Engage (“ENGAGE”) Universal Terms and Conditions
- a) Engage (“ENGAGE”) hereby undertakes to provide access to manage or create Web-based events and related projects (collectively, an “Event“) for Client including streaming audio or video over the internet accessible by viewers (“Webcasts“), audio events with visual elements (“Web Conferencing“), virtual trade shows (“VirtualShows“), and virtual briefing centers (“Virtual Briefing Centers”). The Events shall utilize ENGAGE’s application platform (the “Platform“) and other various SN services and tools. “Services” shall mean Webcasts, Web Conferencing, Virtual Shows, Virtual Briefing Centers, the Platform and all other ENGAGE services and tools used to produce an Event. “T&C Agreement” shall mean these Terms and Conditions, and all exhibits, amendments and attachments hereto. “Work Order” shall mean the individual work order, email, or similar document, submitted by Client and accepted by ENGAGE for each new phase of work.
2) Use of Services
- a) In connection with an Agreement, Client may be provisioned one or more accounts on the Platform (“Accounts”). Accounts may only be used by Client and its authorized representatives to create and manage Events and Virtual Environments to be watched, visited or otherwise used, as the case may be, by individuals who access Client’s Events and/or Virtual Environments (each an “Attendee”). Client shall safeguard login credentials to the Accounts and shall be responsible for all use of Services through the Accounts.
b) If the total number of Attendees connected to or attempting to connect to an Event exceeds the “Attendee Limit” (which is presently 2,500 concurrent Attendees, and may be increased by ENGAGE from time-to-time and shall not be decreased), ENGAGE reserves the right to deny additional connections and/or disconnect existing Attendees. Client agrees to notify ENGAGE at least business 10 days prior to any Event for which it desires to exceed the Attendee Limit. Should Client timely notify ENGAGE, ENGAGE will try to accommodate reasonable limit increase requests made by Client for an Event.
c) Should Client and ENGAGE enter into a Value Added Reseller Agreement (“VAR Agreement”) that is governed by these Terms, Client shall be authorized to act as a non-exclusive, independent reseller of the Services listed in such VAR Agreement as provided for in such VAR Agreement, conditioned upon Client complying with its all of its duties and obligations under these Terms and the VAR Agreement.
3) Use Restrictions
- a) Client agrees to use the Platform and Services in compliance with applicable law and shall not: (i) permit any third party to use the Platform or Services except as permitted herein or in an Agreement; (ii) modify, reverse engineer, disassemble, or decompile the Platform, or cause or permit others to do so; (iii) use the Platform or Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or Services; (iv) remove or modify any title, trademark, copyright and/or restricted rights notices or labels from the Platform or Services; (v) create derivative works based on the Platform or otherwise violate ENGAGE’s intellectual property rights; (vi) use Platform or Service on a service bureau basis; or (vii) use the Platform or Services in any manner inconsistent with these Terms.
4) Billing and Payment
- a) Client shall pay all fees specified in an Agreement as well as the fees payable for any additional Services ordered or used by Client. All fees shall be paid in Canadian Dollars, unless another currency is specified in the applicable Agreement.
b) Client understands and agrees that Client incurs the obligation to pay fees by the purchase, not the usage, of Services. Payment obligations are non-cancelable, and except as expressly specified in Exhibit A hereto, paid fees are non-refundable.
c) The fees payable for a Service shall be as set forth in the applicable fee schedule included in the applicable Agreement each a “Fee Schedule”).
d) Should Client order or use a Service not listed on a Fee Schedule, the price for such Service shall be ENGAGE’s then-current full rate price, which Client hereby agrees to pay.
e) All fees are exclusive of taxes, levies, or duties that may be imposed by taxing authorities. Other than taxes based on ENGAGE’s income, Client shall be responsible for paying all taxes, levies, or duties applicable to its purchases from ENGAGE, even if such amounts are not listed in an Agreement. Client shall not be responsible for paying the same to the extent Client has provided ENGAGE with a valid tax exemption or direct pay certificate that exempts Client from such payment. Client shall reimburse ENGAGE for any taxes paid on behalf of Client.
