These Terms & Conditions (the “Terms”), are by and between Convene Technology, LLC, a Delaware limited liability company (“Convene”) and the person or organization agreeing to these terms (“Client”). By accepting these Terms, signing an Event Order, or using the Virtual Event Services, Client represents that they have the authority to bind the Client to these Terms and the applicable Event Order (the Terms and the Event Order, together, the “Agreement”). Convene and Client may be referred to herein collectively as the “Parties” or individually as a “Party.”
“Affiliates” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with, such Party.
“Account Data” means data that Convene collects about Client and/or its Participants that: (i) such parties provide to Convene in connection with the use or administration of the Virtual Event Services; or (ii) relates to such parties’ usage of the Virtual Event Services. For example, Account Data may include a Participant’s name, email address, and analytics data associated with their use of the Virtual Event Services.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Client Data; or (ii) Client’s and/or its Participants’ use of the Virtual Event Services, including, without limitation, any usage data or trends with respect to the Virtual Event Services.
“Client Data” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, recorded, transmitted or otherwise provided by or on behalf of Client through the Virtual Event Services or to Convene in connection with Client’s use of the Virtual Event Services, but excluding, for clarity, Account Data, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Convene and made available through or in connection with the Virtual Event Services. Client Data may include data imported from third party services used by Client.
“Convene IP” means the Virtual Event Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Virtual Event Services, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Documentation” means any user guide, help information and other documentation and information regarding the Virtual Event Services that is delivered by Convene to Client in electronic or other form, including through the Platform or otherwise through the Virtual Event Services, and including any updates provided by Convene from time to time.
“Event Order” means the Convene Virtual Meeting Agreement entered into by Convene and the Client with respect to the applicable Virtual Event.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), trademarks, inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Participant” means an individual or entity who attends a Virtual Event or uses the Virtual Event Services provided to Client hereunder, either on behalf of or at the invitation of Client, which may include, for example, Client’s employees, agents, customers, and guests.
“Platform” means Convene’s proprietary software platform known as “Virtual Meetings”.
“Use Levels” means the limits or other measurements or conditions of permitted use for the Virtual Event Services, as set forth in the Event Order, including, without limitation, with respect to the maximum duration and Participant limit of the Virtual Event.
“Virtual Event” means an event hosted on the Platform.
“Virtual Event Services” means (a) Convene’s webcasting service that enables Client to broadcast or stream video and audio live or on-demand in connection with a Virtual Event made available through the Platform, (b) consulting and support services that assists with planning and delivery of Virtual Events, including real-time technical support for the Client (and any presenters designated by the Client) and a dedicated Production Manager and Technology Director during the Virtual Event, and/or (c) any other services specified in the Event Information Sheet provided by Convene to Client in connection with a Virtual Event.
2. Virtual Event Services; Access and Use.
a. Virtual Event Services. Subject to the terms and conditions of this Agreement, Convene hereby grants Client a limited, non-exclusive, non-transferable right to access and use the Virtual Event Services during the Term in accordance with this Agreement and the Documentation, solely for Client’s personal, business and/or professional purposes in accordance with, and subject to, the Use Levels.
b. Use Restrictions. Client will not at any time and will not permit any person (including, without limitation, Participants) to, directly or indirectly: (i) use the Virtual Event Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) copy, modify or create derivative works of the Virtual Event Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Virtual Event Services, in whole or in part; (iv) frame, mirror, sell, resell, rent, lease, loan, or license rights to access and/or use the Virtual Event Services to any third party, or otherwise allow any third party to use the Virtual Event Services for any purpose other than for the benefit of Client in accordance with this Agreement; (v) use the Virtual Event Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law or remove any title, trademark, copyright, or restricted rights notices or labels; (vi) interfere with, or disrupt the integrity or performance of, the Virtual Event Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Virtual Event Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Virtual Event Services features provided by Convene for use expressly for such purposes; (viii) use the Virtual Event Services, Documentation or any other Convene Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Virtual Event Services, (ix) post or transmit any communication or solicitation that is illegal, obscene, threatening or designed to obtain password, account, or private information from any other user, or that constitutes spam, (x) use the Virtual Event Services or any Convene IP to engage in any illegal or inappropriate activity, or (xi) expose Convene to any malware, including viruses, worms, or any other malicious computer programming codes that may damage Convene or third-party systems or data. Client shall be responsible for all activities that occur under Client’s account and for all actions of Client and Participants.
d. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Convene reserves and, as between the parties will solely own, the Convene IP and all rights, title and interest in and to the Convene IP. No rights are granted to Client hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
e. Access. Except as expressly agreed to by Convene in writing, Client (and each Participant, as applicable) is responsible for obtaining and maintaining any equipment, software, telecommunications connections, or ancillary services needed to access and use the Virtual Event Services, and all related fees and charges therefor, including without limitation any usage charges, minutes, SMS charges, internet access fees and the like.
f. Cooperation. Client acknowledges that the Virtual Event Services may require the reasonable cooperation of Client personnel, as may be requested by Convene from time to time, and Client agrees to provide or procure such cooperation without unreasonable delay. Client acknowledges that any delay or failure on the part of Client to provide the same will relieve Convene of its obligations with respect to the Virtual Event Services under the Agreement for the pendency of such delay or failure.
g. Limitations. Convene will not be responsible or liable for any failure in the Virtual Event Services resulting from or attributable to (i) Client Data or failures to deliver Client Data to Convene, (ii) failures in any telecommunications, network or other service or equipment outside of Convene’s facilities, (iii) Client’s or any third party’s products, services, negligence, acts or omissions, (iv) unauthorized access, breach of firewalls or other hacking by third parties, or (v) scheduled maintenance or unscheduled emergency maintenance.
h. Modifications. Convene reserves the right to (i) make modifications, revisions or additions to the Virtual Event Services, (ii) discontinue or impose limits on any feature or functionality thereof, or (iii) restrict access to parts or all of the Virtual Event Services, in each case at any time and without notice or liability, and Client’s use of the Virtual Event Services after such modifications, revisions or additions constitutes Client’s agreement to such modifications, revisions or additions.
i. Third Party Services. Certain of the Virtual Event Services may be provided by third party service providers (each such service, a “Third-Party Service”). Client acknowledges and agrees that the license set forth in Section 3(b) below extends to such Third-Party Services. Convene shall not be responsible for any Third Party-Services. Additionally, the Third-Party Services may be subject to separate end user license agreements, terms of service or other user agreements between Client and the applicable Third-Party Service providers (“Third-Party Terms”), and Client is responsible for compliance with all such Third-Party Terms. Convene shall be a third-party beneficiary of all such Third-Party Terms and may directly enforce such Third-Party Terms against Client.
3. Data Protection.
a. Ownership of Client Data. Convene acknowledges that, as between Convene and Client and except as set forth in Section 3(b) below, Client owns and retains all right, title and interest in and to all Client Data.
b. License to Client Data. Client hereby grants Convene a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Client Data solely for the purpose of hosting, operating, improving and providing the Virtual Event Services and Convene’s other related products, services and technologies during the Term.
d. Client Personal Data – Data Processing Terms. To the extent Client Data is “personal data” or “personal information” under applicable data protection laws (“Client Personal Data”), Convene shall: (i) only process Client Personal Data to provide the Virtual Event Services in accordance with the Agreement; (ii) ensure all persons permitted to process Client Personal Data are committed to confidentiality; (iii) ensure that any subcontractor that processes Client Personal Data (each a “Subprocessor”) is bound by a written agreement that is consistent with this Section 3(d) and remain liable for the Subprocessor’s failure to perform its obligations with respect to the processing of Client Personal Data. If Convene engages a new Subprocessor, it will provide Client prior notice and allow Client ten (10) days to object; (iv) implement and maintain commercially reasonable technical and organizational measures designed to protect Client Personal Data; (v) notify Client without undue delay upon becoming aware of any unauthorized destruction, loss, alteration, disclosure of, or access to Client Personal Data; (vi) provide reasonable assistance to Client with (1) any data subject requests relating to Client Personal Data that Client receives or (2) Client’s obligations under Articles 35 and 36 of the EU General Data Protection Regulation (“GDPR”); (vii) upon request, make available to Client reasonable information necessary to demonstrate compliance with the obligations set forth in this Section 3(d) and allow for and contribute to audits by completing a data protection questionnaire of reasonable length; and (viii) delete all Client Personal Data following termination of the Agreement.
