Please read these terms of service (the “Terms of Service”) and Client’s (as defined below) respective Order Form (the “Order Form”, and together, the “Agreement”) carefully. This Agreement is by and between the Client and Fevo, Inc. (“Fevo”) and governs Client’s access to and use of the Services (as defined below) and Fevo Properties (as defined below). All references to “Client” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting, as described in the Order Form.
1. SERVICES AND LICENSES.
1.1 Services. Subject to these Terms of Service, Fevo will provide Client with (a) the ability to use and display Fevo’s group ticket purchasing platform (the “Fevo Platform”) on the Client Properties (as set forth on the Order Form) solely in accordance with the rights granted in Section 1.3 below and (b) facilitate, manage and process the sale of tickets by Client to its customers (“Tickets”) for the Events (as defined in the Order Form) via the Client Properties (as defined in the Order Form) and the Fevo Website (as defined below), or as otherwise mutually agreed by the parties from time to time (collectively, the “Services”) in the Territory (as defined in the Order Form). Client agrees that Fevo shall be Client’s exclusive provider during the Term of any and all services similar to the Services, including services relating to social or group sales of Tickets. Nothing herein shall limit Fevo’s ability to provide services similar to the Services to any other person or entity.
1.2 Client Content; Feedback.
(a) Client hereby grants Fevo a non-exclusive, transferable, sublicensable, fully paid-up and royalty-free right and license to access, copy, perform, modify, display, process and otherwise use the content, information and materials originated by Client that Client submits or provides in connection with the Services (the “Client Content”) solely for the purpose of performing the Services, including to incorporate Client’s Ticket and Event (as defined in the Order Form) information and branding elements as part of the Services. Client shall reasonably cooperate with Fevo to provide any Client Content necessary for Fevo’s performance of the Services. Client agrees that it shall bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of the Client Content and Fevo’s access, possession and use as permitted herein.
(b) Client agrees that Fevo is free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services (including that which it could have acquired performing the same or similar services for another client) to the extent that the same does not include the intentional disclosure of any of Client’s Confidential Information. Client hereby grants Fevo a perpetual, irrevocable, royalty-free and fully paid-up license to use and exploit all feedback, suggestions and comments provided by Client to Fevo with regards to the Fevo Properties and/or the Services, in connection with Fevo’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Fevo Properties.
1.3 Fevo Licenses. Subject to the terms and conditions of this Agreement, Fevo grants Client a limited, non-exclusive, non-transferable right and license (without right to sublicense), in the United States and Canada to (a) embed the code provided by Fevo hereunder on the Client Properties solely to utilize the Fevo Platform with the Client Properties; and (b) use and display the Fevo Platform solely on the Client Properties. Fevo shall implement, in consultation with Client, aesthetic modifications to the Fevo Platform in order to endeavor to match the general look and feel of Client’s branding elements. Fevo will not be liable for any failures in the Fevo Platform, Services, or any other problems which are related to (i) the Client Content, (ii) any equipment or service outside of Fevo’s facilities or control, or (iii) unauthorized access, breach of firewalls or other hacking by third parties or (iv) any Force Majeure Event.
1.4 Suspension Rights. Without limiting any other rights or remedies, Fevo, at its sole discretion, may suspend Client’s access to the Services if Fevo believes (i) that Client has violated, or Client’s use of the Services is in violation of, any of the terms of this Agreement, (ii) that there has been an excessive number of disputes, refunds or reversals of Ticket purchases or (iii) there has been fraud, unlawful or other suspicious activity.
1.5 Third Party Payments/Events. The parties may agree to enable the Services for Fevo to make certain payments to third parties at Client’s request, including without limitation, with respect to charity Events (“Charity Events”). In such event, where applicable for such payments to third parties (including any Charity Events), Client will make available to Fevo documents that detail Client’s due diligence and registration process for charities, which include certain risk-based controls such as anti-money laundering (AML) and “know your customer” (KYC) screenings and upon Fevo’s reasonable request from time to time, Client will provide updates related thereto. With respect to Charity Events, Client will further screen the charity and related fundraising campaign against relevant compliance databases (such as the list maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control), and will provide Fevo with a response indicating whether the initial screening produced a positive or negative result; Fevo will not be required to provide the Services for use with any Charity Event that receives a positive result on such screening. With respect to any use of the Services for Charity Events (including the solicitation of charitable donations), Client is responsible for all obligations with respect to the Charity Events including without limitation, any applicable registration and/or tax reporting obligations imposed by tax and other regulatory authorities within the Territory (including 1099-K reporting), Client acknowledges that Fevo shall not be responsible or otherwise liable with respect to any of the foregoing, and Client shall indemnify and hold Fevo harmless from any and all actions, Claims (as defined below), or regulatory fines or penalties arising out of any payments made by Fevo for Client’s benefit including without limitation, with respect to the Charity Events and any breach of Client’s obligations under this Section 1.5. Without limiting the foregoing, Client has available and will employ procedures to reasonably ensure that funds received by any third party, including charity entities, cannot be used in contravention of Laws (as defined below) regarding money laundering, fraud or conspiracy. Client will employ resources to investigate suspicious activity or persons and to eliminate suspicious or unlawful behavior, and in any event shall immediately cease any activity with any entity to which suspicious or unlawful behavior is known to Client. In addition, Client warrants that its systems, technology, policies and procedures have been designed and developed to ensure that its activities with respect to handling charitable donations will conform to all applicable Laws, including being properly licensed in each jurisdiction in which the conduct of such activities requires it to be so licensed.
