Software as a Service Agreement
This Software as a Service Agreement (“Agreement”) is made effective as of 7/6/2015 (the “Effective Date”) and entered into between Townsquare Active Events, LLC / Townsquare Active Treasury, LLC; 240 Greenwich Ave; Greenwich, CT 06830; (“Event Elf” or “we” or “us”) and you, the user of the Site (“you” or “your” or “Client”).
The parties agree as follows:
1. Services. Event Elf will provide services and support (“Services”) related to events, fundraising, donations, memberships, sales, permits, and/or activities (together, “Events”) including without limitation access to its software as a solution product (“Software”). The features, services, options and fees may be described more fully on web pages describing the Software and Service, and/or in an applicable schedule, quote, pricing form, order form, or similar document (each a “Schedule”). Each Schedule is incorporated into this Agreement. You agree to provide us with certain information relating to your organization as necessary for us to provide the Software and Services. Software provided under this Agreement is deemed delivered when made available to you.
2. Licenses to Intellectual Property/Promotion. a) Event Elf retains all right, title, and interest in and to its Software and Services and any underlying software subject to the limited license provided by this Agreement. b) Event Elf hereby grants to you a limited, non-exclusive, non-transferable license (i) to use the Software and Services solely in accordance with the Schedule and this Agreement, and (ii) to display, reproduce, distribute, and transmit in digital form Event Elf’s name and logo solely for the purposes set forth in this Section 2. You hereby grant to Event Elf a limited license to use information provide by you relating to your organization, which may include your organization’s name, trademarks, service marks, and logo, in connection with the promotion of your organization or Events. c) You will make reasonable efforts to promote and encourage the use and availability of the Software in connection with the promotion of your Events for which you are using the Software and Services. You will include Event Elf’s name and logo in newsletters, printed registration forms or mailings provided by you to prospective participants (e.g. by inserting the following statement in any online or print media related to your Event: “Online Registration provided by EventElf.com”). Event Elf will be the sole and exclusive provider of registration services similar to the Software and Services provided to Client hereunder for each Event for which you are using Event Elf’s Software and Services during the term of this Agreement. d) You agree to receive notifications regarding free product, promotion items, and giveaways at your Event(s) or facility(ies), but you may opt not to receive the items from Event Elf. Registrants of your Events may opt-in to to receive information, items, or promotions/deals from Event Elf; we will be responsible for providing customer service for any such offers. e) Each party agrees to comply with all applicable laws, rules, and regulations relating to such party’s obligations hereunder.
4. Fees. a) Client will pay the fees as more fully described in the applicable Schedule. For registration Software, unless otherwise set forth on the applicable Schedule, Event Elf will collect registration fees charged by you from individuals who register for your Events online, for the purposes of card association rules, as a merchant of record but not a seller of record. Event Elf will remit those sums to you, net of chargebacks and any other offsets, monthly unless otherwise set forth in the applicable Schedule, less Event Elf’s service fees as set forth in the applicable Schedule. Event Elf may suspend its performance hereunder, including remitting payments, in the event it reasonably believes that the Software or Services are being used for fraudulent or other suspect purposes. If you have agreed to a minimum volume commitment in a Schedule, Event Elf also has the right to charge fees owed to it by you if your organization does not meet the agree volume commitments and may collect those fees by issuing an invoice, charging your credit card on file, or by offsetting the deficiency from any account balance you maintain with Event Elf. Any minimum volume commitment calculations will begin on the date that the Software is live for your Event(s). Event Elf may also reimburse itself for any chargebacks, returned items or overdue fees owed by you out of the registration fees it collects on your behalf by offsetting your account or charging your credit card on file. If the Schedule indicates that you are paying on a subscription basis, you will be invoiced for the first year of the subscription fees upon the first live operational use of the Software (“Go-Live Date”), with subsequent annual subscription fees being invoiced upon each anniversary of the Go-Live Date. Payment of subscription fees are due within thirty (30) days of your receipt of an invoice. All fees and prices are in United States Dollars unless otherwise specified. b) All fees that are not directly collected by Event Elf as part of registration fees will be due from you within thirty (30) days from the end of the remittance cycle during which the fees accrued. These fees are displayed on your account statement. Past due fees shall accrue interest at the annual rate of ten percent (10%) per annum. In the event of delay in paying a fee, you agree to reimburse Event Elf for any fees incurred in its collection efforts. Event Elf may suspend or deactivate your account if your account is more than thirty (30) days past due. c) Event Elf reserves the right to modify the fees once per calendar year. Event Elf shall notify Client at least thirty (30) days in advance of any such change. If Event Elf modifies the fees, you can terminate this Agreement at that time by providing written notice within thirty (30) days following the date the change is implemented. d) As the seller of record, you will be solely responsible for and will pay, any and all use, excise, sales or privilege taxes duties, value added taxes, fees, assessment, or similar liabilities, chargeable by a governmental authority as a result of any Software or Service provided under this Agreement. Taxes on Event Elf’s net income are excluded. All fees described in the applicable Schedule are in consideration of the Software and Services that Event Elf provides. e) 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 that we may send registration fees collected by us directly to the Third Party Beneficiary.