f) If an Agreement does not include billing and payment terms, then with respect to that Agreement (i) ENGAGE shall invoice Client for all fees payable thereunder upon its execution, and (ii) Client shall pay all fees within 30 days of receipt of invoice. Client is responsible for providing complete and accurate billing and contact information to ENGAGE and for notifying ENGAGE of any changes to such information. Client shall provide ENGAGE with written notice of any dispute or disagreement with invoiced fees within 30 days of the date of the applicable invoice. Absent such a notice, Client shall be deemed to have agreed to the invoiced fees.
g) Any amounts invoiced that are not received by ENGAGE by their due date are subject to a finance charge of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, plus all reasonable expenses of collection incurred by ENGAGE, including attorneys’ fees and other legal expenses. Client agrees that ENGAGE may apply monies paid by Client to any amounts owed by Client under any Agreement.
h) Client shall reimburse ENGAGE for all direct third party expenses, costs, cancellation fees and penalties that are imposed on ENGAGE as a result of Client’s cancellation, delaying or rescheduling of Webcasts or other Services.
i) If any amount owed by Client is 30 days or more overdue, ENGAGE may, without liability and without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such Agreement so that all such obligations become immediately due and payable, and suspend Services under such Agreement until such amount is paid in full.
5) Confidential Information
- a) As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Client includes, without limitation, Attendee Data (as defined below). Confidential Information of ENGAGE includes, without limitation, the Services, the Platform, and pricing and other terms related to Services presented to Client by ENGAGE. These Terms and all Agreements shall be Confidential Information of each party. The Receiving Party shall in no way use or disclose any Confidential Information of the Disclosing Party, except as specifically contemplated by these Terms or with the prior written consent of the other party or as required by law.
b) These Terms impose no obligation upon the Receiving Party with respect to the Disclosing Party’s Confidential Information which the Receiving Party can establish by legally sufficient evidence: (i) was, prior to its receipt from the Disclosing Party, in the possession of, or rightfully known by, the Receiving Party, without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public without violation of these Terms or without a violation of an obligation of confidentiality owed to the Disclosing Party; (iii) is obtained by the Receiving Party in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) is independently developed by the Receiving without reference to Confidential Information of the Disclosing Party.
c) Each party understands that the Disclosing Party’s Confidential Information constitutes valuable business assets of the Disclosing Party and the unauthorized disclosure of Confidential Information may irreparably harm the Disclosing Party. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the Receiving Party, the Disclosing Party shall be entitled to seek injunctive relief and any other remedy available at law or equity.
d) Client shall not publish the results of any benchmark of the Services’ performance, except with ENGAGE’s prior written consent.
6) Ownership; Client Information
- a) For purposes of this Agreement, “Intellectual Property” shall mean unpatented inventions, patent applications, patents, copyrights, trademarks, service marks, trade names, trade dress, domain names, know-how, technology, business methods and processes, trade secrets, and all other intellectual property and proprietary rights, and all developments, enhancements, derivatives, improvements, modifications or extensions thereof, anywhere in the world.
b) As between ENGAGE and Client, ENGAGE retains all right, title and interest in and to the Platform, the Services, all other ENGAGE Intellectual Property, and any improvement or modification thereto or thereof regardless of who pays for such improvement or modification. ENGAGE’s licensors and suppliers own all right, title and interest to Third Party Applications (as defined below) that ENGAGE may make available as part of or in connection with the Platform or Services.
c) ENGAGE alone will own all right, title and interest, including all related Intellectual Property, in and to any suggestions, ideas, feedback, improvements, or recommendations created, conceived, or reduced to practice, by or on behalf of the Client or any Attendee, relating to the Platform or other ENGAGE proprietary rights (collectively, “Submissions”).
d) As between ENGAGE and Client, Client retains all right, title and interest in and to all materials and data it enters into the Platform or otherwise provides to ENGAGE under an Agreement, including, but not limited to, slides, audio files, video files, recordings generated from an Event, and photographs (“Client Materials”), any contact information or other personally identifiable information of Attendees of Client’s Events and Virtual Environments (“Attendee Data”) and all other Intellectual Property of Client (together with the Client Materials and Attendee Data, “Client Information”).
e) Client hereby grants ENGAGE the right to use Client Information to the extent needed by ENGAGE to provide the Services to Client. Client acknowledges that ENGAGE does not exercise any control over the content of Client Information. Client shall bear the sole responsibility to ensure that all Client Information, and Client’s use and collection thereof, complies with all applicable laws and regulations. ENGAGE has no obligation, and expressly disclaims any obligation to review Client Information for accuracy or for any other reason.
f) ENGAGE may use Client Information in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not specifically identify Client or any Attendee.
g) Client may access and download Client Information related to an Event that is stored in the Platform by accessing their account during the period in which such Event is hosted or made available on an on demand basis as listed in the applicable Agreement (“Hosting Period”). Client acknowledges that ENGAGE shall have (i) no obligation to store any Client Information beyond the Hosting Period, and (ii) no liability for the deletion or destruction thereof thereafter. ENGAGE reserves the right to maintain in its backup archive unaltered copies of Client’s Webcasts.
