LEGAL INFORMATION

Master Services Agreement

THIS AGREEMENT GOVERNS YOUR LICENSE AND USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on August 9th, 2017. It is effective between You and Us as of the date of You accepting this Agreement.

NOW THEREFORE in consideration of the covenants contained in this Master Services Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

DEFINITIONS

“Contact” means the record of a person, with at minimum first name, last name or email address, in the Event Farm system that has interacted with the Event Farm platform in some way associated with an event that You created. The interactions measured include, but are not limited to: invitation delivered, RSVP yes, RSVP no, registration, transferring a ticket, receiving a transfer of a ticket, purchase of a ticket, being added to a guest list, being checked-in to an event, and being assigned a ticket block. For the avoidance of doubt, there can be multiple contacts for a single invitee/attendee.

“Effective Date” means the start date of the contracted licenses and Services we provide to You.

“Email” means any electronic message sent from the Event Farm System on Your behalf including, but not limited to: invitations, RSVP confirmations, messages to guests, purchase receipts, etc.

“Event” means an event created in the Event Farm System that has any of the following: a ticket type created, a minimum of (1) Contact on the guest list, an Email sent.

“Event Farm System” means the web and mobile check-in applications used by You to create, manage, and edit Events, guest lists, and various Email communication between You and Your Contacts.

“Order Form” means the applicable written document, signed by You and Us, for Configurations or other technical services to be provided in relation to Software provided to You under an Order Form and which shall be deemed to form part of that Order Form. An Order Form may include Your Requirements; terms and conditions for the provision of technical services; provisions with respect to delivery, installation and payment terms; and any other relevant terms and conditions with respect to Configurations or the provision of technical services.

“Personal Information” means information that directly identifies an individual, and includes name, email address, phone number, and physical address. We do not claim ownership of Personal Information or other material provided by You through use of the Event Farm System.

“Services Term” means the length of which You are licensing software and Services from Us.

“Standard Annual Fee” means the annual cost of Our licenses and Services before any discounts offered to You.

“We,” “Us” or “Our” means the Event Farm Inc. company described in Section 19 (Who You Are Contracting With and Notices).

“You” or “Your” means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.

SCOPE OF AGREEMENT

1. It is the intention of You and Us that, where particular Software and Services are to be made available by Us under this Master Agreement, particular details and terms will be specified in an Order Form. If there is a conflict between the Order Form and this Master Agreement, the Order Form will prevail over the conflicting provisions of this Master Agreement to the extent of the inconsistency but only for the purposes of that Order Form. Except for such conflicts, the provisions of this Master Agreement will not be deemed to be amended, cancelled, waived or released by the execution of an Order Form.
2. Each Order Form shall contain the following minimum information, to the extent the same is applicable:
   1. The incorporation of this Master Agreement by reference;
   2. A list and description of the applicable Software and/or Software Services;
   3. Configurations, if any, to the Software and the terms and conditions upon which those configurations will be provided;
   4. Cost estimates, if applicable;
   5. The Subscription Fees for the Software;
   6. Training;
   7. Services Term;
   8. Any terms relating to the maintenance, enhancement and support of the Software; and Any special terms and conditions agreed upon by You and Us.

SERVICES

1. Provision of Selected Services; Right to Use. You agree to purchase from Us the Services (the “Services”) selected by You on the Order Form, commencing on the Effective Date. During the Services Term, and in connection with Our provision of Services under this Agreement, You shall have a limited, non-exclusive, non-transferable right to use, access, display, run, and otherwise interact with, in its intended manner, those certain computer software programs and tools developed by Us, used to provide the Services, and hosted on servers owned by and/or controlled by Us (the “Event Farm System”).
2. Contact Usage. Use of the Services includes the right to store up to maximum number of Contacts per year in the Event Farm System. The maximum number of Contacts per year and the price to add additional Contacts is set forth in the Order Form.
3. Email Usage. Use of the Services includes the right to send up to a maximum number of Emails per year from the Event Farm System. This includes, but is not limited to invitations, confirmation Emails and messages to guests. The maximum number of Emails per year and the price to add additional Emails is set forth in the Order Form.

