The Parties agree to the following Terms of Service. All capitalized terms not defined herein shall have the definitions provided in the Master Services Agreement between the Parties, and along with all Addendums and Exhibits thereto (including, without limitation, these Terms of Service), are referred to herein as “Agreement”.
Relationship of Parties. The relationship of the Parties is one of independent contractors. No employee or representative of a Party shall have any authority to bind or obligate the other Party in any manner whatsoever, or to create or impose any contractual or other liability on the other Party.
Confidentiality. Except as set forth below, all information that is either non-public, confidential or proprietary in nature and identified as “confidential” or “proprietary” at the time of disclosure or which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) is deemed “Confidential Information” of the Disclosing Party. The Receiving Party shall use the Confidential Information solely to fulfill its obligations and exercise its rights under this Agreement, and, except as otherwise provided herein, all Confidential Information shall remain at all times the sole and exclusive property of the Disclosing Party. The Receiving Party shall hold the Disclosing Party’s Confidential Information with at least the same degree of care as it holds its own Confidential Information and shall not make any disclosure of such Confidential Information to any person or entity without the Disclosing Party’s prior written consent except to the Receiving Party’s employees, agents and contractors who have a need to know such information and are subject to enforceable obligations, no less stringent than those set forth herein, to maintain the confidentiality of such information. "Confidential Information" does not include any information or materials disclosed to the Receiving Party by the Disclosing Party which the Receiving Party can demonstrate by means of written evidence: (i) was already rightfully known to the Receiving Party at the time of its receipt hereunder as shown by contemporaneous documents in the Receiving Party's files; (ii) is or becomes generally available to the public other than by means of the Receiving Party's breach of its obligations under this Agreement; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of the Receiving Party as shown by contemporaneous documents in Receiving Party's files without use of or reliance on any Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to any order, subpoena or discovery request; provided that the Receiving Party provides the Disclosing Party prior written notice of such disclosure as soon as practicable after receiving such order, subpoena or discovery request in order to afford the Disclosing Party an opportunity to seek a protective order or to seek to limit the scope of the disclosure; provided further, however, that to the extent that either (i) the Disclosing Party is unable to obtain, or does not timely seek, a protective order, or (ii) the Receiving Party is prohibited by the requirements of such order, subpoena or discovery request from notifying the Disclosing Party, disclosure of such information may be made without liability.
Intellectual Property Rights. The Services are protected by United States and international copyright, trademark and /or patent laws, as well as other intellectual property laws and treaties. The Services are licensed not sold. Subject to the rights expressly granted in this Agreement, each Party retains all right, title and interest in and to their respective intellectual property and proprietary rights. Without limiting the foregoing, Track Rabbit shall retain all right, title and interest in and to the Services and its Marks, and Organizer shall retain all right, title and interest in and to its data and its Marks. In connection with the foregoing, each Party grants to the other a nonexclusive, nontransferable, royalty-free, fully revocable license to use, during the Term, the trademarks, service marks and logos (“Marks”) of the other Party, provided that each Party agrees that (i) such use shall be for the limited purpose of fulfilling its rights and obligations hereunder, (ii) all use of the other Party’s Marks shall inure to the exclusive benefit of the other Party, and (iii) it shall abide by any usage guidelines provided by the other Party in connection with such use.
Third party company, product, and service names may be used or displayed in connection with the Services and owned by third parties (“Third Party Marks”). This Agreement does not grant Organizer any right or license to any Third Party Mark without the prior written consent of the applicable Third Party Mark owner. Marks and Third Party Marks may not be used to disparage any party, product, or service, or in any manner that may damage any goodwill in the Marks or Third Party Marks.
Login and Passwords. Organizer shall be assigned unique login and password information for access to the Services. Organizer is responsible for maintaining the confidentiality of such login and password information, and shall instruct its employees and agents regarding the restrictions on the use and disclosure of such login and password information. Track Rabbit reserves the right to change, or require Organizer to change its login or password for any reason. Organizer shall promptly notify Track Rabbit of any unauthorized use of Organizer’s login or password.
Email and Electronic Messaging. The Services enable Organizer to contact Attendees and other users of the Services, and may enable Organizer to contact third parties via email. Organizer’s use of this aspect of the Service means that you represent, agree, and warrant the following:
Track Rabbit reserves the right to suspend or limit access to the Services in addition to any legal recourse which may apply for failure to abide by the above requirements.
