BEFORE USING CROWDCOMMS’S SERVICES, PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE QUOTE EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE QUOTE (“CUSTOMER”) AND CROWDCOMMS LTD. (“CROWDCOMMS”). THESE TERMS AND THE QUOTE TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CROWDCOMMS AND CUSTOMER, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE QUOTE.
1.1 “App” means the mobile application that attendees of an Event can download into their mobile devices to access information regarding the Event. The App is created and revised by the Customer using the CMP.
1.2 “Event” means the planned occasion identified by the Customer.
1.3 “Event Data” means any data uploaded by a Customer into the CMP that would typically be provided in the normal planning, coordination and execution of event planning programs. Event Data excludes, without limitation, any personal data, as defined by Privacy Laws, any financial information of any nature, or any other financial or personal information of the attendees that has been collected by Customer in contravention of any applicable privacy laws.
1.4 “Event Link” means a custom link that serves as a dedicated mobile web app for the Event, accessible during the Term of the Event, that delivers the App to the attendees.
1.5 “Content Manager Platform” or “CMP” means the online website application and associated software systems provided by CrowdComms. (Collectively, the “Systems”).
1.6 “Quote” means the ordering documents from Customer’s purchases from CrowdComms executed hereunder by the parties from time to time. Quotes shall be deemed incorporated herein.
1.7 “Professional Services” means the custom development or customisation services provided by CrowdComms specific to the Customer.
1.8 “Usage Analytics” means all analytics that are gathered via the CMP throughout the duration of the Event. This includes, but is not limited to, number of page views, number of unique visitors, and the most frequently selected modules within the App.
2. THE CONTENT MANAGER PLATFORM OR CMP
2.1 Subject to the terms and conditions of these Terms, CrowdComms grants to Customer, a limited, worldwide, non-exclusive, temporary, non-transferable (except as explicitly permitted in these Terms) right to access and use the CMP solely in connection with its internal business operations.
2.3 Compliance with Laws. Each party will perform its respective rights and obligations under these Terms in compliance with all applicable laws and regulations
3. WARRANTIES CrowdComms 2016
3.1 Security Warranty. CrowdComms has implemented Appropriate Security Measures (as hereinafter defined) and maintains the CMP at reputable third party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Event Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Event Data against destruction, loss, alteration, unauthorised disclosure to third parties or unauthorised access by employees or contractors employed by CrowdComms, whether by accident or otherwise. Customer acknowledges that use of the CMP will involve transmission of Event Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorised parties when communicated across the Internet or other networks. CrowdComms is not responsible for any Event Data which is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by CrowdComms and its subcontractors, including but not limited to the Internet and Customer’s local network. Customer shall protect its authorised user login names and passwords from access or use by unauthorised parties, and is solely responsible for its failure to do so. Customer must promptly notify CrowdComms of any suspected security breach at [email protected]
3.2 Functionality Warranty. CrowdComms warrants that the CMP will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation provided by CrowdComms.
3.3 Mutual Warranties. Each party represents and warrants to the other that: (a) the Quote has been duly executed and delivered and these Terms constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorisation or approval from any third party is required in connection with such party’s execution and delivery of the Quote, or performance of these Terms; and (c) the execution and delivery of the Quote, and performance of these Terms, does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
3.4 Disclaimer. Except as expressly provided herein, CrowdComms DISCLAIMS ANY WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. CrowdComms does not warrant that the CMP will meet the Customer’s requirements or that the operation of the CMP will be uninterrupted or error-free. Further, CrowdComms does not warrant that all errors in the CMP can or will be corrected.
4. PROFESSIONAL SERVICES
4.1 Professional Services. Customer may contract with CrowdComms to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Quote. Unless otherwise specified in the applicable Quote, any unused portion of the Professional Services will expire and may not be carried over after 12 months from the Quote effective date.
4.2 Changes to Professional Services. Customer may reasonably request in writing that revisions be made with respect to the Professional Services set forth on the Quote. If Customer’s requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Quote, then CrowdComms will deliver to Customer a written proposal reflecting CrowdComms’s reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that will apply to the requested revisions. If Customer approves the proposal, then the parties will execute the proposal as an amendment to the Quote. Otherwise, the then-existing Quote will remain in full force and effect, and CrowdComms will have no further obligation with respect to the relevant change requests.
4.3 Final Revision Date. Customer may request any changes to their Professional Services up until the Final Revision Date, which date shall be agreed to by the Customer and CrowdComms. The Final Revision Date will be outlined on the Quote. Any changes requested after the Final Revision Date will result in additional fees and/or may not be able to be processed before the Event date.