e. International Transfers of Client Data. Client authorizes Convene and its Subprocessor(s) to transfer Client Data across international borders, including from the European Economic Area to the United States. If Client Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Client to Convene in a country that has not been found to provide an adequate level of protection under applicable data protection laws, the Parties agree that the transfer shall be governed by the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors (“Processor Standard Contractual Clauses”), the terms of which are herein incorporated by reference. Client shall be the “data exporter” and Convene shall be the “data importer.” The Parties agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Processor Standard Contractual Clauses shall be carried out in accordance with Section 3(d)(vii) of this Agreement; (ii) pursuant to Clause 5(h) and Clause 11 of the Processor Standard Contractual Clauses, Convene may engage new Subprocessors in accordance with Section 3(d)(iii) of this Addendum; (iii) the Subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Processor Standard Contractual Clauses shall be provided only upon Client’s written request; and (iv) the optional clauses are expressly not included. The information required in Appendix 1 to the Processor Standard Contractual Clauses is set forth throughout this Agreement. The information required in Appendix 2 to the Processor Standard Contractual Clauses is set forth in Section 3(d)(iv) of this Agreement. Each Party’s acceptance of this Agreement shall be considered a signature to the Processor Standard Contractual Clauses to the extent that the Processor Standard Contractual Clauses apply hereunder. If required by the laws or regulatory procedures of any jurisdiction, the Parties shall execute or re-execute the Processor Standard Contractual Clauses as separate documents.
f. Account Data. Convene will process Account Data in accordance with Convene’s Privacy Notice, which is accessible at https://convene.com/privacy-policy/.
g. Client’s Use of Data. In connection with the Virtual Event Services: (i) Convene may share Account Data about Participants with Client; and (ii) Client may collect Client Data from or about Participants. Client represents and warrants that it will process such data in accordance with all applicable laws, rules and regulations. To the extent Convene makes available Account Data to Client, Client acknowledges and agrees that it acts as a separate “controller”, “business”, or other similar term under applicable data protection laws. Under no circumstances will the Parties be regarded as joint controllers of Account Data within the meaning set forth in GDPR Article 26, or any similar concept arising under applicable data protection laws. Client shall implement and maintain commercially reasonable technical and organizational measures designed to protect Account Data it receives and shall be solely responsible for remediating any security incident it experiences impacting such Account Data. Where applicable, the Parties acknowledge and agree Account Data is made available to Client pursuant to Section 1798.140(t)(2)(A) of the California Consumer Privacy Act of 2018 (“CCPA”) and is not a “sale” under the CCPA.
h. Restrictions on Use of Account Data. Where Convene makes Account Data about Participants available to Client, Client shall not: (i) use Account Data for its email marketing purposes unless the Participant has indicated it wishes to receive email marketing from Client in the file provided by Convene; (ii) share Account Data with third parties for the third parties’ own purposes unless such sharing and third party use is permitted by applicable laws; or (iii) use Account Data to engage in any activities governed by the Telephone Consumer Protection Act unless Client directly obtains the appropriate consent from each Participant to whom Account Data relates.
i. International Transfers of Account Data. If Account Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred or made available by Convene to Client in a country that has not been found to provide an adequate level of protection under applicable data protection laws, the Parties agree that the transfer shall be governed by the European Commission Decision C(2004)5271 Model Contract Clauses (Controller to Controller) (“Controller Standard Contractual Clauses”), the terms of which are herein incorporated by reference. Convene shall be the “data exporter” and Client shall be the “data importer.” The Parties agree that: (i) Client will process Account Data in accordance with the data processing principles set forth in Annex A of the Controller Standard Contractual Clauses, and hereby exercises the option under Clause II(h) of the Controller Standard Contractual Clauses to this effect; and (ii) the optional clauses are expressly not included. The details of the transfer listed in Annex B are as follows: (1) data subjects: Participants; (2) purposes of the transfer: Virtual Event Services; (3) categories of data: Account Data processed in connection with the Virtual Event Services; (4) recipients: third parties involved with the operation of the Client’s business; (5) sensitive data: if and as applicable, any Account Data that is considered a “special category of personal data” under applicable data protection laws; (6) contact points for data protection enquires: As set forth in Section 11(f) of the Agreement. Each Party’s acceptance of this Agreement shall be considered a signature to the Controller Standard Contractual Clauses to the extent that the Controller Standard Contractual Clauses apply hereunder. If required by the laws or regulatory procedures of any jurisdiction, the Parties shall execute or re-execute the Controller Standard Contractual Clauses as separate documents.