Content. Track Rabbit allows Organizer to publicly post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material through the Services (“Organizer Content”). Organizer is responsible for the Organizer Content that you post on or through the Services, including its legality, reliability, and appropriateness. By posting Organizer Content on or through the Services, Organizer represents and warrants that: (i) the Organizer Content is owned by Organizer and/or Organizer has the right to use it and grant Track Rabbit the rights and license as provided in herein, and (ii) that the posting of Organizer Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.
Organizer retains any and all rights to Organizer Content; however, by publicly posting Organizer Content using the Services, Organizer grants Track Rabbit the right and license to use, reasonably modify for display purposes only, publicly perform, publicly display, reproduce, and distribute such Organizer Content on and through the Services, subject to any other intellectual property license and confidentiality restrictions provided herein. Organizer agrees that this license includes the right for Track Rabbit to make Organizer Content available to Attendees and other users of the Services.
Track Rabbit has the right, but not the obligation, to monitor and reasonably delete Organizer Content that violates this Agreement.
Rules of Use. Organizer agrees to abide by the following rules and responsibilities when using the Services:
Track Rabbit reserves the right to suspend or limit access to the Services in addition to any legal recourse which may apply for failure to abide by the above rules.
Adjustments to the Services. Track Rabbit may, from time to time, make adjustments to the quality and content of the Services, including the addition, modification and removal of certain features of the Services. Track Rabbit is not responsible or liable for the impacts to Organizer for such additions, modifications and/or removals, and does not guarantee or warrant the continued functionality of the Services.
Representations and Warranties. Each Party represents and warrants: (a) that it has the power and the right to enter into this Agreement, to grant all rights granted herein, and to perform its obligations hereunder; and (b) in the performance of its obligations hereunder, it will comply with all applicable laws and regulations. TRACK RABBIT PROVIDES THE SERVICES USING A COMMERCIALLY REASONABLE LEVEL OF SKILL AND CARE. IN DOING SO, TRACK RABBIT ATTEMPTS TO ENSURE THAT THE SERVICES ARE FREE OF BUGS, SAFE, AND GENERALLY AVAILABLE FOR USE. HOWEVER, CERTAIN CIRCUMSTANCES SHALL NOT BE GUARANTEED OR PROMISED WITH REGARD TO THE SERVICES. TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND TRACK RABBIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. FOR ILLUSTRATIVE PURPOSES, TRACK RABBIT MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
Limitation of Liability. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY PROVISION AND OBLIGATIONS UNDER THE INDEMNITY PROVISIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, NOR ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS OR LICENSORS, SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA, LOSS OF GOODWILL, OR COST OF SUBSTITUTE GOODS OR SERVICES, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) OR OTHERWISE, AND REGARDLESS OF WHETHER THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGES.
IN ADDITION, OTHER THAN THE OBLIGATION OF TRACK RABBIT TO PAY OUT EVENT REGISTRATION FEES TO ORGANIZERS PURSUANT TO THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF TRACK RABBIT, ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS OR LICENSORS FOR ALL DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) OR OTHERWISE, WITH RESPECT TO, ARISING OUT OF, OR RELATED TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, SHALL BE LIMITED TO THE TRANSACTION FEES AND PROCESSING FEES PAID TO TRACK RABBIT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE CLAIM; PROVIDED, HOWEVER, NOTHING IN THIS SECTION SHALL LIMIT OR RESTRICT EITHER PARTY’S INDEMNIFICATION RIGHTS OR OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS.
Indemnification. Organizer agrees to indemnify and hold harmless Track Rabbit, its affiliates, subsidiaries, successors and assigns and each of their respective officers, managers, directors, employees, agents, licensors or payment processing partners, from any and all damage, loss, liability, cost, and expense (including reasonable attorneys’ fees and expenses) resulting from any claim, demand, suit, proceeding, or investigation made by any third party (each a “Third Party Claim”) related to or arising out of: (i) Organizer’s material breach of the Agreement; (ii) Organizer’s impermissible use of the Services; (iii) Organizer’s violation of applicable local, state or federal law or regulation, or (iv) payment processing related to Organizer’s events (except to the extent that the Third Party Claim pursuant to this (iv) arises out of negligence or willful misconduct by Track Rabbit or its third party payment processor). Track Rabbit shall promptly notify Organizer in writing of any Third Party Claim made against Track Rabbit, provided that any delay by Track Rabbit in providing such notice shall not limit Organizer’s obligations hereunder, except to the extent such delay materially prejudices Organizer.
