor all of the Materials posted or transmitted by Customer and other third-party information providers, including, without limitation, any Materials posted via the Forums. You expressly agree that Event Solutions NZ Ltd: (a) will not be liable for the Materials and (b) reserves the right to review, reject, delete, remove, modify, or edit any Materials at any time for any reason, without liability and without notice to Customer.
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8. REPRESENTATIONS AND WARRANTIES
Customer hereby represents and warrants that: (a) Customer has all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms, (b) the Materials are accurate, current and complete, (c) the Materials and Customer’s use of the Application Services shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and Customer’s use of the Application Service shall not violate any applicable law or regulation or cause injury to any person; (e) Customer’s use of the Application Services shall not violate any agreements between Customer and a third party.
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9. INDEMNIFICATION
Customer agrees to indemnify and hold Event Solutions NZ Ltd, and its officers, directors, employees, agents, service providers and contractors harmless from and against any and all claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys’ fees, arising from or related to: (a) the Materials Customer provides, (b) Customer’s use of the Application Service or Customer’s reliance on the content or Customer’s use of the Application Services, (c) Customer’s breach of these Terms, and (d) any actual, prospective, completed or terminated purchase, sale, lease or other transaction between Customer and a third party.
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10. PROHIBITED ACTIVITIES
The following is a partial list of the kinds of activities that are prohibited on or through the Application Service: (a) submitting Materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting Materials that could be harmful to minors; (c) engaging in activity or submitting Materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of “junk mail” or unsolicited mass mailing or “spam” or harvesting or otherwise collecting personally identifiable information about Site users, including names, phone numbers, addresses, email addresses, (collectively, “User
Data”) without their consent; (e) engaging in activity, or submitting Materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting Materials that contain restricted or password only
access pages, or hidden pages or images; (g) submitting Materials that displays pornographic or sexually explicit material of any kind; (h) submitting Materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (i) submitting Materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting Materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without Event Solutions NZ Ltd’ prior written consent such as advertising, solicitations, contests, sweepstakes, barter, and pyramid schemes; (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the Application Service or for any other unauthorized purpose without Event Solutions NZ Ltd’ prior written consent; (m) using
any device, software, or routine to interfere or attempt to interfere with the proper working of the Application Service; (n) decompiling, reverse engineering, or disassembling the software or attempting to do so; or (o) taking any action that imposes an unreasonable or disproportionately
large load on the Application Service, its hardware and software infrastructure or that of any of its Licensors or Suppliers.
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11. WARRANTY AND DISCLAIMER
THE APPLICATION SERVICE IS OPERATED BY EVENT SOLUTIONS NZ LTD ON AN "AS IS" BASIS, AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, EVENT SOLUTIONS NZ LTD HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE APPLICATION SERVICE AND ITS CONTENTS,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, EVENT SOLUTIONS NZ LTD DOES NOT REPRESENT OR WARRANT THE ACCURACY, CURRENCY OR COMPLETENESS OF THE SERVICE, OR OF ANY INFORMATION (INCLUDING WITHOUT LIMITATION THIRD PARTY INFORMATION) PROVIDED BY OR THROUGH THE APPLICATION SERVICE, OR THAT THE APPLICATION SERVICE IS FREE OF VIRUSES, TROJANS OR OTHER HARMFUL CODE, OR WILL OPERATE WITHOUT ERROR OR INTERRUPTION. EVENT SOLUTIONS NZ LTD ASSUMES NO RISK OR RESPONSIBILITY FOR YOUR USE OF THE APPLICATION SERVICE, THE SOFTWARE CLIENT OR ANY OF THE CONTENTS THEREOF, AND YOU USE THE APPLICATION SERVICE AT YOUR OWN RISK. EVENT SOLUTIONS NZ LTD DOES NOT ENDORSE OR MAKE, AND HEREBY EXPRESSLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY AND ALL SOFTWARE, PRODUCTS, SERVICES, DATA AND OTHER CONTENT (INCLUDING WITHOUT LIMITATION THOSE OF THIRD PARTIES) WHICH YOU MAY ACCESS OR USE THROUGH THE APPLICATION SERVICE, OR AS A RESULT OF YOUR USE OF THE APPLICATION SERVICE, OR REGARDING ANY WEBSITE OR OTHER SERVICE
WHICH YOU MAY ACCESS AS A RESULT OF YOUR USE OF THE SERVICE. REFERENCES AND/OR LINKS TO OTHER PRODUCTS, SERVICES, DATA AND/ORWEBSITES ARE PROVIDED SOLELY FOR YOUR CONVENIENCE. APPLICABLE LAW MAY LIMIT OR DISALLOW THE DISCLAIMERS SET FORTH ABOVE, AND SO THESE DISCLAIMERS MAY NOT APPLY TO YOU, EITHER IN WHOLE OR IN PART.
UNDER NO CIRCUMSTANCES SHALL EVENT SOLUTIONS NZ LTD OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, VENDORS OR SUPPLIERS BE LIABLE FOR ANY LOSSES OR DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF OR INABILITY TO USE THE APPLICATION SERVICE, ITS CONTENT OR ASSOCIATED SOFTWARE. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE, INCLUDING BUT IN NO WAY LIMITED TO LOSS OF DATA, PROFITS OR ECONOMIC ADVANTAGE), WHETHER BASED ON A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF EVENT SOLUTIONS NZ LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND DAMAGES. IF YOU ARE DISSATISFIED WITH THESE TERMS OF USE, THE PRIVACY POLICY REFERENCED HEREIN, THE APPLICATION SERVICE OR ANY OF ITS CONTENTS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE APPLICATION SERVICE. BY USING THE APPLICATION SERVICE YOU ACKNOWLEDGE YOUR ASSUMPTION OF ALL RISK OF SUCH USE. ABSENT APPLICABILITY OF THE FIRST SENTENCE OF THIS PARAGRAPH, IN NO EVENT SHALL EVENT SOLUTIONS NZ LTD’ AGGREGATE LIABILITY TO YOU (WHETHER IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE USE OF THE APPLICATION SERVICE, SOFTWARE CLIENT AND/OR CONTENT EXCEED FIVE HUNDRED UNITED STATES DOLLARS (US$ 500.00). THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS. APPLICABLE LAW MAY LIMIT OR DISALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, AND SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, EITHER IN WHOLE OR IN PART.
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12. ARBITRATION
If any dispute, claim or controversy arises under this Agreement, such dispute shall be resolved by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then pertaining, except where such rules conflict
with this section, in which case this section shall control. Any court with jurisdiction shall enforce this section and enter judgment on any award. The arbitrator shall be selected within twenty (20) Business Days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within forty-five (45) days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight (8) months from selection of arbitrators or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the Parties. The arbitration shall be held in San Francisco County, California and the arbitrators shall apply the substantive law of the State of California, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act.
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13. STATUTE OF LIMITATIONS.
CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF USE, OR USE OF THE APPLICATION SERVICE OR THE CONTENT, MUST BE MADE WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE FOREVER BARRED.
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14. CLASS ACTION/JURY WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
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15. AMENDMENT; WAIVER
These terms may not be amended or waived with respect to you, except in a written document signed by Event Solutions NZ Ltd.
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16. RIGHT TO MODIFY
Notwithstanding anything to the contrary elsewhere in these terms, Event Solutions NZ Ltd reserves the right, at any time and from time to time, without notice and in its sole discretion, to modify, expand, suspend or terminate (in whole or in part) the Application Service, Software Client and/or Content.
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17. RIGHT OF TERMINATION
Notwithstanding anything to the contrary elsewhere in these terms, Event Solutions NZ Ltd reserves the right, for any reason or no reason, without notice and in its sole discretion, to terminate your account and license to use the Application Service, Software Client and/or Content, and to block or prevent future access to and use of the Application Service, Software Client and Content.
18. NO IMPLIED WAIVER
Event Solutions NZ Ltd’ failure to enforce any right or provision in these terms will not constitute a waiver of such provision, or any other provision of these terms.
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19. ENTIRE AGREEMENT
These terms constitute the entire agreement between Customer and Event Solutions NZ Ltd regarding the subject matter hereof, govern Customer’s use of the Application Service, Software Client and Content, and supersede any prior agreements between Customer and Event Solutions
NZ Ltd regarding the same subject matter.
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20. SEVERABILITY
If any part of these terms is held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
21. SURVIVAL
All provisions of these terms which by their nature should survive expiration or earlier termination will survive such expiration or earlier termination, including but not limited provisions regarding ownership, disclaimers of warranty, and limitations of liability.
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Contact Information
Event Solutions NZ welcomes your comments regarding these third party terms. If you believe that Event Solutions NZ has not adhered to this Statement, please contact info@eventsolutions.co.nz. We will use commercially reasonable efforts to promptly determine and remedy the problem.
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