7) Privacy & Security
- a) Client acknowledges that any Client Information uploaded to or transmitted through the Platform will be transferred to ENGAGE in Canada and the United States, and ENGAGE (and its service providers and agents) will process Client Information in the United States and in other jurisdictions in which ENGAGE or its service providers have operations. By agreeing to these Terms and providing Client Information to ENGAGE, Client consents to the transfer of Client Information, and to the processing of Client Information in, the United States and other jurisdictions in which ENGAGE and its service providers operate. Client represents and warrants that it has the authority to provide Client Information to ENGAGE for the purposes contemplated in these Terms, and that it has provided appropriate notice to or obtained consent from the data subjects as required by applicable law.
b) Client shall post and make available to its end users of the Platform a privacy notice that discloses how Client collects, uses, discloses, maintains, transfers, and otherwise processes personal information, including via the Platform, and how end users may access their personal information collected by Client via the Platform. Such privacy notice shall be made available to Attendees through the Platform, and shall comply with all applicable laws, rules and regulations.
d) With respect to personal information that originates in the European Economic Area (EEA), Client acknowledges that ENGAGE is a data processor and Client is the data controller, as these terms are defined under applicable EEA data protection laws. ENGAGE has certified its adherence to and will comply with the U.S.-EU Privacy Shield Principles, which can be found at https://www.privacyshield.gov/(collectively, “Privacy Shield Principles”), with respect to the personal information that ENGAGE receives in the United States from EU Platform Users. Client can review the Privacy Shield Principles, learn more about Privacy Shield, and view ENGAGE’s Privacy Shield certification at https:/www.privacyshield.gov/.
e) ENGAGE has implemented commercially reasonable safeguards to protect the Platform and the Client Information that ENGAGE processes via the Platform. The parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed. ENGAGE will not be responsible for Client’s access to the internet, for any interception or interruption of any communications through the internet, or for changes to or losses of data through the internet.
- a) ENGAGE and Client each warrant that it has validly entered into these Terms and each Agreement and has the legal power to do so.
b) ENGAGE warrants that it will provide the Services (i) in a professional manner, consistent with generally accepted industry standards, (ii) free from malware, viruses, worms, software locks, Trojan horses, and trap doors, and (iii) in material conformance with any descriptions thereof in the applicable Agreement. Client must notify ENGAGE of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. In the case of a breach by ENGAGE of an express warranty set forth above in this subsection, Client’s exclusive remedy shall be the re-performance of the deficient Services. The foregoing warranties in this subsection shall not apply to any Third Party Applications.
c) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND CLIENT’S USE OF THE PLATFORM AND SERVICES IS AT CLIENT’S OWN RISK, AND ENGAGE MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF CONDUCT, USAGE OR TRADE PRACTICE, AND ENGAGE DOES NOT WARRANT THAT THE PLATFORM AND SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE. ENGAGE SHALL HAVE NO ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY CLIENT INFORMATION. ENGAGE NEITHER WARRANTS THAT CLIENT, IN USING THE PLATFORM AND SERVICES, WILL OBTAIN THE RESULTS THAT CLIENT INTENDS, NOR THAT THE PLATFORM AND SERVICES WILL BE ADEQUATE FOR OR ACHIEVE THE BUSINESS PURPOSES AND REQUIREMENTS OF CLIENT. ENGAGE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY APPLICATIONS.
