Service Agreement
PrintHosted Software License & Services Agreement
This Hosted Software License & Services Agreement (“Agreement”) is made effective as of the date of your online acceptance (“Effective Date”) and entered into between The Active Network, Inc., 10182 Telesis Court, San Diego, CA 92121 (“Active” or “we” or “us”) and the entity or organization on whose behalf you are entering into this Agreement (“you” or “your” or “Agency”). Active agrees to provide you the Services (as defined below) subject to the following terms and conditions. Please read this Agreement carefully. By electronically agreeing, you acknowledge that you have the authority to enter into it on behalf of the Agency.
1. Services. Active will provide you with access to certain of its hosted software products (“Products”) as well as applicable related services and support (“Services”) based on the functionality, features, options and fees related to the Products and Services you have elected to receive. To assist us in the delivery of the Products and Services, you agree to provide us with certain information requested by us relating to your organization. Any and all software or hardware provided under this Agreement as part of the Products are deemed delivered F.O.B. origin, which for software will typically be an Active provided downloadable FTP link.
2. License to Intellectual Property/Promotion.
a) Active shall retain all right, title and interest in and to its Products and any underlying software, patents, copyrights, trademarks, database right, service marks, logos and trade names worldwide (“Intellectual Property”) subject to the limited license provided by this Agreement. You shall use the Intellectual Property only as expressly permitted by this Agreement, and shall not alter the Intellectual Property in any way, or act or permit action in any way that would impair Active’s rights in its Intellectual Property. You acknowledge that your use of the Intellectual Property shall not create in you or any other person any right, title or interest in or to such Intellectual Property. Any goodwill accruing from the use of the Intellectual Property shall inure solely to the benefit of Active.
b) Active hereby grants to you a limited, non-exclusive, non-transferable license (i) to use the Products solely in accordance with Active’s specifications, and (ii) to display, reproduce, distribute and transmit in digital form Active’s name and logo in connection with promotion of the Products and/or Services as communicated to you by Active. You hereby grant to Active a limited non-transferable, worldwide license to use, display, reproduce, distribute, modify and transmit in digital or printed form information provided by you relating to your organization, including your organization’s name, trademarks, service marks and logo, in connection with the implementation and promotion of the Services and the promotion of your organization. You will make reasonable efforts to promote and encourage adoption of the Services, including displaying Active’s name and logo in any newsletters, printed registration forms or mailings provided by you to prospective participants.
c) You agree to promote Active as the preferred and exclusive provider of the Products and Services for your organization. You shall promote the availability of online registration (e.g. by inserting the following statement in any online or print media related to your event or activity: “Online Registration Powered by Active.com”) and display Active’s name and logo in any newsletters, marketing materials, printed registration forms, mailings and websites provided by you to prospective Participants.
d) Agency elects to receive notifications of free product, promotional items and giveaways through the Active program known as ActiveRewards. Active will offer you opportunities for free product, promotional items and giveaways at our event(s) or facility(ies) as applicable, the exact manner and type of which will be mutually agreed upon by you and Active upon your acceptance of a particular program.
3. Information Security.
(a) Active collects certain information, including names, addresses, credit card information and other information required by you and for the delivery of the Products and Services, from individuals registering for your event or activity through the hosted website(s). Such information shall be stored on a secure remote server. You may access this information at any time by downloading it from our servers using your private password and “login” identifier. If you are unable to access your registrants’ information through the event director portion of the hosted website, Active will make available such information to you via e-mail, fax or airmail upon request. You will be responsible for protecting the privacy and security of any information that you retrieve from our servers and shall prevent any unauthorized or illegal use or dissemination of such information. All information collected by Active shall be jointly owned by Active and you.
(b) Active's use of the collected information shall further include the right to:
(i) communicate with your clients that have consented to receive information from Active via an opt-in process or have initiated a request for information from Active as part of their use of Active’s services;
(ii) use the information in an aggregated form for purposes of analysis of Active's products and services;
(iii) distribute the information for use by Active’s contracted third parties and vendors that provide additional products and services that are required to be delivered under this Agreement or as are requested by you or your clients; and
(d) use, display, distribute or transmit any particular individual information where the individual has consented to such use and owns the particular personal information collected about that individual.
4. Privacy.
(a) Each party shall comply with all applicable laws, regulations and guidelines governing online privacy, including Active’s privacy policy as published on its website, in fulfilling its obligations hereunder and in collecting and using personal information about users of the hosted website.
(b) In this section, "User Data" is defined as 'personal data' (as that term is defined in the Data Protection Act 1998) of you or your clients.
