EASYVIRTUALFAIR SERVICE TERMS
Updated on May 5 2020
By payment of all or any part of an EasyVirtualFair, LLC (“EVF”) invoice, the Customer set forth on the invoice (“Customer”) accepts and agrees to, and intends to be legally bound by, these Service Terms (also referred to as this “Agreement”), as of the date of the invoice.
NOW THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Service Access. EVF grants to Customer the right to use the service set forth on the invoice (the “Service”) during the Term (defined below). “Term” means (a) for annual fees set forth on the invoice, the initial period of twelve (12) months from the date of the invoice and consecutive, additional twelve (12) month periods thereafter, until either party terminates this Agreement as provided in this Agreement and (b) for one-time fees set forth on the invoice, the period from the date of the invoice through the date of implementation of the Service for Customer’s use.
2. Fees. Customer will pay all fees set forth in the invoice, without setoff or deduction, in accordance with the terms set forth in the invoice. For annual fees set forth on the invoice, EVF may increase such fees prior to each additional twelve (12) month period during the Term, and Customer’s continued use of the Service will constitute Customer’s acceptance of such adjusted fees. Customer will be liable for all costs and expenses (including reasonable attorney fees) incurred by EVF in connection with collecting any fees or enforcing its rights under this Agreement.
3. Customer Responsibilities
3.1. General. Customer will use the Service solely for hosting Customer’s own virtual events, for the number of events, booths/exhibitors and attendees, and subject to other terms, set forth on the invoice.
3.2. Client’s Business. Customer will have sole responsibility and liability for all matters and circumstances relating to Customer’s business, including any relating to its marketing or provision of the Service to, or use of the Service by, exhibitors or attendees, notwithstanding any recommendation or requirement of EVF. Without limiting the foregoing, Customer will use the Service for the purpose for which it is intended and in compliance with all applicable laws (including international laws, including GDPR or any other law relating to use or privacy of personal information) and without violating any rights of any third party.
3.3. Technology Matters. Customer will utilize, and will have sole responsibility and liability for, equipment, software, data communications and other technology or systems that meets the requirements of EVF in connection with the Service (the current version of which is available at www.easyvirtualfair/technology). The Service does not include any of such items (other than the EVF software platform). If required by EVF, Customer will permit EVF to remotely access or monitor Customer’s technology or systems that are utilized in connection with the Service. EVF reserves the right to monitor the Customer’s use of the Service, including use by booth exhibitors or job candidates or visitors.
3.4. Access Security. EVF will provide Service access solely by providing Customer, exhibitors and attendees with a combination of usernames and passwords, which may include social login credentials. Customer will be responsible and liable for any use of, or activities, content, transactions or administration conducted through, accounts of Customer, exhibitors or attendees, whether or not authorized.
3.6. Responsibility for Users. Customer will be responsible and liable for any acts or omissions of exhibitors or attendees or any other users of the Service, including any that result in, or if taken by Customer would constitute, a breach of this Agreement (including use of the Service for the purpose for which it is intended and in compliance with all applicable laws, including international laws, including GDPR or any other law relating to privacy of personal information, and without violating any rights of any third party).
3.7. Promises to Users. Customer will make no representations, warranties or promises to any exhibitors, attendees or any other users of the Service concerning EVF or the Service, other than those made by EVF expressly in writing on its website. Customer will have sole responsibility and liability for any such representation, warranty or promise. Customer will not have any authority (actual or apparent) to obligate or bind EVF in any respect or to enter into any written or oral contracts, agreements or commitments of any nature on behalf of EVF (including with respect to any such users). Customer will be solely responsible and liable for, and EVF will have no obligation or liability whatsoever in connection with, the provision of the Service to any exhibitors, attendees or any other users of the Service (for clarity, EVF’s obligations and liabilities will be solely to Customer pursuant to this Agreement).
3.8. Customer Content. Customer will have sole responsibility and liability for all aspects (including accuracy, legality, non-infringement, and privacy protection) of any text, sound, information, images, artwork, logos, video or other content, materials or media, that is provided by or on behalf of Customer to EVF.
3.9. Service Implementation. EVF will have no obligation or liability with respect to any failure or delay in providing services arising in connection with Customer’s failure to provide any information, items or approvals requested by EVF. Implementation or event dates will be mutually agreed upon by Customer and EVF but are intended to be guidelines and not deadlines, and EVF makes no guarantee that the services will be initiated or available in strict conformity therewith.