d) Client represents and warrants that: (i) its use of the Platform and Services, including the transfer of Client Information to ENGAGE and any Client Information comprising an Event, will not contravene any rule, law or regulation; (ii) it will not knowingly or willfully use the Platform and Services in any manner that could damage, disable, overburden, impair or otherwise interfere with ENGAGE’s operation of the Platform; (iii) it will comply with all laws and regulations applicable to bulk or commercial email, as well as other electronic communications, including without limitation all local or national laws applicable to the regions where Client has business operations or where the recipients of their electronic communications are located; and (iv) Client will comply with its obligations set forth in Section 6 (Privacy & Security), and Client has or will secure whatever legal authority or consent may be necessary for use, storage, processing and transfer by ENGAGE, including international cross-border transfer, of Client Information as contemplated by these Terms. Client acknowledges that ENGAGE will not be processing, or reviewing for legality any Client Information but will merely be offering and enabling the transmission of Client Information. Client acknowledges that ENGAGE shall have the right to remove or disable any Client Materials that it reasonably deems to be pornographic, libelous, offensive, illegal or otherwise objectionable but that this right shall not excuse Client from full responsibility arising from any such material.
- a) Subject to these Terms, ENGAGE shall defend and hold Client harmless against any and all claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that use of the Platform or Services by Client in accordance with these Terms infringes the intellectual property rights of a third party, provided that Client (i) promptly gives written notice of the Claim to ENGAGE; (ii) gives ENGAGE sole control of the defense and settlement of the Claim (except that ENGAGE may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (iii) provides to ENGAGE, at ENGAGE’s cost, reasonable assistance. ENGAGE will pay any losses, damages and costs (including reasonable attorney’s fees and legal costs) finally awarded against Client as a result of a Claim under this subsection. The foregoing obligations of ENGAGE shall not apply with respect to third party Claims of infringement that arise in whole or in part in connection with, as a result of, or that are directed at: (A) any modifications of the Platform or Services not made by or on behalf of ENGAGE; (B) any bundling, combination, or integration of the Platform or Services with any non-ENGAGE products, processes, software, hardware or materials by Client, if the applicable infringement claim would have been avoided absent such bundling, combination or integration; or (C) use of the Platform or Services other than in accordance with these Terms or an Agreement. In the event of a Claim under this subsection, or if ENGAGE has a reasonably belief that a Claim is likely, ENGAGE may, at its option and expense, (1) procure for Client the continued right to use the Platform or Services; (2) provide alternate services that provide capabilities similar to those of the Platform or Services, as applicable; or (3) terminate the applicable Agreement and refund all prepaid fees for Services that remain undelivered at the time of termination. ENGAGE’s obligations under this subsection shall not apply to any Third Party Applications. THIS SUBSECTION STATES ENGAGE’S ENTIRE OBLIGATION AND LIABILITY, AND CLIENT’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY ENGAGE UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW.
b) Subject to these Terms, Client shall defend and hold harmless ENGAGE against any and all Claims made or brought against ENGAGE by a third party alleging that Client Information, or use of the Platform or Services by Client in violation of these Terms infringes the intellectual property rights of a third party, provided that ENGAGE (i) promptly gives written notice of the Claim to Client; (ii) gives Client sole control of the defense and settlement of the Claim (except that Client may not settle or defend any Claim unless it unconditionally releases ENGAGE of all liability); and (iii) provides to Client, at Client’s cost, reasonable assistance. Client will pay any losses, damages and costs (including reasonable attorney’s fees and legal costs) finally awarded against ENGAGE as a result of a Claim under this subsection. In the event of a Claim under this subsection, ENGAGE will no longer have any obligation to provide Client with access to the Platform or any Services and may terminate all Events and Virtual Environments that may be related to the Claim. THIS SUBSECTION STATES CLIENT’S ENTIRE OBLIGATION AND LIABILITY, AND ENGAGE’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY CLIENT UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW.
10) Limitation of Liability
- a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR DAMAGES ARISING FROM OR RELATED TO THESE TERMS, INCLUDING LOST PROFITS OR REVENUES OR DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, OR COSTS OF PROCURING SUBSTITUTE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) EXCEPT FOR PAYMENT OBLIGATIONS AND VIOLATIONS OF SECTION 3 (USE RESTRICTIONS), NEITHER PARTY SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES FOR ALL CLAIMS ARISING OUT OF OR RELATED TO AN AGREEMENT IN AN AMOUNT GREATER THAN (A) THE AMOUNT OF FEES ACTUALLY PAID TO ENGAGE UNDER SUCH AGREEMENT BY CLIENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF ANY CLAIM, EVENT, ACT OR OMISSION, LESS (B) AMOUNTS PAID IN SATISFACTION OF ANY PRIOR CLAIMS.
