1. SAAS SERVICES AND SUPPORT; OWNERSHIP
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Company shall own and retain all right, title and interest in and to (a) the Services (as described in the Order Form) and Software (as defined below) and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or the Implementation Services (as described in the Order Form) or related support provided by Company, and (c) all intellectual property rights related to any of the foregoing. For avoidance of doubt, the foregoing does not apply to Customer Data (as defined below).
2. REFERENCE ACCOUNT
Customer agrees to serve as a reference account for prospective Welcome customers. Notwithstanding anything to the contrary in this document, Welcome may include Customer’s name, logo or trademarks in marketing materials, customer lists, or other public communications. As a reference account, Customer agrees to participate in the following upon reasonable request by Welcome:
2.1 Providing a corporate logo and quote from a decision maker for use by Welcome in marketing activities and on the Welcome public website (subject to Customer’s approval rights under this Section).
2.2 Development of a case study or testimonial that may be published and/or used as marketing collateral (subject to Customer’s approval rights under this Section).
2.3 At Customer’s discretion, use commercially reasonable efforts to be available for interviews to prospective investors, media or analysts (maximum of 5 interviews, 20 minutes each)
2.4 At Customer’s discretion, use commercially reasonable efforts to be available for interviews to prospective customers (maximum of 3 interviews per quarter, 15 minutes each)
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. For avoidance of doubt, third parties attending events shall not be a breach of the foregoing sentence. With respect to any Software that is distributed or provided to Customer for use on Customer or its affiliates’ premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, fully paid-up license to use such Software during the Term only in connection with the Services.
3.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policies”) available at https://www.experiencewelcome.com/privacy-policy (or its successor website) and https://www.experiencewelcome.com/terms-of-service (or its successor website) and all applicable laws and regulations. The parties hereby agree that the terms and conditions in the Policies are expressly incorporated into the Agreement, and to the extent of conflict, the terms and conditions in this Agreement will either amend or supersede the conflicting term or condition in the Policies, although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the
Services it believes may be (or alleged to be) in violation of the foregoing. Customer may not assign, transfer or provide use of any license(s) granted under this Agreement to a third-party without Company’s prior written consent.
3.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes information regarding features, functionality and performance of the Service. Confidential Information of Customer includes all Customer Data, as defined below. The Receiving Party agrees: (i) to take reasonable precautions to protect Confidential Information against unauthorized use or disclosure, (ii) not to use Confidential Information except as reasonably necessary in connection with the performance of this Agreement or otherwise in accordance with the Disclosing Party’s prior written consent; and (iii) not disclose Confidential Information to any third parties other than the Receiving Party’s employees, agents, and service providers who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder except with the Disclosing Party’s prior written consent. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
5. CUSTOMER DATA
5.1 As used herein, “Customer Data” means information and data that is created or displayed within or uploaded to the Services by Customer or event attendees during or as part of virtual events produced by Customer and hosted through the Services, including text, images, photos, audio clips, chat logs, audio and video recordings, and other content uploaded or shared through the Services during virtual events.
5.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data derived from the Customer Data as part of the Services. Customer hereby grants to Company a non-exclusive, royalty-free license, to access, use, copy, and disclose Customer Data as necessary to provide the Services and the Implementation Services, or otherwise at Customer’s direction. Customer represents and warrants that it has the valid and enforceable right to provide to Company all Customer Data and materials furnished hereunder for use in accordance with this Agreement. Customer represents, warrants and covenants that the Customer Data, at all times during the Term:
(a) is provided to Company in accordance with all applicable laws, including without limitation laws related to audio and video recording, intellectual property, privacy and export control
(b) does not infringe any intellectual property rights
(c) does not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation
(d) does not misrepresent the source of the Customer Data
(e) does not misrepresent Customer’s identity
(f) does not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, or other harmful content intended to damage, detrimentally interfere with, intercept, or expropriate any system, or data.
If Customer becomes aware of any violation of this Agreement in connection with use of the Software or Services, Customer may contact Company at the contact information listed on the Order Form. Company may investigate complaints and violations and take actions it believes are appropriate, including, but not limited to issuing warnings, removing content or terminating accounts or attendance. However, because situations and interpretations vary, Company also reserves the right not to take any action. Customer is solely responsible for all data or other content loaded into or viewable under the Services.
5.3 Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and other information relating to attendees and speakers at virtual events produced by Customer through the Services, and data and insights derived therefrom) on an aggregated and anonymized basis, and Company will be free (during and after the term hereof) to (i) use such information and data internally to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate and de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
6. PRIVACY AND DATA PROTECTION
6.1 Company and Customer shall comply with their respective obligations set forth here (Customer Data Processing Addendum) with respect to the processing of any Personal Data, as defined in Customer Data Processing Addendum, in connection with Company’s provision and Customer’s use of the Services. Provided, however, that Customer agrees that Customer Data will not contain any financial account identifiers (e.g. credit card numbers or bank account numbers), government issued identifiers (e.g. social security or driver’s license numbers,) or other types of sensitive data that is subject to specific or elevated data protection requirements such as the Gramm-Leach-Bliley Act or HIPAA (“Sensitive Personal Data”). Company shall have no liability under this Agreement for Sensitive Personal Data, notwithstanding anything to the contrary herein.
7. PAYMENT OF FEES
7.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
7.2 Company shall bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after receipt of the invoice by Customer. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
8. TERM AND TERMINATION
8.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
8.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment, fraud, negligence, willful default), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided, provided that if this Agreement is terminated part way through the Term due to Company’s fraud, negligence, willful default or material breach (“material breach” being defined as a breach of Sections 4 and/or 9 of this Agreement), Company shall refund Customer for the pro-rata amount of any fees paid in advance that relate to the terminated part of the Term. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company shall delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall
provide seven days’ advance notice in writing or by e-mail of any scheduled service disruption. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. FORCE MAJEURE
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for non-payment not attributable to a force majeure event as described herein), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo or blackout.