FEES, PAYMENT TERMS AND TAXES

1. Fees The fees and charges payable for the Services (the “Fees”) are dependent on the types of Services selected by You. The Fees applicable for Services under this Agreement are set forth on the Order Form. If You select a multi-year Services Term and receive Multi-Year Discount pricing in return, You understand and agree that You are committing to paying the Annual Fee for each year of the Services Term, and that early termination amounts will apply in accordance with the Section 5 in this agreement.
2. Payment of Fees by You is due within thirty (30) days of date of invoice, unless otherwise specified on the Order Form (the “Due Date”). Unpaid amounts will bear interest at the rate of two percent (2%) per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily until the date paid.
3. Taxes The Fees and charges payable under this Agreement do not include any taxes, fees, duties or other charges assessed or imposed by any governmental authority. You will pay or reimburse Us for all such governmental charges upon demand or provide certificates or other evidence of exemption; provided, however, that We will be responsible for paying any income taxes imposed on Us.

TERM AND TERMINATION

1. Initial Services Term; Automatic One-Year Renewal Services Terms. The initial term of this Agreement will commence on the Effective Date and will continue until the end of the Services Term selected by You. After the initial term, the Agreement will automatically renew for successive one-year Services Terms unless either party provides the other with written notice of its intent not to renew. Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Services Term. Unless the parties agree otherwise, the Fees for each one-year renewal Services Term will be the Standard Annual Fee and other Fees in effect as of the end of the initial Services Term. Should You decide not to renew, You must send the notice of non-renewal by email to accounts@eventfarm.com.
2. Termination by Breach of Agreement. If either party commits a breach or default under this Agreement, then the other party may give written notice of the breach or default, and the Agreement and terms of Your Order Form will terminate if the breach or default is not cured within 30 days after receipt of such notice (or such later date as may be specified in such notice). In addition, either party may terminate the Agreement immediately following written notice to the other party if the other party: (a) ceases to do business in the normal course; (b) is declared bankrupt; (c) is the subject of any proceeding related to its bankruptcy, liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) calendar days; or (d) makes a general assignment for the benefit of creditors.
3. Cancellation. You retain the ability to cancel this Agreement and the terms of Your Order Form within (30) days of the Effective Date for 100% refund of Your Standard Annual Fee unless You have created an Event within the Event Farm System in which case You will receive 50% of Your Standard Annual Fee. For Agreements that include Multi-Year Services Terms, any cancellation after Your initial Services Term must be made no later than (30) days before the start of Your next Services Term to relinquish You from any payment obligations to Us for the upcoming Services Term. For agreements that include a maximum of (1) Event, any cancellation would not warrant a refund.
4. Payment Services. Should We provide merchant account processing services (“Payment Services”) to You as part of the Service, those Payment Services are made available at the rates and fees (“Fees”) described in Your Order Form. The Fees include, but are not limited to, charges for transactions (such as processing a payment) and for other events connected with processing payments for You (such as handling a disputed charge). We may charge additional Fees for cross-border transactions or foreign exchange services. In addition to the Fees, You are also responsible for any penalties or fines imposed on You or Us by any bank, money services business, payment network, or other financial intermediary (each a “Financial Services Provider”) resulting from Your use of Payment Services in a manner not permitted by this Agreement or a Financial Services Provider’s rules and regulations.
5. Monies will be remitted to You by way of check or ACH transfer, as You and Us mutually agree to in Your Order Form. You will be limited to a maximum of three (3) remittances per Event. We may retain up to twenty-five percent (25%) of all monies collected for thirty (30) days following each Event as a reserve against charge-backs, disputed charges and refund requests by Your Contacts; provided, however that We agree to notify You of any said requests. We shall make all commercially reasonable efforts to contact You to arrange for such remittances. Any such amounts not claimed by You within ninety (90) days following termination of this Agreement shall be deemed forfeited by You.
6. Additional Terms and Conditions. Your use of the Services and the Event Farm System, is subject to: (i) additional terms and conditions set forth in Event Farm’s Terms of Service (“Terms of Service”), including Our Acceptable Use Policy contained therein, which can be found here https://www.eventfarm.com/terms-of-service , and (ii) the additional terms and conditions set forth in this Agreement. To the extent there is any inconsistency among the main body of the Agreement, the Terms of Service, and the Additional Terms, the following order of priority shall control: (i) the main body of the Agreement, (ii) the Additional Terms, and (iii) the Terms of Service.