4.4 Project Management. Each party will designate a project leader as a single point of contact within each party’s organisation to manage the Professional Services described on the Quote. The project leaders will meet as necessary to manage the Professional Services to be performed as indicated on the Quote. Disputes will be escalated to more senior executives if the project leaders are unable to resolve a problem.
4.5 Customer’s Responsibilities. Customer will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable CrowdComms to perform the Professional Services. Customer acknowledges that CrowdComms’s ability to provide Professional Services as described on the Quote may be affected if Customer does not provide reasonable assistance as set forth above.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms. Customer shall pay to CrowdComms all of the fees specified in the Quote (the “Fees”). Except as otherwise provided in the Quote, all Fees are quoted in AUD currency; payment obligations are non-cancellable; and Fees are non-refundable. Fees shall be invoiced in advance in accordance with the terms of the accepted Quote. Unless otherwise stated in the Quote, Fees are due within 14 days from the invoice date or before the “go live” date, whichever is sooner. In the event of nonpayment of Fees, Customer agrees to pay the cost of collection including reasonable legal fees and costs. Interest shall accrue with respect to a payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in these Terms), CrowdComms reserves the right to suspend the CMP without liability to CrowdComms, until such account is paid in full. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than CrowdComms income taxes.
6. TERM AND TERMINATION
6.1 Term. Access to the CMP shall commence upon the Effective Date specified on the Quote and continue for the term specified on the Quote unless terminated earlier in accordance herewith.
6.2 Termination for Material Breach. These Terms may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination by Customer without cause shall not relieve Customer of the obligation to pay CrowdComms the fees agreed in the Quote.
7. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
7.1 CMP. CrowdComms retains all right, title, and interest in and to the CMP, the Professional Services, the Trademarks, and documentation provided to Customer.
7.2 Trademarks. This Agreement does not authorise Customer to use CrowdComms’s name or any of its trademarks or service marks. CrowdComms may only use Customer’s name, trademarks and service marks solely to the extent necessary to fulfill its obligations under these Terms or as otherwise explicitly authorised in these Terms.
7.3 Event Data. Event Data is Customer’s property and Confidential Information. Customer is responsible for users’ compliance with this Agreement. Customer shall comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with the Event Data and its collection and use, including without restriction, the EU Data Protection Directive and any other laws applicable to the Customer related to privacy, publicity, data protection, electronic communications, consumer child protection laws, obscenity, anti-defamation laws and anti-spamming laws. Customer is responsible for the collection, legality protection and use of the Event Data that is used in connection with the CMP and the App. Customer grants CrowdComms a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-licence, index, store, aggregate and display Event Data solely as required to provide or perform the CMP.
7.4 Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of the Quote. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own proprietary information (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 CrowdComms Indemnification. CrowdComms shall defend, indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable legal fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the CMP, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing, if CrowdComms reasonably believes that the Customer’s use of any portion of the CMP is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then CrowdComms may, at its expense: (i) procure for the Customer the right to continue using the CMP; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the CMP as set out herein. CrowdComms shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the CMP or the App with other equipment or software not supplied by CrowdComms or in a manner not consistent with CrowdComms’s instructions. THIS SECTION SETS FORTH CROWDCOMMS’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2 Customer Indemnification. The Customer agrees to defend, indemnify and hold CrowdComms harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with Claims made or brought against CrowdComms by a third party arising from or relating to Customer’s use of the Event Data, the App, or the CMP in violation of these Terms.
8.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID OR DUE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
10.1 Entire Agreement. This Agreement, inclusive of the Quotes and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto.
10.2 Publicity. Customer agrees that CrowdComms may use Customer’s name and logo on CrowdComms’s website, and as a part of a general list of CrowdComms’s customers for use and reference in corporate, promotional and marketing literature. Additionally, Customer agrees that CrowdComms may issue a press release identifying Customer as a customer of CrowdComms in accordance with Customer’s standard guidelines. Customer agrees to be a reference for CrowdComms over the term of the Quote.
10.3 Independent Contractors. The parties are independent contractors. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate merger or acquisition provided that the assignee is not a competitor of the non-assigning party. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorised as an agent, employee or representative of the other party.
10.4 Modification and Waiver. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
10.5 Governing Law and Arbitration. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws Australia, without regard to conflicts of laws principles. In the event of any controversy or claim arising from or related to these Terms, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Except for disputes, controversies, claims or collection efforts regarding
10.7 Assignment. These Terms may be assigned and/or transferred to any third party, affiliate, or other successor in interest of a party, including without limitation, as a result of merger or consolidation, or in connection with the sale or transfer of all or substantially all of its business or assets to which these Terms relate, or in connection with a corporate reorganisation, or in connection with any other business purpose; provided that such assignee is bound by the applicable terms of these Terms.
10.8 Force Majeure. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
10.9 Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect.