Last Updated: November 15, 2015
The term of this Agreement ("Term") shall be the period set forth on the applicable Order Form, whether for one or more Customer events or for a set duration of months or years. If the Term spans multiple years and the Order Form specifies annual fees, then fees are due in each year of the Order Form ("Contract Year") or as otherwise specified. The Order Form will renew at the end of its Term as specified (and not on a per year basis) for another Term, equal to the length of the Term specified in the Order Form, unless You provide timely notice of nonrenewal as specified in the applicable Order Form.
3.1 Description. SocialWall provides event organizers a platform to compile and display selected attendee social content at their events using a live feed for posts and photos from Twitter, Flickr, and Instagram. SocialWall Basic permits Customer to pull content from social media feeds, moderate and display it on their website or within their CrowdCompass or CrowdTorch mobile application. SocialWall Premium includes additional features such as onsite live displays, sponsored content and advanced moderation capabilities. SocialWall for Venues includes all the capabilities of SocialWall Premium, plus the addition of rights management and account-level galleries which enable hotels and other meeting space suppliers to compile selected and authorized content from multiple events at a property.
3.2 Features. Unless your Order Form states otherwise, you shall receive the following features with your base edition of the Software.
|Galleries per Event||1||5||5|
|Search Terms per Gallery||10||10||10|
|Direct Posts||Additional fee||Additional fee|
3.3 User IDs. Cvent will assign you one or more User IDs that will enable you to access the Software. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such User IDs, and you are solely responsible for any losses arising from another party's use of such User IDs, either with or without your knowledge.
3.5 Third Party Service Interoperability. The Service may contain features designed to interoperate with third party services, technology and/or content (collectively, "Third Party Solution") including, by way of example, content feeds hosted and provided by Twitter, Flickr and Instagram on their respective websites. To use such Service features, Customer may be required to establish its own account with the third party provider in order to obtain access to such Third Party Solution, and may also be required to grant Cvent access to one or more of Customer's third party provider account(s). Provided that Cvent exercises commercially reasonable efforts to maintain Service interoperability with the Third Party Solution, in the event such third party provider fails to maintain a reliable interface or ceases to make the Third Party Solution available for interoperation with the corresponding Cvent Service features on reasonable terms, Cvent may cease providing those Service features without entitling Customer to any refund, credit, or other compensation. If Customer installs or enables a Third Party Solution for use with the Service, Customer grants Cvent permission to allow the third party provider to access Customer-Provided Content and Customer Data solely to the extent required for the interoperation of that Third Party Solution with the Service provided hereunder. Cvent is not responsible for any disclosure, modification or deletion of Customer-Provided Content and Customer Data resulting from access by the third party service provider or use of the Third Party Solution. Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges and agrees that Customer is solely responsible for selection and use of any materials, information and/or other content ("Third Party Content") from any Third Party Solution and therefore Customer shall be solely responsible for any such selection and use of Third Party Content by Customer or Customer's employees, agents, subcontractors or users and Cvent shall bear no risk or liability for same.
5.1 Payment Terms. The pricing and payment terms for the Service are as set forth in the applicable Order Form signed (or, for online orders, electronically acknowledged) by you and Cvent. Except as otherwise agreed in writing and signed by an authorized representative of both parties, all payments for Service shall be immediately due upon submission of an Order Form and payable by check, wire or ACH. Orders under $7,500 may be paid by credit card. Without limitation to any other legal or equitable remedies available to Cvent, we may withhold provision of Service if payment has not been received in full.
5.2 Sales Tax. You are responsible to pay all applicable federal, state or local sales tax. If the applicable tax rate is different from the published rate at the time of placing the order, Cvent may adjust the tax payable by Customer accordingly. If you are tax exempt in the state in which you will be using the Service, you must provide a Sales Tax Exempt Certificate for that state with your signed Order Form, otherwise tax may be charged to your order.
5.3 Interest on Late Payments. All past due payments will accrue interest due at a rate of two percent (2%) per month on the unpaid balance from the due date until paid in full, unless the applicable maximum rate chargeable is less, in which case that rate shall apply.
6.1 For Uncured Material Breach. Either party may terminate an Order Form if the other party (i) breaches any material term or condition and fails to cure within thirty (30) days written notice, or (ii) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership. If Customer terminates an Order Form in accordance with this paragraph, Cvent will refund any prepaid fees covering the remainder of the Term of the Order Form as of the effective date of termination.
6.2 Suspension or Termination of Service by Cvent.
6.2.1 Cvent may immediately restrict or suspend your access to the Service without prior notice in the event Cvent becomes aware of, or reasonably suspects, any Prohibited Uses (as defined below in Section 7) of the Service by you or your authorized users. Cvent will act in good faith and use reasonable efforts to notify Customer via phone or email before imposing any such suspension or restriction.