11) Modifications; Third Party Applications
- a) From time to time after the date of these Terms, ENGAGE may make available new releases to the Platform that add, enhance or change the features and services of the Platform. Additional charges may or may not be applicable for new features and services, but in no case will Client be charged for any such features and services without Client’s express prior approval. ENGAGE reserves the right to withdraw, suspend or discontinue any functionality or feature of the Platform provided that the functionality of the Platform is not materially decreased during the term of an Agreement as a result.
b) Through its use of the Services, Client may have access to certain third party applications, such as plugins and websites (collectively, “Third Party Applications”). ENGAGE does not maintain control over Third Party Applications, and shall not be responsible for their content, operation or use. Third Party Applications may be modified or disabled at any time, and ENGAGE shall not be under any obligation to provide notice of any such modifications. By linking or otherwise providing access to Third Party Applications, ENGAGE does not provide any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of information or services provided by such Third Party Applications. ENGAGE hereby disclaims any and all responsibility and liability for any harm resulting from Client’s use of Third Party Applications, and Client hereby irrevocably waives any claim against ENGAGE with respect to all Third Party Applications. This subsection does not apply to any third party services which Client may purchase from ENGAGE for a fee.
- a) Termination
- i) For Material Breach. Either party may terminate an Agreement, by written notice to the other party, in the event of a material breach of such Agreement by the other party, if such breach is not cured within 30 days after the breaching party receives from the non-breaching party a written notice which sets forth a detailed description of the breach.
ii) For Insolvency. Either party may terminate an Agreement, with written notice if: (i) the other Party (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under the bankruptcy laws of the United States, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under the laws of Ontario, Canada, which proceedings are not dismissed within 90 days thereafter, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (ii) the other Party passes a resolution for its winding up, liquidation or dissolution, or a court of competent jurisdiction makes an order for such other Party’s winding up, liquidation or dissolution.
iii) Upon any termination or expiration of an Agreement, Client’s right to access and use the Platform or Services covered by that Agreement shall immediately terminate. If ENGAGE terminates an Agreement pursuant to this Section, all fees set forth on such Agreement are immediately due and payable.
- b) Survival. Should an Agreement be terminated, all provisions herein or therein, as the case may be, which by their nature should survive termination, will survive, including without limitation, provisions pertaining to payment obligations, indemnity obligations, IP ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
c) Independent Contractors; Relationship. The parties are independent contractors, and no agency, partnership, franchise, joint venture or employment relationship is intended or created by these Terms. Neither party shall make any warranty or representation on behalf of the other party. Neither party shall disparage the other party or its products or, services..
d) No Implied Licenses. These Terms shall not be the source of or give rise to any implied license or right in or to, and ENGAGE reserves all rights not expressly granted to Client hereunder.
e) Assignment. Neither party may assign, transfer, or delegate any rights or responsibilities under an Agreement or these Terms, whether by operation of law or otherwise, without prior written consent of the other party (and such consent shall not be unreasonably withheld), except that no consent shall be required in the event of an assignment, transfer or delegation in connection with a merger, acquisition, reorganization, or sale of substantially all of the assets of the party (a “Transfer”), provided, however, if a party consummates a Transfer with a direct competitor of the other party, then such other party may terminate all Agreements without liability upon written notice to the other party.
f) Export Compliance. The Services and Platform are subject to the export laws and regulations of Canada. Each party represents that it is not named on any Canada government denied-party or restricted-party list.
g) Anti-Corruption. Client affirms that it has not and agrees that it will not, in connection with the purchase of and the use of the Services contemplated by the relevant Agreement or in connection with any other business transactions involving ENGAGE, make or promise to make any payment or transfer anything of value, directly or indirectly: (i) to any governmental official or employee (including employees of government corporations or instrumentalities); (ii) to any political party, official or a political party or candidate (or to an intermediary for payment to any of the foregoing); (iii) to any officer, director or employee of ENGAGE.