5. Disclaimer of Warranty/Limitation of Liability. EVENT ELF EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE OF ITS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS. SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVENT ELF SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR LOST PROFIT DAMAGES. EVENT ELF’S TOTAL AGGREGATE LIABILITY FOR ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU AS CONSIDERATION FOR THE SOFTWARE AND SERVICES GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTH PERIOD PROCEEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
6. Indemnification. a) Each party (the “Indemnifying Party”) shall defend, settle, and pay damages (including reasonable attorneys’ fees) (“Damages”) relating to any third party claim, demand, cause of action or proceedings (whether threatened, asserted, or filed) (“Claims”) against the other party hereto (the “Indemnified Party”) to the extent that such Claim is based upon: (i) the Indemnifying Party’s violation of any applicable law, rule, or regulation; and/or (ii) provisions, by the Indemnifying Party, of materials, products, or services as part of such party’s obligations hereunder that infringe the intellectual property rights of any third party provided that such materials, products, or services are used in accordance with the Agreement. b) You shall further defend, settle, and pay Damages relating to Claims to the extend based on (i) injury or death to a person or damage to party resulting from the participation in an Event operated by you in connection with the Software and/or Services; and/or (ii) brought by a Third Party Beneficiary that relate to or arise from your negligence, wrongdoing, or lack of authority to act on behalf of such third party. For the purposes of Sections 5 and 6, reference to Event Elf shall also include its suppliers and licensors.
7. Term and Termination. The term of this Agreement shall be the period time from the Effective Date of this Agreement until the fifteenth (15th) day after the date of your Event, or if there are multiple Events, then until the fifteenth (15th) day after the date of your last chronologically organized Event. 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.
8. Miscellaneous. a) Any notices required to be given under this Agreement shall be in writing sent to the address set forth in the account for Client, or in the case of Event Elf, to the address set forth below to the attention of General Counsel. Notices will be deemed received the next day if sent via overnight mail or courier with confirmation of receipt, or three (3) days after deposited in the mail sent certified or registered. b) This Agreement is non-assignable without the written consent of the other party, except that Event Elf may assign without consent: (i) its rights to receive payments; or (ii) the Agreement to an affiliate or in connection with any sale of or any other transaction involving the transfer of more than fifty percent (50%) of its voting securities or assets. Any assignment in violation of this Agreement will be void. c) This Agreement shall be governed by the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement. Any legal action or proceeding relation to this Agreement shall be instituted only in any state or federal court in the State of Delaware. In any action or suit to enforce any right or ready under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees. d) This Agreement contains the entire understanding of the parties regarding the subject matter hereof and can only be modified or amended by a subsequent written agreement executed by both parties. e) Sections 2, 3, 5, 6, and 8 of this Agreement and any fees owed by you shall survive any termination or expiration of this Agreement. f) If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. g) 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. h) 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 to the extent that such failure results from any event or circumstance beyond that party’s reasonable control.
EVENT ELF regularly reviews its practices regarding personally identifiable information and this Service as a Software Agreement. If you have any questions, comments or concerns, please contact us at:
Attn: EVENT ELF Service Agreement
Townsquare Active Events, LLC / Townsquare Active Treasury, LLC
240 Greenwich Ave
Greenwich, CT 06830