6.2.2 In the event of non-payment or other uncured material breach of this Agreement by the Customer: (i) Cvent may accelerate and declare all sums due, and to become due under this Agreement, immediately payable without notice or demand, provided that all accelerated future payments due under this Agreement shall be discounted to their net present value at a discount rate of 5% per annum from the day of default. (ii) Cvent reserves the right to suspend access to the Service, and, without limiting the generality of the foregoing, Cvent may, at its option, elect to terminate the Agreement or restrict your users' access to the Service for failure to pay any fees associated with the Agreement that are past due by more than sixty (60) days. Cvent's exercise of the foregoing remedies shall not reduce the amounts due under this Agreement or any Order Form, and Customer shall also be liable for any additional expenses (including but not limited to reasonable attorneys' fees and accrued interest) Cvent incurs in collecting such delinquent fees.
Customer agrees that its use of the Service shall at all times be in compliance with applicable local, state, national, and international laws and regulations. Customer will not use the Service: (i) to impersonate any person or entity or engage in any fraudulent business practice, including generating invalid impressions, clicks, or other actions; (ii) to display or transmit any unlawful, harmful, hateful, racially, ethnically or objectionable material of any kind; (iii) to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (iv) in any manner which exceeds the scope of its license under Section 4 (License) of this Agreement; (v) to interfere with or disrupt the integrity or performance of any component of the Service or third-party data contained therein; or (vi) for illegal activities (all the foregoing "Prohibited Uses").
Notwithstanding anything to the contrary in this Agreement, Customer hereby acknowledges and agrees that Cvent may use Customer-Provided Content and Customer Data for the purpose of creating aggregated and/or anonymized statistics (the "Aggregate Data"). Aggregate Data shall not identify Customer as the source of any specific piece of data, and shall not include any personally identifiable information or data specific to any individual users of the Service.
Customer acknowledges that Cvent or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Service (including without limitation to any Software and modifications thereto) and to any related documentation and marketing materials, regardless of whether (i) such intellectual property notices appear in the Software or in related documentation or materials, or (ii) such intellectual property notices have been filed with governmental agencies. Nothing in this Agreement will directly or indirectly be construed to assign or grant Customer any right of ownership, title or interest in the Software or any component of the Service, or any intellectual property rights relating thereto. No competitors or future competitors of Cvent, or of any Cvent subsidiary, are permitted access to the Service without the prior written consent of Cvent in each instance, and such consent may be withheld in Cvent's sole discretion.
Customer agrees not to disclose to anyone any proprietary or confidential information of Cvent which Customer may receive or have access to through the Service (the "Cvent Content"), or to use any Cvent Content to compete against Cvent or reverse engineer any Cvent product or service. Customer agrees that it will not resell or, for any competing commercial purpose copy, record, publish, compile, reproduce, republish, or use any Cvent Content. Customer agrees to pay all reasonable attorney's fees and costs incurred in enforcing the provisions of this Section 8.
Each party receiving Confidential Information hereunder ("Recipient") agrees that (a) it will treat all Confidential Information of the other party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and (b) it will not use, disseminate, or in any way disclose to third parties any Confidential Information of the disclosing party ("Discloser"), except for the provision of the Service to the extent necessary to provide the Service under these Terms, and for any other purpose Discloser may hereafter authorize. For purposes of these Terms, "Confidential Information" means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any Customer Data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. The terms and conditions of any Order Form shall be deemed Confidential Information of both Cvent and the Customer.
Recipient will have no obligation with respect to any portion of the Confidential Information which (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure; (d) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or (e) is disclosed with the prior written consent of Discloser. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest (at Discloser's sole expense) such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.
The parties agree that these confidentiality terms replace and supersede any separate non-disclosure agreement of other confidentiality provisions to which the parties may have agreed prior or contemporaneous to agreeing to these Term of Use.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Cvent warrants that (a) the Service materially conform to the specifications set forth in the Order Form, and in accordance with any marketing, advertising and promotional materials provided to Customer, and (b) the Service will not introduce code, files, scripts, agents or programs into Customer's systems which are intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. For any material breach of a foregoing warranty, Customer's exclusive remedies are those set forth in Section 6.1.
EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND CVENT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. CVENT DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICE IS UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND THAT THE SERVERS USED FOR THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Cvent shall defend Customer against any claim or lawsuit by a third party (a "Claim") against Customer to the extent such Claim alleges that the use of the Software by Customer in accordance with the terms of this Agreement, infringes any patent, copyright or federally registered trademark, or misappropriates a trade secret of a third party, and Cvent will indemnify Customer for all damages finally awarded against Customer by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Cvent, arising out of such Claim. If Customer's use of the Software under the terms of this Agreement is enjoined or Cvent determines that such use may be enjoined, then Cvent may, at its sole option and expense, either (i) procure for Customer a license to continue using the Software in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing Software to avoid the infringement; or (iii) terminate the licenses and access to the corresponding Software and refund any prepaid unused fees as of the date of termination. Notwithstanding the indemnity obligations specified under this paragraph or anything to the contrary under this Agreement, Cvent shall have no defense or indemnification obligation or other liability for any Claim arising from (i) use of the Software other than in accordance with this Agreement; (ii) modification of the Software by Customer or a third party; (iii) the combination of the Software with any materials contributed by Customer or any third parties if the Software would not directly infringe without such combination; (iv) any third party products, services, hardware, software or other materials; or (v) any obligation of Customer to defend or indemnify Cvent.
Customer shall defend Cvent against any Claim against Cvent or a Cvent subsidiary to the extent such Claim alleges that the use of any Third Party Content by Customer, or of any Customer-Provided Content by Cvent or a Cvent subsidiary in accordance with the terms of this Agreement (including, for avoidance of doubt, the distribution of Customer-Provided Content to event attendees, guests, invitees and other third parties via the Software's email, web-based and/or mobile application platforms, which Customer acknowledges is its intention) infringes any patent, copyright or registered trademark, misappropriates a trade secret, or violates a privacy or publicity right of a third party, and Customer will indemnify Cvent for all damages finally awarded against Cvent or a Cvent subsidiary by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Cvent, arising out of such Claim. If Cvent's use of the Customer-Provided Content under this Agreement is enjoined or Cvent determines that such use may be enjoined, then Cvent may remove or otherwise take down such Customer-Provided Content from the Service at any time in its discretion, and Customer will, at its sole option and expense, either (i) procure for Cvent a license to continue using the Customer-Provided Content in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing Customer-Provided Content to avoid the infringement; or (iii) cease all use of the Customer-Provided Content that is the subject of the Claim. Notwithstanding the indemnity obligations specified under this paragraph or anything to the contrary under this Agreement, Customer shall have no defense or indemnification obligation or other liability for any Claim arising from (i) use of the Customer-Provided Content by Cvent other than in accordance with this Agreement; (ii) modification of the Customer-Provided Content by Cvent (other than formatting or similar changes necessary to make such content compatible for use with the Software); (iii) combination of the Customer-Provided Content with any materials contributed by Cvent or any Cvent subsidiary if the Customer-Provided Content would not directly infringe without such combination; or (iv) any obligation of Cvent to defend or indemnify Customer.
Disclaimer of Indirect Damages. IN NO EVENT WILL CUSTOMER OR CVENT (OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, PROVISION OR DISTRIBUTION OF ANY SOFTWARE, SERVICES, CONTENT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT) BE LIABLE FOR: (i) ANY DAMAGES CAUSED BY THE NEGLIGENCE, INTENTIONAL MISCONDUCT OR UNLAWFUL ACT OR OMISSION OF THE OTHER PARTY (OR THE OTHER PARTY'S CLIENTS, INVITEES, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS); (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (EXCEPT TO THE EXTENT OF ANY DEFENSE OR INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH UNDER THESE TERMS); OR (iii) EXCEPT FOR LOST BUSINESS, LOST REVENUE OR SIMILAR DAMAGES RESULTING FROM CUSTOMER'S BREACH OF SECTION 4 (LICENSE GRANT) OR SECTION 8 (OWNERSHIP AND USE OF CONTENT AND DATA), ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COST OF COVER, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICE, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Damages Cap. EACH PARTY'S LIABILITY UNDER THIS AGREEMENT, OR FOR PROVISION OR USE OF THE SERVICE OR ANY SOFTWARE, CONTENT OR DATA PROVIDED OR COLLECTED IN CONNECTION WITH THE SERVICE, WHETHER FOR CLAIMS ASSERTED BY THE OTHER PARTY (OR BY ITS AFFILIATES, SUPPLIERS, PARTNERS, REGISTERED AGENTS, ASSIGNEES, CLIENTS OR REGISTRANTS) OR FOR INDEMNIFIED THIRD PARTY CLAIMS, OR FOR ANY RECOVERABLE LOSSES, DAMAGES, OR LITIGATION AND ATTORNEYS' FEES OR COSTS ARISING UNDER THIS AGREEMENT INCLUDING ANY ORDER FORM(S), SHALL BE LIMITED TO THE AMOUNT OF THE OTHER PARTY'S ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL CLAIMS), THE TOTAL ANNUAL AMOUNT PAID OR PAYABLE UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IF NO FEE IS PAID TO CVENT, CVENT DOES NOT RETAIN ANY LIABILITY.