AUTHORIZED USERS OF EVENT FARM SYSTEM

You may authorize only those individuals to use the Event Farm System who are: (1) part of Your enterprise (other than Your Affiliates), or (2) acting on behalf of Your enterprise and carrying out the purpose of Your enterprise. In no event shall You make use of the Event Farm System for the benefit of a third party or an outside entity using Your rights hereunder. Any other use of the Event Farm System is prohibited.

OWNERSHIP AND RESTRICTIONS OF USE

1. As between You and Us, We retains all right, title, and interest in and to the Event Farm System and the Services, including, without limitation, any and all content, URLs, domain names, technology, software, code, user interfaces, “look and feel” and other items included therein, and all intellectual property rights therein (the “Proprietary Materials”), exclusive of content provided by You.
2. You will not, and will not assist, authorize, permit or encourage any third party to: (1) allow any unauthorized user to access or use the Services; (2) reverse engineer, decompile or disassemble any source code or otherwise attempt to discover any source code or trade secrets related to any of the Proprietary Materials; (3) distribute, license, rent, sell, retransmit, publish, lease or otherwise transfer or disclose any Proprietary Materials to any third party; or (4) modify, or create derivative works based on, any of the Proprietary Materials.

SERVICE MONITORING AND SUSPENSION

We reserve the right to monitor and audit Your use of the Event Farm System and the Services for compliance with this Agreement and Applicable Law. We reserve the right to immediately suspend or disable Your access to or use of the Services, without notice or liability to You, if We believe: (a) that the Services are being used in breach of this Agreement or applicable federal, state, or local laws or regulations (“Applicable Law”); (2) such suspension is necessary to prevent unauthorized access to or harm to the Event Farm System or the Services or harm to one of Our employees; or (3) such suspension is necessary to comply with Our legal obligations.

USE OF PERSONAL INFORMATION

1. You acknowledge that to provide the Services, We collect Personal Information concerning the Contacts who are invited to or attend Events and information about Contacts’ activities at Your Event(s) and We will use such information only in accordance with Our Privacy Policy, which can be found here Privacy Policy.
2. You are fully responsible for any collection, use or sharing of Personal Information in compliance with all applicable laws in all jurisdictions, including, but not limited to, laws regulating the contacting of individuals for commercial use.

CONFIDENTIAL INFORMATION

1. Definition of Confidential Information. “Confidential Information” means all 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 includes, but is not limited to, technology and technical information, trade secrets, business plans, promotional and marketing activities, security policies, business processes disclosed by such party, the terms and conditions of this agreement and all Order Forms (including pricing). Confidential Information does not include any information that: (a) was known to the Receiving Party prior to it’s disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (b) is independently developed by the Receiving Party without reliance on any Confidential Information of the Disclosing Party; (c) is acquired from a third party without breach of any obligation owed to the Disclosing Party; or (d) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or through no fault or action of the Receiving Party or any wrongdoing by a third party.
2. The Receiving Party will protect the Confidential Information of the Disclosing Party against any unauthorized use or disclosure to the same extent that the Receiving Party protects its own Confidential Information of a similar nature against unauthorized use or disclosure. Each party reserves ownership of its own Confidential Information. Except as otherwise expressly set forth in this Agreement, the Receiving Party will use Confidential Information of the Disclosing Party solely for the purposes for which it is provided. The parties acknowledge and agree that this section will not be interpreted or construed to prohibit: (a) any use or disclosure that is necessary for the Receiving Party’s performance of its obligations under this Agreement; (b) any use or disclosure required by applicable law (e.g., under applicable securities laws or legal or regulatory process); provided, that the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable advance notice thereof (e.g., so as to afford the Disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the prior written consent of the Disclosing Party.

LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY, ITS SUPPLIERS AND LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND STOCKHOLDERS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES ARISING HEREUNDER, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. EACH PARTY’S AGGREGATE MAXIMUM LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO EVENT FARM PURSUANT TO THE TERMS OF THIS AGREEMENT; PROVIDED, HOWEVER THAT SUCH AGGREGATE MAXIMUM LIABILITY LIMIT SHALL NOT APPLY TO A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 14 BELOW.

DISCLAIMER OF WARRANTIES

To the maximum extent permitted by law and except as expressly provided in this Agreement, the Event Farm System and the Services are provided “as is” and “as available,” with all faults and without warranty of any kind. We hereby disclaim all representations, warranties and conditions with respect to the website or the Services, either expressed, implied or arising by law, including but not limited to, the implied warranties and/or conditions of merchantability, fitness for a particular purpose, accuracy, completeness, quiet enjoyment, and non-infringement of third party rights. We do not warrant that the operation of the Event Farm System or Services will be uninterrupted or error-free. We are not responsible for typographical errors or omissions related to the Services. We do not represent or warrant that the website or Services are free of viruses or other harmful components.

EVENTS BEYOND OUR REASONABLE CONTROL

We will not be liable under this Agreement as a result of any cause or condition beyond its reasonable control, including without limitation: fire, explosion, earthquake, storm, flood, wind, drought, and act of God or the elements; court order; act or delay or failure to act by any civil, military or other governmental authority; strike, lockout or other labor dispute; riot, insurrection, sabotage or war, failure or unavailability of required equipment, supplies, goods, utilities, services or items to be provided by any third party; or any act, delay or failure to act by You or any third party.

INDEMNIFICATION

We will defend You, and Your affiliates, and their respective directors, officers, employees, parents, affiliates, agents, successors and assigns (the “Indemnified Party”), against any third party claim, demand, cause of action, costs, expenses or liability, including reasonable attorney’s fees, to the extent that (a) it is based upon a material breach of Our representations, warranties or obligations hereunder; or (b) it arises from any allegation that You and/or Your affiliates display, publicity or use of Services, content, trademark, copyright, patent, or other materials or Services provided or controlled by Us hereunder infringes or violates any intellectual property rights of any third party. The Indemnified Party must notify Us promptly in writing of any claim for indemnification hereunder, and provide, at Our expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow Us to control the defense and settlement of such claim, provided that the failure of the Indemnified Party to promptly inform Us of any claim shall not excuse Us of Our obligations under this Section 14 except to the extent such failure materially prejudices Us. Notwithstanding the foregoing, We shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnified Party may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense.

YOUR USE OF THE SERVICES SHALL COMPLY WITH APPLICABLE LAW

Your use of the Services shall comply with Applicable Law, including without limitation, the Can-Spam Act, other federal and state laws governing the sending of commercial emails, and federal and state data security and privacy laws.

NON-SOLICITATION

Neither You nor We shall solicit employees from the other party. No compensation of any kind may be offered or provided to any person currently compensated by the other party without prior written consent.

TRADEMARK NOTICE

We may include Your name, logo and a summary description of Your use of Our Services in Our published client list.

GENERAL PROVISIONS

1. This Agreement contains the parties’ entire agreement and understanding with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings related thereto. Modifications of this Agreement shall be binding only if made in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be interpreted or limited so as to best accomplish the intent of the parties within the limits of applicable law, and the remaining provisions contained in this Agreement will remain in full force and effect.
2. You may not assign this Agreement or any of its rights or obligations hereunder, directly, by operation of law or otherwise, without the prior written consent of Us. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
3. The failure of Us to insist upon or enforce performance by You of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of Our right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
4. The provisions of this Agreement which by their nature or express language are intended to survive the termination or expiration of this Agreement.
5. This Agreement shall be governed by Georgia law, excluding its choice of law rules.
6. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Atlanta, Georgia before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction.

WHO YOU ARE CONTRACTING WITH AND NOTICES

Who You are contracting with under this Agreement, who You should direct notices to under this Agreement:

Event Farm

C/O MemberSuite, Inc.

47 Perimeter Center East, Suite 300

Atlanta, GA 30346