4. Data Security. EVF warrants that (i) the Service will be hosted on systems infrastructure that is consistent with commercially reasonable industry practices for comparable service providers of similar services under similar conditions, (ii) personally identifying data that is provided to the Service will be managed by EVF utilizing technical and administrative safeguards designed to protect against unauthorized access to, or disclosure or use of, such data by EVF employees and contractors and against reasonably anticipated third party threats to the security of such data, and (iii) EVF will promptly report to Customer any unauthorized access to (including any breach of systems security), or disclosure or use of, such data, including a description of any mitigation and corrective action to be taken by EVF. Except for breach by EVF of this Section 4, Customer will be solely responsible and liable for the security of personally identifying data of Customer, its employees or contractors, and of exhibitors or attendees, including any breach of such security or any unauthorized disclosure, misappropriation or unauthorized use or access of such data.
5. Service Levels
5.1. Service Level Warranty. EVF warrants that Customer will not experience Downtime (defined below), other than during any interruption that is scheduled by EVF upon reasonable advance notice to Customer, that is caused by acts or omissions of EVF and results in Service availability of less than 99.99% computed over a twelve (12) month period. “Downtime” means a failure of the systems infrastructure through which the Service is hosted, including any of third parties, that results in Customer’s inability to use or access the Service, as monitored by EVF. In the event of a breach by EVF of the warranty set forth in this Section 5.1, Customer’s sole and exclusive remedy will be to terminate this Agreement, with such termination effective upon Customer’s notice to EVF, and Customer will be entitled to a refund of all fees paid for any period after the date of termination.
5.2. Functionality Warranty. EVF will use commercially reasonable efforts, in accordance with the level of priority assigned by EVF, to fix Errors (defined below) as expeditiously as possible under the circumstances. EVF may make changes to the Service from time to time, provided that no such changes will materially impair the overall functionality of the Service. “Error” means a failure of the Service, which is caused by acts or omissions of EVF and confirmed by EVF through reproduction of the failure after notice from Customer, to function substantially in accordance with the descriptions of the features of the Service set forth on EVF’s website from time to time. In the event of a breach by EVF of the obligations set forth in this Section 5.2, Customer’s sole and exclusive remedy will be to terminate this Agreement, with such termination to be effective upon Customer’s notice to EVF, and Customer will be entitled to a refund of all fees paid for any period after the date of termination.
6. Proprietary Rights
6.1. Title to Service. The Service, EVF technology and EVF proprietary rights, including names, trade secrets, software, know-how, ideas, designs, methods or other tangible or intangible material or information, are and remain the valuable property of EVF. EVF will have exclusive ownership of all materials, technology, ideas, inventions or other work product or information that are developed by EVF in the course of providing the Service.
6.2. Warranty Against Infringement. EVF warrants that the Service (other than licensed products included therein) does not infringe any third party’s United States patent, copyright or trade secret and EVF owns or has valid and enforceable licenses to use licensed products included in the Service. In the event of a breach by EVF of the warranty set forth in this Section 6.2, Customer’s sole and exclusive remedy will be to terminate this Agreement, with such termination to be effective upon Customer’s notice to EVF, and Customer will be entitled to a refund of all fees paid for any period after the date of termination.
7.1. Termination Rights. In addition to the termination rights set forth in this Agreement and to any other available rights or remedies, (i) Customer may, in its sole discretion, elect to terminate this Agreement after written notice to EVF describing in reasonable detail a material breach of this Agreement by EVF and the expiration of a period of not less than thirty (30) days in which such breach shall remain uncured, (ii) EVF may, in its sole discretion, terminate this Agreement after written notice to Customer describing in reasonable detail a material breach of this Agreement by Customer, and the expiration of a period of not less than thirty (30) days in which such breach shall remain uncured, provided that any failure by Customer to make timely payment in full of any fees or other amounts due and owing under this Agreement shall be deemed material and there shall be no cure period for any such failure, and (iii) either party may, in its sole discretion, elect to terminate this Agreement upon the other party’s failure to continue to function as a going concern or to operate in the ordinary course of business, or if such party commits an act of bankruptcy within the meaning of the federal bankruptcy laws, or if bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings will be instituted by or against such party.
7.2. Consequences of Termination. Upon termination or expiration of the Term or this Agreement, Customer shall cease use of the Service. Upon or after any such termination or expiration, or any material breach of this Agreement by Customer and the expiration of the cure period above, if any, EVF may, in its sole discretion, elect to shut down the Service or terminate or prevent Customer’s or user access to the Service. Except for the exclusive remedies set forth in Section 5 and Section 6.2, Customer will not be entitled in any circumstances to a refund of any fees or deposits.
7.3. Survival. The obligations of the parties under this Agreement which by their nature would continue beyond the termination or expiration of this Agreement shall survive termination or expiration of this Agreement, including Section 6.1 and Sections 9-11.