Track Rabbit agrees to indemnify and hold harmless Organizer, its affiliates, subsidiaries, successors and assigns and each of their respective officers, managers, directors, employees, agents or licensors, from any and all damage, loss, liability, cost, and expense (including reasonable attorneys’ fees and expenses) resulting from any Third Party Claim related to or arising out of: (i) an allegation that the Services, or any aspect thereof, infringe any patent, copyright or other proprietary right of a third party in the United States of America, (ii) Track Rabbit’s material breach of this Agreement, (iii) Track Rabbit’s misuse or mishandling of Attendee’s payments, or (iv) unauthorized disclosure of Attendee’s data and information. Organizer shall promptly notify Track Rabbit in writing of any Third Party Claim made against Organizer, provided that any delay by Organizer in providing such notice shall not limit Track Rabbit’s obligations hereunder, except to the extent such delay materially prejudices Track Rabbit.
Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of laws principles.
Dispute Resolution. The Parties agree to attempt to resolve any dispute arising out of or relating to the Agreement by negotiation, which negotiation attempt shall occur within thirty (30) days after written notice of the dispute. Any controversy or claim arising out of or relating to this Agreement or the Services, or the breach of this Agreement, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the Expedited Procedures of its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by a single arbitrator who shall be selected according to the applicable rules of the AAA pertaining to the selection of a single arbitrator. The place of the arbitration shall be Wilmington, DE. Each Party shall bear an equal share of the arbitrator’s and administrative fees of arbitration. The award of the arbitrator shall be accompanied by a reasoned opinion. In the event any claim or action is brought for the enforcement of the terms of this Agreement, the prevailing Party shall be entitled to receive judgment for and collect from the losing Party the prevailing Party’s reasonable attorneys’ fees and costs incurred in investigating and prosecuting or defending such claims.
Third Party Services and Sites. Track Rabbit is not responsible or liable for the availability of third party content that is posted or linked to the Services, any third party content or links, or the loss or damages related to the use of third party content or links, regardless of whether such content or links are connected with a Track Rabbit user account, event registration pages, partners, or service providers. In the event that Organizer links its Track Rabbit account with a third party account (e.g. social media), Organizer acknowledges Track Rabbit’s right to access, store, and make available the information Organizer has provided to that third party account in the same manner as if it were Organizer Content, in as much as such information is available through the Services.
Prohibitions - Merchants. Organizer hereby represents and warrants that:
If you cannot represent and warrant to all of the above in this section, you are considered a “Prohibited Merchant” and not eligible to use the Services as they pertain to event organization and payment processing.
Prohibitions – Events. The following events (“Prohibited Events”) are prohibited from the Services, and Organizer agrees not to attempt to utilize the Services in connection with any type of event that:
Prohibitions – Transactions. Certain transactions (“Prohibited Transactions”) are prohibited, and Organizer agrees, warrants, and represents that you will not use the Services to process transactions that:
Prohibitions – Remedies. In the event that Track Rabbit determines that Organizer has conducted a Prohibited Transaction, utilized the Services in connection with a Prohibited Event, and/or are a Prohibited Merchant, Track Rabbit may take one or more of the following actions, at its discretion, and all remedies listed herein may be taken in addition to remedies provided by herein:
Force Majeure. Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or cause beyond reasonable control and without negligence of the Parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
Successors and Assigns. Neither Party may assign, transfer or otherwise convey this Agreement, or any of its rights hereunder, to any entity without the prior written consent of the other Party, and any such attempted assignment, transfer or conveyance without such consent shall be null and void; provided, however, that each Party may assign this Agreement in whole to a successor in interest of all or substantially all of such Party’s business, assets or equity (whether such transaction is consummated by a merger, sale of stock or assets or otherwise) without the consent of, or prior notice to, the other Party. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of each Party.
Entire Agreement; Amendments. This Agreement sets forth the entire agreement of the Parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter, whether written or oral. This Agreement may not be amended unless the amendment is in writing and signed by authorized representatives of both Parties.
Waiver. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving such rights. The failure of either Party to require the performance of any obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not act as a bar to subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
Invalidity. If any provision of this Agreement is held to be invalid, illegal or unenforceable (whether in whole or in part), (i) such holding shall not affect the validity, legality or enforceability of any other provisions of this Agreement, and (ii) such invalid, illegal or unenforceable provision shall be deemed modified to the extent, but only to the extent, necessary to make such provision valid, legal and enforceable.
Survival. All provisions of this Agreement that by nature should survive termination shall survive, including, without limitation, all limitations on liability, releases, indemnification clauses and obligations, disclaimers of warranties, agreements to arbitrate, choice of law and intellectual property rights.