Company shall defend, indemnify, and hold harmless Customer and its respective officers, directors, employees, agents, successors, and assigns from and against any third party claims, demands, suits, actions, and proceedings, including any losses, damages, judgments, settlements, expenses (including reasonable attorneys’ fees) and costs awarded by a court of final jurisdiction against
Customer alleging that the use of the SaaS Services in accordance with this Agreement infringes
or misappropriates a third party’s patent rights, copyright, trademark, or trade secrets (provided, however, the foregoing shall not apply to the extent any such third-party claim is based on: (a) misuse or modification of the Services for any use other than its intended purpose or in breach of the terms of this Agreement or (b) information or materials provided by or on behalf of Customer or any
of its affiliates; or (c) Company’s compliance with Customer’s written direction with respect to the manner in which Services are to be performed or the content to be included in the Services; provided that Company shall cooperate with Customer as may be reasonably requested by Customer to mitigate any liabilities arising from any such claim); (ii) resulting or arising out of Company’s violation of applicable laws; or (iii) a breach of Company’s warranties
12. DATA PRIVACY
12.1 No Disabling Code.
Company represents, warrants and covenants to Customer that (a) to the best of Company’s knowledge, no Software or application will contain any Disabling Code (as defined below) at the time of delivery to Customer, (b) Company will not insert any Disabling Code into any Software or application, and (c) Company will use commercially reasonable efforts to
prevent the insertion of Disabling Code into any Software or application. As used herein, “Disabling Code” means any lock, clock, timer, counter, copy protection feature, replication device, “virus” or “worm,” as those terms are commonly used in the computer industry, or other software code that may (i) lock, disable or erase any software, application, programs or data of Customer or its
licensees, (ii) prevent Customer or its licensees from fully using the Software, applications or Services as permitted under this Agreement, or (iii) require action or intervention by Company or any other person to allow Customer, its licensees and its event attendees to use the software and any application as permitted under this Agreement. For the avoidance of doubt, Disabling Code shall not mean a mechanism designed to enforce a Party’s rights under this Agreement.
12.2 Disaster Recovery/Business Continuity.
(a) On or before the Effective Date and thereafter upon Customer’s request, Company shall provide to Customer information pertaining to its disaster recovery/business continuity plans, policies and procedures, including, without limitation, a description of the disaster recovery/business continuity protocols designed to ensure Company’s ability to provide the Services (collectively, the “DR/BC
Plan”). Company shall comply with the DR/BC Plan so as to reasonably ensure that the Services provided to Customer shall not be disrupted. The DR/BC Plan will, in the aggregate be (a) reasonable with respect to the nature of the Services, and (b) in accordance with the provisions of this Agreement. Company shall promptly notify Customer in writing upon learning of any failure to
comply with the DR/BC Plan. (b) Company shall monitor, evaluate and, in its commercially reasonable and professional discretion, adjust its DR/BC Plan in response to relevant changes in technology and internal and external threats to Company, the Services and/or any Customer Data; provided that Company shall not make any change that, alone or in the aggregate, materially and adversely affects the DR/BC Plan. (c) Customer and its designees shall be entitled to conduct documentary reviews related to the
DR/BC Plan of Company. Company shall grant reasonable access to information reasonably required for Customer and its designees to perform such a documentary review and will make personnel available, to the extent reasonably necessary to answer questions or otherwise assist Customer and its designees in performing such a documentary review.
12.3 Information Security.
The following processes and controls should be in place for anything that contains or processes Customer Data:
1. In the event of a security breach, the provider should immediately notify the Customer team within 24 hours of the event being identified.
2. An appropriate password policy that is in line with NIST standards.
3. Multi-factor authentication should be setup for all critical application tooling. This is inclusive of Company’s productivity tool suite (i.e. Microsoft 365, GSuite, etc.), email access, and online file storage access.
4. Multi-factor authentication should be setup for remote network access (i.e. VPN, Citrix, etc.)
5. External and internal penetration tests should be conducted by a reputable third party on a minimum of an annual cadence. An executive summary of results should be available upon
request by the Customer team.
6. Security awareness training should be conducted at least annually with all employees.
7. Phishing training should be conducted multiple times a year with all employees.
8. For any internal or external application development, a robust DevSecOps process should be in place that includes security reviews before any code is moved to production.
13. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY KNEW OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
EXCEPT FOR ANY EXCLUDED CLAIMS NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT
AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. “Excluded Claims” means claims or liabilities arising out
of (a) bodily injury of a person, (b) breaches of the data privacy and confidentiality provisions hereunder, (c) matters that are the subject of indemnification hereunder or (iv) fraud, gross negligence, willful misconduct, or material breach of the agreement provided that claims or liabilities arising out of an Excluded Claim will not exceed $2,000,000.00.
14. USE OF CONTRACTORS
If Company utilizes contractors or subcontractors in the performance of its obligations hereunder,
Company agrees that it shall be responsible for the acts and omissions of its contractors and
subcontractors in the performance of its obligations hereunder.
15. COMPLIANCE WITH LAWS; INSIDER TRADING
Each party shall, and shall cause its affiliates to, comply with all applicable laws, rules and regulations. Company hereby acknowledges that it is aware, and that it shall advise its employees, contractors and subcontractors who provide services to Customer or any of its affiliates under or in connection with this Agreement, that securities laws, as applicable, may prohibit any person who has
received material, non-public information regarding an issuer (or its subsidiaries or affiliates) from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by either party except with the other party’s prior written consent. Neither party may
transfer or assign any of its rights and obligations under this Agreement without the other party’s consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and
modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled
to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.