User's Acknowledgment and Acceptance Of Terms DEFINITIONS
This Customer Agreement (this “Agreement”) is entered into by and between Multidi Productions LLC, a California limited liability corporation with mailing address at 699 Pennsylvania Ave, Apt 9, San Francisco, CA 94107-2973 (“Company”) and the entity or individual using this website (such entity, the “Customer”).
BY USING OR ACCESSING THE SERVICE, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY CUSTOMER TO BIND CUSTOMER TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND ONLY USE THE SERVICE IF YOU AGREE THAT CUSTOMER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
“Content” - means any and all data, information, content and materials uploaded or imported into the Service by or on behalf of Customer or a User.
“Effective Date” - means the start date set forth on the Order Form.
“Initial Term” - means the period of time set forth on the Order Form as the term of the Order Form.
“Intellectual Property Rights” - means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
"Service” - means the website hosted and made available by Company which allows for the registration to one or more events.
“User” - means an individual (such as a client or employee) who accesses the Service
CONTENT & USAGE DATA Provision of Service
Subject to all terms and conditions of this Agreement, Company shall provide Customer the right to access and use the Service during the Term, solely: (i) for Customer’s own use; (ii) in the manner enabled by Company; and (iii) in accordance with all applicable documentation, any usage limitations set forth in the Terms of Service, and any reasonable rules or guidelines that Company may provide. Company reserves the right to modify and update the features and functionality of the Service from time to time in its sole discretion. Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Service. Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Service.Restrictions
Customer acknowledges that use of the Service is provided only for Customer’s use in direct relation to Customer’s registration for events, and agrees not to use the Service for the benefit of any third party. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Service, make the Service available to any third party or use the Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service, (iii) create derivative works based on the Service; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Service; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Service; or (vii) use the Service to develop a competitive product offering. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Service, except solely to the extent as may be specifically enabled and authorized by the Company. Suspension/Termination
Without limiting the generality of Section 7.2, Company may suspend, limit or terminate Customer’s access to or use of the Service and/or terminate this Agreement at any time if: (i) Customer’s bandwidth usage exceeds 100 GB/month or significantly exceeds the average bandwidth usage (as determined solely by Company) of other Company customers; (ii) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (iii) Customer attempts to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other customers of the Service or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation. Accounts
Customer is responsible for the activities of any and all persons accessing the Service using any user name and password issued to Customer. Customer shall use, and shall instruct its Users to use, all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised. Third Party Services
The Service may include features or functionality that interoperate with online services operated by third parties such as Facebook and Twitter (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Customer acknowledges that interoperability with Third Party Services is provided as a convenience and does not constitute material functionality of the Service or form any basis for the payment of Fees hereunder. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Service in connection with Third Party Services complies with all policies, terms and rules applicable thereto. Support
Provided that Customer timely pays all Fees due hereunder, Company shall provide during the Term reasonable technical support to Customer regarding the use of the Service during Company’s normal business hours via e-mail sent to [email protected]
While Company shall use commercially reasonable efforts to ensure the ongoing availability of the Service, Company makes no representation, warranty or guarantee regarding the continuous availability or performance of the Service. Customer acknowledges that the Service may be unavailable for use from time to time without notice to Customer.