- h) Governing Law. These Terms, and any disputes arising out of or related hereto, shall be governed by the internal laws of the Province of Ontario, Canada without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
i) Venue. The province and federal courts located in Ontario, Canada shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to an Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Except for actions for nonpayment or breaches with respect to a party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
j) Force Majeure. Except for payment obligations, either party shall be excused for failure to perform under these Terms where such failure results from circumstances beyond that party’s control including, without limitation, such circumstances as fire, storm, flood, earthquake, strikes, work stoppages or slowdowns, delay or failure of transportation or supplies, acts of the public enemy, acts of God or acts, regulations, priorities or actions of Canada, a state or any local government or agents or instrumentalities thereof.
k) Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
l) Waiver. No failure or delay by either party in exercising any right under an Agreement will constitute a waiver of that right.
m) Notices. ENGAGE may give notice applicable to ENGAGE’s general customer base by means of a general notice on the Platform, and notices specific to Client by electronic mail to Client’s email address on record in ENGAGE’s account information. If Client seeks to provide a notice to ENGAGE pursuant an Agreement or these Terms, or becomes subject to insolvency or other similar legal proceedings, Client must send a written notice to ENGAGE at ENGAGE, Attn: Legal Department, 67 Mowat Ave, Suite 411, Toronto, ON M6K 3E3 or to ENGAGE’s then current address as may be updated by ENGAGE from time to time.
n) Entire Agreement, Amendments, Conflicts. These Terms (which include Exhibit A hereto) and the applicable Agreement constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, whether written or oral, concerning the subject matter of such Agreement. No modification, amendment, or waiver of any provision of an Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency in terms between an Agreement and these Terms, the terms of the Agreement shall take precedence. The expiration or termination of one Agreement shall not affect another Agreement. Notwithstanding anything to the contrary therein, no terms or conditions included in a Client purchase order or any other Client documentation shall be deemed incorporated into or form any part of an Agreement, and all such terms or conditions shall be considered inapplicable and null and void.
o) Counterparts. An Agreement or these Terms may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, email or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument, each of which when so executed and counterparts. Each counterpart when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. A facsimile or electronic signature shall be deemed an original signature for all purposes.
SERVICE LEVEL SCHEDULE
For purposes of this Service Level Schedule (this “Schedule”), in addition to those terms defined above, the following terms shall have the following respective meanings:
1.1. “Scheduled Maintenance Window” is the time during which the Services are not required to be available in accordance with the following schedule, which schedule ENGAGE may change from time to time upon reasonable notice to Client:
Duration of Scheduled Downtime
Saturdays 6 pm-12 midnight Pacific Time
ENGAGE is relieved of its duty to provide the Services only if it has elected to schedule maintenance during the Scheduled Maintenance Window.
1.2. “Unscheduled Maintenance” means maintenance performed, (i) when, in ENGAGE’s commercially reasonable discretion, it is necessary to avoid loss of Services or (ii) during any downtime mutually agreed to with Client to correct a situation that endangers Client ability to utilize the Services.
1.3. “Standard Business Hours” means the time on business days between 6 am and 6 pm EST for North America Events, and between 8 am and 6 pm GMT for EMEA Events.
1.4. “Failed Webcast Event” means,
(a). with respect to a live Webcast Event,
(i). Greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes or
(ii). The presenter, in using the interface to control the presentation, experiences a lag time between a command’s initiation and its response of greater than 30 seconds continuously for more than five minutes, and
(b). with respect to an On-Demand Webcast Event that is scheduled to be broadcast at a set point in time, greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes.
1.5. “Full Live Day Failure” means,
(a). with respect to the live day component of a Virtual Environment (“Live Day”),
(i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
(ii). Greater than 50% of the total Live Day attendees cannot access the Supporting Application Functionality for more than fifteen percent (15%) of the scheduled Live Day duration.
1.6. “High Impact Live Day Failure” means,
(i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than five percent (5%) of the scheduled Live Day duration.
(ii). Greater than 50% of the total Live Day attendees cannot access the Supporting Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
1.7. “Partial Live Day Failure” means,
(i). Greater than 25% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than five percent (5%) of the scheduled Live Day duration.
(ii). Greater than 25% of the total Live Day attendees cannot access the Supporting Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
1.8. “Critical Application Functionality” means Chat and Global Navigation and Show Locations.
1.9. “Supporting Application Functionality” means Reports, Marquees, “Access” to environment content, Who’s Here, Video Greetings (Main Plaza and Booth), Network Builder, Message Board, Messages (in environment), Profile Manager, Briefcase, Prize Center, and the People Search.
2.1. Credits. If a Failed Webcast Event occurs, and Client notifies ENGAGE within three business days of the Failed Webcast Event, Client will qualify for a credit equal to the value of the charges for the Webcast Event, but not including any third party expenses that ENGAGE or Client incurred with respect to the Webcast Event. The credit shall be available to Client exclusively for use on another Webcast Event, and ENGAGE shall have no obligation to refund the value of any credit to Client.