THESE LIMITATIONS OF LIABILITY WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT.
Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges and agrees that use of the Service to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Service and therefore Customer shall be solely responsible for any such use of the Service by Customer or its employees, agents, subcontractors or users (including third-party exhibitors authorized by Customer) and Cvent shall bear no risk or liability for same. "Sensitive Personal Information" shall be defined as (a) social security numbers; (b) passport numbers or other government issued id numbers; (c) date of birth; (d) gender; (e) health or medical information; (f) financial account information, including payment card information; and (g) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, email address, and phone number).
All matters with respect to the Service, these Terms, any Order Form, and SOW(s) will be governed by the laws of the Commonwealth of Virginia, USA, without regard to any conflict of law principles, and the parties agree to the sole and exclusive venue of the state and federal courts encompassing Arlington, Virginia for all matters arising with respect to same. The parties waive their right to a jury trial. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply hereunder.
Any notice hereunder shall be in writing and shall be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail; (ii) when delivered if delivered personally or sent by express courier service; (iii) when transmitted if sent by a confirmed facsimile; or (iv) when transmitted via email, provided that the receiving party acknowledges receipt by return email.
Customer agrees that Customer, its organization and affiliates, will not attempt to hire, or assist in hiring anyone currently employed by Cvent, except insofar as such recruitment results from a general solicitation of employment not specifically directed towards employees or subcontractors of Cvent. Customer further agrees that should such a situation occur, Cvent would be caused irreparable harm and be entitled to injunctive relief.
Cvent will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by Customer, its employees, agents, or contractors. The parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of their respective obligations hereunder. Cvent is not liable for excusable delay.
These Terms are not intended to, and do not confer any rights, benefits or remedies upon any person other than the parties.
The Software and other technology Cvent makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
You agree that neither you, nor any officer, director, employee, subsidiary, affiliate, agent, representative or other person working on your behalf in connection with your use of the Site or receipt of any Services, will violate any anti-corruption or anti-bribery laws, statutes and regulations of any country, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977, as amended (the "FCPA") and the UK Bribery Act 2010. You warrant that you will not engage in any bribery, extortion, kickbacks, or other unlawful or improper means of conducting business. You also warrant and covenant that you and your officers, directors, employees, agents and representatives have not violated, and will strictly comply with, the anticorruption or anti-bribery laws, statutes and regulations of any country which makes it unlawful to offer, pay, promise to pay, or authorize the payment of any money, or to offer, give, promise to give, or authorize the giving of anything of value, directly or indirectly, inter alia to a Covered Recipient (defined herein) for a Prohibited Purpose (defined herein). For purposes hereof, "Covered Recipient" means a foreign official (including employees of government-owned or controlled entities), foreign political party (including any official thereof), official or employee of an international public organization, or candidate for foreign political office; and "Prohibited Purpose" means assisting a party to obtain or retain business for or with, to secure an improper advantage, or to direct business to, any person, by:
You further warrant that you will not engage in any commercial bribery, kickback schemes, or other forms of improper payments to any person, private or public, and agrees that you will not create or submit any false, inaccurate, or misleading invoices or other business documents related to any use of the Site or Services. You will permit, upon request, Cvent reasonable access to your books and records and/or to conduct periodic or ad hoc audits, as Cvent deems necessary. Upon request, you agree to provide Cvent with a written certification attesting your compliance with the foregoing anticorruption requirements.
You agree that Cvent may use Your organization's name and logo to identify You as a customer of Cvent on Cvent's website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as a part of a general list of Cvent's customers for use and reference in Cvent's corporate and marketing literature. Additionally, you agree that Cvent may issue a press release identifying you as a Cvent customer, subject to your prior approval which will not be unreasonably withheld or delayed.
Cvent shall be entitled to recover reasonable attorney's fees in the event Cvent is the prevailing party in any legal action to enforce or interpret this Agreement.
These Terms supersede any prior agreement or understanding between the parties whether oral or written in relation to its subject matter, and may only be modified by a written amendment signed by authorized representatives of each party, except solely in connection with additional purchases under an active Order Form, which may be transacted via email. Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by Cvent without need of further notice of objection, even if such document is acknowledged or accepted by Cvent, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Cvent. The provisions of these Terms shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Cvent's failure to exercise or enforce any right, power or remedy under these Terms shall not operate as a waiver thereof.
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