4. Content. Convene reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove content that violates this Agreement, or any applicable policies, laws, or regulations. Client acknowledges and agrees that: (i) it is solely responsible for all content created, transmitted or displayed while using the Virtual Event Services, and for any loss or damage suffered by Convene or any third party relating to the content; and (ii) Convene has no responsibility or liability for deletion or failure to store the content and other communications maintained or transmitted through use of the Virtual Event Services.
5. Feedback. From time to time Client or its employees, contractors, or representatives may provide Convene with suggestions, comments, feedback or the like with regard to the Virtual Event Services (collectively, “Feedback”). Client hereby grants Convene a perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and exploit all Feedback in connection with Convene’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Virtual Event Services.
6. Fees and Taxes. Client will pay all applicable, undisputed fees for the Virtual Event Services on the terms set forth in the Event Order. Except as expressly set forth herein or as otherwise expressly agreed to by Convene in writing, all Fees are non-refundable. Client’s failure to pay the any fees shall entitle Convene to suspend the Virtual Event Services and Client’s right access to the Platform. All payments required by the Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Convene’s net income.
a. Definition. Client agrees that the business, technical and financial information of Convene, including without limitation, the Virtual Event Services and Convene IP, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of the Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of Convene and its licensors (“Confidential Information”). Confidential Information does not include information that becomes known to the general public, through no act or omission on the part of Client.
b. Confidentiality. Except for the specific rights granted by the Agreement, Client shall not access, use or disclose any of the Confidential Information without Convene’s written consent, and shall use at least the standard of care used to protect its information of a similar nature, but not less than reasonable care, including ensuring that Client’s employees and contractors with access to such Confidential Information (i) have a need to know for the purposes of the Agreement and (ii) have been apprised of and agree to restrictions at least as protective of the Confidential Information as the Agreement. Client shall be responsible for any breach of confidentiality by its employees and contractors.
c. Required Disclosure. Nothing herein shall prevent Client from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, Client shall use reasonable efforts to (a) promptly notify Convene in writing of such requirement to disclose and (b) cooperate with Convene in protecting against or minimizing any such disclosure or obtaining a protective order.
8. Limited Warranty and Disclaimers.
a. General. Each Party represents and warrants that (i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to agree to the Agreement and to perform its obligations hereunder, (iii) the Agreement are legally binding upon it and enforceable in accordance with its terms and (iv) the execution, delivery and performance of the Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
b. Client. Client represents and warrants to Convene that Client (i) owns all rights, title and interest in and to the Client Data, or that Client has otherwise secured all necessary rights in the Client Data as may be necessary to permit the access, use and distribution thereof as contemplated by the Agreement and (ii) Client’s use of the Virtual Event Services and Convene IP and all information and data received through the Virtual Event Services or Convene IP, including without limitation all Client Data and Account Data, shall at all times be in accordance with all applicable laws, rules, and regulations.
c. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE VIRTUAL EVENT SERVICES, ACCOUNT DATA, AND ALL CONVENE IP ARE PROVIDED ON AN “AS IS” BASIS, AND CONVENE MAKES NO WARRANTIES OR REPRESENTATIONS TO CLIENT, ITS PARTICIPANTS OR TO ANY OTHER PARTY REGARDING THE VIRTUAL EVENT SERVICES AND ALL CONVENE IP OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONVENE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CONVENE HEREBY DISCLAIMS ANY WARRANTY THAT (I) USE OF THE VIRTUAL EVENT SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA OR (II) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
d. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CLIENT’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PROVISION OF THE VIRTUAL EVENT SERVICES, OR THE CONVENE IP, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
e. Total Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL CONVENE’S TOTAL LIABILITY TO CLIENT AND ITS PARTICIPANTS IN CONNECTION WITH THIS AGREEMENT, THE PROVISION OF THE VIRTUAL EVENT SERVICES, AND THE CONVENE IP EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CONVENE FOR THE VIRTUAL EVENT TO WHICH THE CLAIM RELATES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT CONVENE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
f. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CONVENE AND CLIENT, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
a. Client. Subject to Section 9(d), Client will defend Convene and its affiliates, directors, employees, agents, partners, suppliers (the “Convene Parties”) against any claim brought by a third party (“Claims”) arising from (i) Convene’s authorized use of any Client Data, (ii) Client’s or its personnel’s breach of any of Company’s representations, warranties or obligations hereunder, (iii) any Client Data, including, without limitation, (A) any Claim that the Client Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Client Data violates any applicable law, rule or regulation; (iv) any security incident Client experiences relating to Account Data; (v) any of Client’s products or services; (vi) use of the Virtual Event Services by Client or its Participants in a manner that is not in accordance with this Agreement (or the Documentation, to the extent applicable), including, without limitation, any breach of the license restrictions in Section 2(b), or (vii) Client’s or its personnel’s violation of applicable law, and in each case, Client will indemnify and hold harmless the Convene Parties against any damages and costs awarded against the Convene Parties or agreed in settlement by the Convene Parties (including reasonable attorneys’ fees) resulting from such Claim.