2.2. Live Day Refunds. If a Full Live Day Failure occurs, and Client notifies ENGAGE within three business days of the Full Live Day Failure, Client will qualify for full (100%) refund of base Live Day fee. If a High Impact Live Day Failure occurs, and Client notifies ENGAGE within three business days of the High Impact Live Day Failure, Client will qualify for a fifty percent (50%) refund of base Live Day fee. If a Partial Live Day Failure occurs, and Client notifies ENGAGE within three business days of the Partial Live Day Failure, Client will qualify for twenty five percent (25%) refund of base Live Day fee.
2.3. Service Exceptions. Client shall not earn any credit if the failure otherwise qualifying Client for a credit occurs:
(a). Due to connection errors resulting from Attendee mistake or Client’s failure to follow best practice guidelines.
(b). During Scheduled Downtime;
(c). Whenever ENGAGE has the right to suspend Client’s access to Services pursuant to the Terms.
(d). As the result of any occurrence, cause or event outside ENGAGE’s reasonable control, which includes, but is not limited to, a Force Majeure event under the Terms; or
(e). As the result of Client’s equipment or service or any third party equipment or service not within the sole control of ENGAGE.
(f). As a result of the network equipment or network conditions between ENGAGE and the Client’s personal computer.
2.4. Sole and Exclusive Remedy. Except as specifically expressed in the Terms, this Section 2 of this Schedule states Client’s sole and exclusive remedy for any failure or interruption of Services or for any failure by ENGAGE to meet any Service Level target as well as for any breach or other violation of any warranty or obligation under this Schedule.
3. Operational Availability
3.1. Client acknowledges that it will not be able to access Event Services during the Scheduled Maintenance Window on those occasions when maintenance is actually scheduled, or during Unscheduled Maintenance.
3.2. ENGAGE shall endeavor to provide advance notice to Client of Unscheduled Maintenance that affects Client. ENGAGE shall indicate to Client the reasons for and duration of any Unscheduled Maintenance.
4. Service Guarantee
ENGAGE warrants that it will make reasonable efforts within industry standards to provide System Availability of at least 99%. “System Availability” is the sum of hours that the system is available divided by total hours in the measurement period, excluding from total hours any scheduled maintenance. System Availability is measured on a calendar year-to-date basis based on data gathered by ENGAGE’s monitoring systems via a process by which verifiable attempts shall be made periodically to access a standard URL within the ENGAGE system. If such access test succeeds, then the system shall be deemed as available.
In any case where the Client independently determines that System Availability has been measured at less than the Service Guarantee, the Client may communicate this problem in writing to ENGAGE, stating in detail the exact nature of the problem. ENGAGE will provide to the Client a plan of remedy (the “Remedy Plan”), within 15 (fifteen) business days from its receipt of such notice. The Client will have the right to review and discuss the Remedy Plan with ENGAGE for a reasonable period of time. Upon mutual agreement to the Remedy Plan, ENGAGE will then execute that Remedy Plan.
If ENGAGE should fail to provide a Remedy Plan within that time period, the Client may provide written notice to ENGAGE stating that the Client believes ENGAGE has materially breached (the “Breach”) its Terms with the Client. Client may then terminate these Terms only if ENGAGE fails to remedy the Breach within 30 (thirty) business days from the date that ENGAGE confirms receipt of such written notice from the Client of the Breach.
5. ENGAGE “LIVE” Webcast Viewer Policy
(a) All live Webcast events over 2,500 attendees require advance notification. Notifications for Full Service clients should be made to your ENGAGE Webcast Manager. Notifications for Self-Service clients should be made electronically to the ENGAGE Platform Support Team.
(b) Notifications must be received no later than 10 (ten) days prior to event date and require commitment of reserved audience capacity.
(c) Additional Webcast viewers over 2,500 must be purchased in blocks of 500. Additional Webcast viewers over 5,000 must be purchased in blocks of 1,000. Additional Webcast viewers over 10,000 will be priced by quote.
(d) Actual attendance over the reserved audience capacity will be billed at 150% of currently published rates for all webcast viewers exceeding reserved capacity.
(e) All Non-Streaming Webcast event profiles are limited to 2,500 attendees