8. Insurance. EVF will maintain throughout the Term commercially reasonable commercial general liability insurance and shall provide Customer with evidence of such insurance coverage upon request.
9. Indemnification. EVF agrees to indemnify, defend and hold harmless Customer and its representatives from and against any and all losses, claims, obligations, liabilities, actions, suits, proceedings, demands, judgments, payments, costs and expenses (including court costs, amounts paid in settlement, judgments, and reasonable attorney fees and other expenses) and damages of any kind, nature or description whatsoever (“Damages”) arising out of any breach of this Agreement by EVF. Customer agrees to indemnify, defend and hold harmless EVF and its representatives from and against any and all Damages arising out of (i) any breach of this Agreement by Customer or (ii) any matter for which Customer has responsibility or liability under this Agreement.
10. Limitations of Liability
10.1. NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, RELIANCE, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORESEEABILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
10.2. LIABILITY MAXIMUM. IN THE EVENT EVF WILL BE LIABLE TO CUSTOMER NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIVE REMEDIES HEREIN, EVF’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO EVF FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.3. Warranty Exclusions. Except for the express warranties set forth in this Agreement, EVF does not make, and hereby disclaims, to the full extent permitted by law, any and all express or implied (by operation of law or otherwise) and/or statutory warranties, including warranties of merchantability, fitness for a particular purpose, noninfringement and title and any warranties arising from a course of dealing, usage or trade practice. Without limiting the foregoing, EVF makes no warranty regarding (i) except as set forth in Section 5, the performance or nonperformance of the Service or any component thereof, or any downtime, outage, interruption, availability, malfunction, error or system failure relating to the Service or any component thereof, or any inability to use or access all or part of the Service, or (ii) except as set forth in Section 4, any disclosure, breach, access, loss, compromise, corruption or inaccuracy of any data. EVF disclaims all warranties as to third party software, facilities, servers, systems, and other products, equipment or services, even if any may be used to provided or included in the Service. Customer hereby waives all Damages based on any of the foregoing.
11. Additional Provisions
11.1. Severability and Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
11.2. Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party may assign this Agreement in whole as part, directly or indirectly, without the express prior written consent of the other party, and any attempted assignment without such consent will be void, provided that, either party may, without the consent of the other party, assign all of its rights and obligations under this Agreement to any person or entity that purchases all or substantially all of its assets or any successor entity to such party by way of merger or other business combination. Customer will not (i) license, sell, transfer, distribute or otherwise make available or disclose to any third party the Service or EVF proprietary rights, or (ii) copy, modify, adapt, decompile, reverse engineer, attempt to duplicate or make derivative, competitive or its own works based upon the Service or EVF proprietary rights, including any ideas, features, functions or graphics of the Service.
11.3. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the invoice or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is later.
11.4. Relationship of Parties. EVF and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between EVF and Customer.
11.5. Entire Agreement. This Agreement, including the invoice (which is incorporated into and made part of this Agreement), constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. The term “written” means anything reduced to a tangible form by a party, including a printed or hand written document, e-mail or other electronic format. The word “including” (and correlative words, such as “include” and “includes”) shall not be construed as a term of limitation but shall mean including without limiting the generality of any description preceding such term. The terms “hereby,” “hereof,” “herein” and “hereunder” mean by, of, in and under this Agreement, respectively, and refer to this Agreement as a whole and not merely to the Section or provision in which such term is used. The term “or” will be construed to be inclusive and have the meaning of “and/or”. All references herein to the masculine gender will also include the feminine and neuter, and vice versa, and all references to the singular form will also include the plural, and vice versa, as the context may require. No provision herein will be construed against a party merely because of the role of such party or its counsel in the drafting thereof.
11.6. Amendment. This Agreement may be changed by EVF from time to time. Such changes will be effective upon notice to Customer, including by email, and posting of such changes on EVF’s website. Customer’s continued use of the Service following such notice and posting of changes will constitute Customer’s acceptance and agreement to be legally bound by any such changes.
11.7. Binding Agreement. Each of the parties to the Agreement represents and warrants that all necessary action has been taken to authorize such party’s execution, delivery and performance of the Agreement and that the Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.
11.8. Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under the Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) shall be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity.
11.9. Governing Law. The Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, USA, without regard to its principles of conflicts of laws. Each of the parties to the Agreement hereby submits to the exclusive, personal jurisdiction of either the Federal District Court for the Eastern District of Pennsylvania, the Court of Common Pleas of Philadelphia County, Pennsylvania or any municipal or local court located in such county for all claims, disputes or controversies involving the parties and relating to the Agreement; provided, however, nothing herein shall prevent a party hereto from asserting a claim for indemnification or any other claim hereunder against the other party hereto in connection with a third party action in the same jurisdiction where a third party action has been brought.