(c) Each Party will: (i) obtain and maintain all appropriate registrations and consents under the Data Protection Act 1998 in order to allow that party to perform its obligations under this Agreement; (ii) process User Data in accordance with the Data Protection Act 1998; and (iii) use its reasonable efforts to make sure that no act or omission by it, its employees, contractors or agents results in a breach of the obligations of either party under the Data Protection Act 1998.
(d) Where Active acts as a 'Data Processor' (as defined in the Data Protection Act 1998) of User Data, Active will: (i) ensure that the User Data is kept confidential and reasonably secure in accordance with this Agreement; (ii) only process User Data for the purposes of performing its obligations under this Agreement and in accordance with the terms of this Agreement, subject to Active's rights under section 3 of this Agreement; and (iii) ensure that the User Data is not disclosed to any unauthorised third parties. (e) You will ensure that you obtain all necessary consents from the relevant individuals before transferring User Data to Active.
5. Fees.
a) Active shall collect registration fees charged by you for individuals that register for your activities and events online through the hosted website and remit to you those sums to you, less Active’s service fees provided as consideration for the Products and Services. All fees due to Active as consideration for its delivered Products and Services are non-refundable. All registrations are calculated on a per single registrant per single event basis. Active also has the right to charge fees owed to it by you if your organization is not meeting its agreed volume commitments throughout each year and may collect those funds via invoice, or directly by netting them from any account balance you maintain with Active. Active may also reimburse itself for any credit card charge backs or overdue fees owed by you out of the registration fees it collects on your behalf and/or by debiting your account. All fees and prices listed are in Euros unless otherwise specified. The prices listed are for the current version of the Products and include improvements and enhancements to the delivered version of the Products provided under this Agreement as available and provided you have maintained a current agreement with Active.
b) Products and Services prices may change for any new Products and Services as well as significant upgrades and updates that are not deemed by Active as supported version enhancements. Prices may be increased up to 5% annually.
c) Unless you provide Active with a valid and applicable exemption certificate for your Agency, you will be solely responsible for, and will pay, any and all use, excise, sales or privilege taxes, duties, value added taxes, fees, assessments or similar liabilities however denominated chargeable by a governmental authority as a result of any service or deliverable provided under this Agreement, exclusive of taxes on Active’s net income.
d) In the event you are entering into this Agreement and seeking the Services for the benefit of a third-party event or organization (“Third Party Beneficiary”), you agree as follows: (i) we may send registration fees collected by us directly to the Third Party Beneficiary, and (ii) you shall indemnify us for any claims, loss or expenses (including legal fees) brought by the Third Party Beneficiary that relate to or arise from your negligence, wrongdoing or lack of authority to act on behalf of such third party.
6. Support and Service Fees. All Fees under Agreement that are not directly collected by Active as part of the registration fees will be due from you within 30 days of invoice date. Any Fees rendered later than this deadline shall accrue interest at the annual rate of 10% per annum. In the event of delay in paying a Fee, you shall reimburse Active for any legal fees incurred by Active in its collection efforts. Active, at its option, may debit from your account any overdue amounts owed by you to Active from funds collected by Active on your behalf.
7. Disclaimer of Warranty/Limitation of Liability.
(A) ACTIVE EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE OF ITS PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET YOUR REQUIREMENTS. SUBJECT TO CLAUSES 7(C) AND 9, ALL PRODUCTS AND SERVICES OF ACTIVE ARE PROVIDED TO YOU ON AN “AS-IS” BASIS WITHOUT WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, CONFORMANCE WITH DESCRIPTION OR FITNESS FOR A PARTICULAR PURPOSE. SUBJECT TO CLAUSE 7(C) ACTIVE SHALL NOT BE LIABLE (IN CONTRACT, TORT INCLUDING NEGLIGENCE, MISREPRESENTATION OR OTHERWISE) FOR (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR (II) LOST PROFIT DAMAGES.
(B) SUBJECT TO CLAUSE 7(C), ACTIVE’S TOTAL LIABILITY (IN CONTRACT, TORT INCLUDING NEGLIGENCE, MISREPRESENTATION OR OTHERWISE) FOR ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO:
(I) THE AMOUNT OF FEES PAID OR PAYABLE BY YOU AS CONSIDERATION FOR THE PRODUCTS AND SERVICES PROVIDED HEREUNDER DURING THE TWO YEARS PRECEDING THE LAST INCIDENT GIVING RISE TO THE LIABILITY; OR
(II) IF THE AMOUNT REFERRED TO IN (I) CANNOT BE CALCULATED ACCURATELY AT THE TIME THE RELEVANT LIABILITY IS TO BE ASSESSED, OR IF IT IS LESS THAN €15,000, TO €15,000.