b. Convene. Subject to Section 9(d), Convene will defend Client against any Claim alleging that Client’s access and use of the Virtual Event Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Client against any damages and costs awarded against Client or agreed in settlement by Client (including reasonable attorneys’ fees) resulting from such Claim. Convene’s obligations under this Section 9(b) will not apply if the underlying third-party claim arises from or as a result of: (i) Client’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Client Data; (iii) Client’s failure to use any enhancements, modifications, or updates to the Virtual Event Services that have been provided by Convene; (iv) modifications to the Virtual Event Services by anyone other than Convene; or (v) combinations of the Virtual Event Services with software, data or materials not provided by Convene.
c. IP Remedies. If Convene reasonably believes the Virtual Event Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Convene may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Virtual Event Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Client to continue use. If Convene determines that neither alternative is commercially practicable, Convene may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Client. In the event of any such termination, Convene will refund to Client a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 9 shall constitute Convene’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Virtual Event Services.
d. Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any claim without the Indemnified Party’s prior written approval, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
10. Term and Termination.
a. Term. The term of this Agreement (the “Term”) commences on the Effective Date of the Event Order and continues thereafter until the completion of the Virtual Event Services, unless and until terminated as provided in this Section 10.
b. Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
c. Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (ii) the provisions of Sections 1 (Definitions), 2(b) (Use Restrictions), 2(d) (Reservation of Rights), 2(g) (Limitations), 3(d)(viii), 3(f) – 3(g) (Data Protection), 5 (Feedback), 7 (Confidentiality), 8 (Limited Warranty and Disclaimer), 9 (Indemnification), 11 (Governing Law and Disputes) and 12 (General Provisions) shall survive. Convene has no obligation to maintain or provide Client Data after termination or expiration of this Agreement, and may delete or destroy all copies of Client Data in Convene’s possession or control.
11. Governing Law and Disputes.
a. Governing Law. The terms of this Agreement and the transactions contemplated hereby shall be governed by and in accordance with the law of the State of New York, U.S.A. and the United States, without regard to the conflicts or choice of law provisions thereof.
b. Exclusive Venue. Except that either Party may seek equitable or similar relief from any court of competent jurisdiction (and without the need for that party to post any security or bond in seeking such equitable or similar relief), any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or the breach, termination or invalidity of this Agreement, that cannot be settled amicably by agreement of the parties to this Agreement shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be the Borough of Manhattan, New York, New York, U.S.A. The parties hereby waive their right to trial by jury to the fullest extent permitted by law.
c. Proceedings; Judgment. The proceedings shall be confidential and in English. The award rendered shall be final and binding on both parties and non-appealable. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable.
12. General Provisions.
a. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
b. Entire Agreement. This Agreement is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.
c. Amendment and Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto. Neither Party shall be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving Party.
d. Severable Provisions. Each provision of this Agreement shall be considered severable. To the extent that any provision of this Agreement is prohibited or invalidated, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law.
e. Remedies. Except as specifically provided otherwise herein, each right and remedy in the Agreement is in addition to any other right or remedy, at law or in equity. Each Party agrees that, in the event of any breach or threatened breach of Sections 2(d) (Reservation of Rights), 3(a) or 7 (Confidentiality), the non-breaching Party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
f. Notices. Any and all notices under this Agreement will be given via email and will be effective on the first business day after being sent. All notices will be sent via email to the email addresses specified on the Event Order, except as otherwise provided in this Agreement.
g. Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement (except for any payment obligations) due to any cause beyond its reasonable control, the affected party shall use commercially reasonable efforts to give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
h. Assignment. Client may not assign the Agreement without the prior written consent of Convene, except to any successor to all or substantially all of its business that concerns the Agreement (whether by sale of assets or equity, merger, consolidation or otherwise), but only upon 30 days’ prior written notice to Convene. Convene may assign or transfer the Agreement, in whole or in part, without restriction. The Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
i. No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties and their respective successors and assigns.
j. No Construction Against Drafter. No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any Party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.
k. Publicity. Client hereby grants Convene a limited, non-transferable, non-exclusive license to use Client’s name and logo for marketing or promotional purposes, including but not limited to within lists of customers on Convene’s public-facing website and in marketing and promotional materials, unless Client opts out of such use by Convene, by giving prior written notice to Convene. Such opt-out may not extend to uses made prior to the receipt of such opt-out by Convene.
l. Beta Services. Convene may offer Client access to beta services that are being provided prior to general release (“Beta Services”), but Convene does not make any guarantees that these services will be made generally available. Client understands and agrees that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at Client’s sole risk. Client acknowledges that its use of Beta Services is on a voluntary and optional basis, and Convene has no obligation to provide technical support and may discontinue provision of Beta Services at any time in its sole discretion and without prior notice to Client. For clarity, the following sections of these Terms do not apply to Beta Services: 9(b) (Convene Indemnification) and 9(c) (IP Remedies).
m. Security Emergencies. If Convene reasonably determines that the security of the Virtual Event Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, Convene may temporarily suspend the Virtual Event Services and Convene will take action to promptly resolve any security issues. Convene will notify Client of any suspension or other action taken for security reasons.
n. Recording. The Virtual Event Services may provide functionality that allows Client to record audio and data shared during the Virtual Event sessions. Client is solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality. Convene disclaims all liability for Client recording of audio or shared data.
o. Export Regulation. Client will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Virtual Event Services or related software, or any Client Data, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
p. OFAC. Client hereby represents and warrants that (i) neither Client, nor anyone who directly or indirectly owns a 50% or greater economic or voting interest in Client are or will be, at any time during the Term, an entity or individual listed on the Specially Designated Nationals and Blocked Persons List published by the U.S. Department of Treasury, as updated from time to time or is an entity domiciled under regions sanctioned by the U.S. Department of Treasury, (ii) Client is not nor will be, at any time during the Term, a government official, including without limitation an official or employee of any government, an official of a political party, or a candidate for political office, or a director, officer, employee, or “affiliate” (as defined in regulations under the U.S. Securities Exchange Act of 1934) of a government instrumentality and (iii) Client will not, at any time during the Term, engage in any activity under this Agreement, including the use of the Virtual Event Services provided by Convene in connection with this Agreement, that violates applicable U.S. economic sanctions laws or causes Convene to be in violation of such U.S. economic sanctions laws.
q. Anti-Money Laundering. Client hereby represents and warrants that at all times Client has conducted and will conduct your operations ethically and in accordance with all laws, including but not limited to laws that prohibit commercial bribery and money laundering (the “Anti-Money Laundering Laws”), and that all funds which Client will use to comply with its payments obligations under this Agreement will be derived from legal sources, pursuant to the provisions of Anti-Money Laundering Laws. Client will provide Convene with all information and documents that Convene from time to time may request in order to comply with all Anti-Money Laundering Laws.
r. Anti-Corruption Laws. Neither Client nor any of its directors, officers, employees, agents, subcontractors, representatives or anyone acting on its behalf, (i) has, directly or indirectly, offered, paid, given, promised, or authorized the payment of any money, gift or anything of value to: (A) any Government Official or any commercial party, (B) any person while knowing or having reason to know that all or a portion of such money, gift or thing of value will be offered, paid or given, directly or indirectly, to any Government Official or any commercial party, or (C) any employee or representative of Convene for the purpose of (1) influencing an act or decision of the Government Official or commercial party in his or her official capacity, (2) inducing the Government Official or commercial party to do or omit to do any act in violation of the lawful duty of such official, (3) securing an improper advantage or (4) securing the execution of this Agreement, (ii) will authorize or make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, in connection with this Agreement or the Virtual Event Services. For purposes of this subsection (r), “Government Official” means any officer, employee or person acting in an official capacity for any government agency or instrumentality, including state-owned or controlled companies, and public international organizations, as well as a political party or official thereof or candidate for political office.
s. Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.