Control Customer acknowledges and agrees that Company has no obligation to monitor or edit the Content, and that as between the parties Customer is solely responsible therefor. Company reserves the right to remove any Content which Company becomes aware may violate the terms of this Agreement, violate any law, rule or regulation or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right. Customer acknowledges that the Company responds to allegations that copyrighted material has been shared through the Service without authorization from the copyright holder in accordance with the safe harbor set forth in the Digital Millennium Copyright Act, pursuant to Company’s DMCA policy located at https://artay.me/dmca. The DMCA Policy is hereby incorporated into this Agreement. Ownership and License As between the parties, Customer shall own all right, title and interest in and to Content. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Content in connection with Company’s operation of the Service and as otherwise authorized herein. Company may use and disclose Content as follows: (i) Company may use Content for Company’s internal business purposes (such as analyzing usage of and informing the development and improvement of Company’s products and services); (ii) Company may disclose Content to its third party service providers that assist it in making the Service available as is reasonably necessary for such assistance; and (iii) Company may disclose Content as may be required by law or legal process.Usage DataAs between the parties, Company shall own all right, title and interest in and to all data collected by Company in connection with the operation of the Service and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often Company and Users use the Service and which Service features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Customer or any User without Customer’s consent other than (i) disclosure to the Company’s third party service providers who use it for the benefit of Company and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.Back-UpsCompany is not obligated to provide access to Content following any expiration or termination of this Agreement. Customer is responsible for making such back-ups of Content as Customer may deem appropriate.SecurityCustomer acknowledges that: (i) the Service uses the Internet for data transfer and Internet-connected servers to store Content; (ii) while Company uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, Company does not represent or warrant the security of the Content.
FeesShould portions of the Service require fees, Customer shall pay Company the Fees as set forth in each Order Form. All recurring monthly Fees under an Order Form shall be due and payable in advance of the applicable month. All other Fees are due and payable in arrears except to the extent otherwise set forth in an Order Form or SOW.Payment TermsCompany shall invoice Customer for Fees on a calendar monthly basis, with each invoice provided on or after the end of each month and covering Fees accruing during such month. Customer agrees to pay each invoice within thirty (30) days of the invoice date, provided that recurring monthly Fees under an Order Form must be received by Company prior to the first day of the applicable month regardless of the invoice date. All payments will be made in U.S. dollars. Any amounts due to Company under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.
As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Service (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by Company prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Company after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Service or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other compensation to Customer.TERM; TERMINATION
REPRESENTATIONS AND WARRANTIES Term
This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the Initial Term. At the end of the Term, this Agreement shall automatically renew for successive periods of one year each unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the renewal date (such renewal periods and the Initial Term, collectively the “Term”). The Fees due hereunder shall automatically adjust for each renewal period in accordance with Company’s then-standard price list for the Service at the time of the renewal.Termination
Effect of Termination.
Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2 through 2.6, 3, 5 (with respect to accrued but unpaid amounts), 6, 7.3, 8, 9, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement.
MutualEach party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.CustomerCustomer represents and warrants to Company that: (i) it has all right, title, and interest in and to the Content necessary for its use in connection with the Service; (ii) it shall not use the Service in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection or the CAN-SPAM Act; and (iii) the Content (including the storage, reproduction, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party or (y) slander, defame, or libel any person.
Customer agrees to, at its own expense, defend, indemnify and hold harmless Company and its directors, officers and employees from and against any liabilities, damages, losses, judgments, costs, expenses (including reasonable attorneys fees), claims, actions, demands and suits arising out of or relating to any actual or alleged breach by Customer of any covenant, representation or warranty of this Agreement. DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE.LIMITATION OF LIABILITY
COMPANY SHALL NOT BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 12 CONSTITUTE A FUNDAMENTAL BASIS OF THEIR BARGAIN. MISCELLANEOUS
Relationship of the PartiesThe parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever. Third Party BeneficiariesNothing herein shall give, or is intended to give, any rights of any kind to any third parties. AssignmentCustomer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer or similar transaction shall be deemed to constitute an attempted assignment of this Agreement. Company may freely assign this Agreement. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors. Force MajeureCompany will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.NoticesAll notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to Company) the Company address noted in the preamble of this Agreement and (with respect to Customer) to Customer’s address set forth in the Order Form. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.AmendmentsAn amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by Company electronically through the Service and accepted in “click-to-agree” form by Customer. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.ConstructionSection headings are for reference purposes only, and should not be used in the interpretation hereof. Severability; Wavier; CounterpartsIf any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. Governing Law; JurisdictionThis Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in San Francisco, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively. Entire AgreementThis Agreement, inclusive of the Order Form, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.