(C) NEITHER PARTY'S LIABILITY:
(I) FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THAT OF ITS SERVANTS OR AGENTS;
(II) FOR FRAUDULENT MISREPRESENTATION; OR
(III) IN RELATION TO ANY IMPLIED TERM AS TO TITLE OR QUIET ENJOYMENT IN RELATION TO ANY GOODS SUPPLIED UNDER THIS AGREEMENT
IS EXCLUDED OR LIMITED BY THIS AGREEMENT, NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY.
8. Term and Termination. The term of this Agreement shall be for 3 years from the Go-Live Date of the Hosted Software, with automatic renewals for 3 year terms thereafter (each a “Renewal Term”) until either party gives written notice to terminate this Agreement no less than 12 calendar months prior to the commencement of a Renewal Term. Either party may terminate this Agreement: (a) upon a material breach by the other party if such breach is not cured within thirty (30) days following written notice to the breaching party; or (b) where the other party is subject to a filed bankruptcy petition or formal insolvency proceeding that is not dismissed within thirty (30) days.
9. Representations and Warranties. Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this Agreement and to perform its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party. Active warrants that when utilized by Agency in a manner authorized hereunder, the Software will conform substantially to the functional specifications set out in documentation produced by Active for ninety (90) days from delivery of the Software (“Warranty Period”). Active’s sole obligation and liability hereunder with respect to any failure to so perform will be to use reasonable efforts to remedy any non-conformity which is reported to Active in writing by Customer within that Warranty Period.
10. Exclusivity. Active will be the sole and exclusive provider of products providing substantially similar functionality to the Products and of services substantially similar to the Services for the term of this Agreement. You further grant Active a right of first refusal to match or better any offer of similar products or services as provided by Active hereunder and if Active elects to exercise such option, you agree to procure such products or services from Active.
11. Indemnification. Active agrees to indemnify you against all damages and costs (including reasonable legal fees) finally awarded against you (or finally settled upon) and arising from any claim brought against you by a third party alleging that the Product(s) directly infringe(s) any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret. If any claim that Active is obligated to defend has occurred or, in Active's opinion, is likely to occur, Active may, at its option and expense either (1) obtain for you the right to continue to use the applicable Product(s), (2) replace or modify the Product(s) so it becomes non-infringing, without materially adversely affecting the Product’s specified functionality, or (3) refund a pro-rata portion of the fees paid by you based on your lost use and terminate this Agreement. Active’s indemnification obligations hereunder are conditioned upon (A) prompt written notice by you of the existence of a claim, suit, action or proceeding (each a "Claim") for you seek indemnification; (B) sole control over the defense or settlement of such claim by Active; (C) the provision of assistance by you at Active’s request to the extent reasonably necessary for the defense of such claim and (D) Agency not admitting liability or otherwise prejudicing the defense of the claim.
12. Dispute Resolution. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation between executives who have authority to settle the dispute. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within ten (10) business days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and the response shall include (i) a statement of each party’s position and a summary of arguments supporting that position, and (ii) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within five (5) business days after delivery of the disputing party’s notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. The foregoing procedure shall not apply to either party’s attempt to obtain provisional equitable relief in the form of an injunction or specific performance.
13. Miscellaneous. Any notices shall be in writing by fax or airmail. This Agreement is non-assignable without the consent of the other party, except that Active may without consent assign: (i) its rights to receive payments; or (ii) the Agreement in connection with any sale of or any other transaction involving the transfer of more than fifty percent of its voting securities or assets. This Agreement shall be governed by the laws of England. In the parties submit to the non-exclusive jurisdiction of the English courts. This Agreement contains the entire understanding of the parties regarding the subject matter, other than statements made fraudulently and can only be modified by a subsequent written agreement executed by both parties. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable legal fees. Sections 2, 7, 9, 11 12 and 13 of this Agreement shall survive any termination or expiration of this Agreement. If one or more of the provisions of this Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement. Neither this Agreement nor any attachment may be modified or amended except by the mutual written agreement of the parties. No waiver of any provision of this Agreement or any attachment shall be effective unless it is in writing and signed by the party against which it is sought to be enforced. Neither party will be deemed to be in default hereunder, or will be liable to the other, for failure to perform any of its obligations under this Agreement for any period and to the extent that such failure results from any event or circumstance beyond that party’s reasonable control, including acts or omissions of the other party or third parties, natural disasters, riots, war, civil disorder, court orders, acts or regulations of governmental bodies, labor disputes or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines, or other equipment failure.