2. PROPRIETARY RIGHTS.
2.1 Client. Except for the limited licenses expressly granted in this Agreement, no other rights or licenses are granted, no other uses are permitted and Client shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Client Content.
2.2 Fevo. Except for the limited licenses expressly granted in this Agreement, no other rights or licenses are granted, no other uses are permitted and Fevo (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to (a) the Fevo Platform; and (b) Fevo’s website located at the URL www.fevo.com and including subdomains created by Fevo to which the Fevo Platform directs (the “Fevo Website” and together with the Fevo Platform, the “Fevo Properties”).
2.3 Restrictions. Client shall not, and shall not attempt to, directly or indirectly (a) rent, lease, sublicense, encumber, distribute, transfer, copy, reproduce, modify or timeshare any Fevo Property or any portion thereof; (b) use any information provided to it by Fevo to create any application, service, software or documentation that is similar to any Fevo Property; (c) use the Fevo Properties or any of Fevo’s Confidential Information for any competitive purpose, including to develop any product or service that competes, directly or indirectly, with any products or services offered by Fevo; (d) adapt, combine, create derivative works of or otherwise modify any Fevo Property; (e) translate, disassemble, decompile, reverse engineer or otherwise attempt to discover any source code, algorithms or trade secrets underlying any Fevo Property or any portion thereof (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (f) probe, scan or test the vulnerability of any Fevo Property; (g) breach the security or authorization measures of any Fevo Property; (h) use, or permit the use of, the Services in violation of applicable local, state or federal law, statute, rule, regulation legislation, or order, or industry code, policy or standard (“Law”); or (i) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
3. FEVO OBLIGATIONS.
3.1 Ticket Orders. Fevo shall accept and be responsible for the processing of online orders, including via a third-party payment processor, for Tickets to Events made through the Fevo Platform, and shall submit the Settlement Payment (as defined below) to Client in accordance with Section 6.
3.2 Support. Fevo shall use commercially reasonable efforts to provide general support to purchasers of Tickets through the Fevo Platform (“Customers”), including answering questions about the Events, subject to Section 4.3.
3.3 Event Pages on Fevo Website. Fevo shall implement, in consultation with Client, a page on the Fevo Website for each Event through which a Customer’s friends and invitees may also purchase Tickets to the Event.
4. CLIENT OBLIGATIONS.
4.1 Integration. Client shall integrate the Fevo Platform onto the Client Properties in accordance with Fevo’s reasonable instructions and the rights and licensed granted to Client.
4.2 Ticket Holds. Unless otherwise agreed, Client, as applicable, will place holds (i.e., withhold from sale) on a mutually agreed number of seats (in locations determined by Client in its sole discretion and communicated to Fevo via a seating map) at the applicable Ticket prices to each Event.
4.3 Support. Client shall provide second level support for Customer questions about the Events that cannot be answered by Fevo.
4.4 Information Request. Within seven (7) days of receipt of Fevo’s written request for information, Client will provide to Fevo information: (i) required by Fevo’s third-party payment processor(s); or (ii) required to comply with applicable Law.
5. CUSTOMER DATA.
5.1 Data Provided by Client to Fevo. All pre-existing data and information including to the extent provided by Client to Fevo, if applicable, shall, as between the parties, be solely and exclusively owned by Client and shall be used by Fevo to provide the Services. In these circumstances, to the extent that you are (i) a “business” and we process “personal information” (as those terms are defined by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020) on your behalf and/or (ii) a “controller” and we process “personal data” (as those terms are defined by other applicable United States state data privacy Laws) on your behalf, Fevo will comply with Section 2 (“U.S. State Law Privacy Addendum”) of Exhibit A – Data Processing Addendum.
5.2 Customer-Provided Information. Fevo and Client shall each independently own all rights in personal information provided by Customers via the Client Properties with respect to Ticket sales through the Fevo Properties (“Customer-Provided Information”). Each party may only use the Customer-Provided Information in accordance with its own applicable privacy policies or statements. All data and information derived, compiled, adapted or extrapolated from any Customer-Provided Information (“Additional Customer Information”) shall, as between the parties, be solely and exclusively owned by Fevo. Fevo grants to Client a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free and fully paid-up license to use, copy, modify and process the Additional Customer Information in deidentified and aggregated form in any lawful manner; provided, however, that Client may not provide, sell or otherwise share any Additional Customer Information with third parties without the prior written consent of Fevo.
5.3 Compliance with Data Privacy and Security Laws. Each party agrees that, at all times during the Term, it will comply with Exhibit A – Data Processing Addendum.
6.1 Billing and Payment Terms. Fevo will collect all proceeds from Ticket sales under this Agreement and remit such proceeds to Client, less the Fees (as defined in the Order Form), amount of CDs (as defined below) and any amounts refunded or to be refunded to Customers (collectively, the “Settlement Payment”). Fevo will use commercially reasonable efforts to remit Settlement Payments to Client by bank transfer, check or other mutually agreed to method within seven (7) business days following the conclusion of the Event.
6.2 Refunds. All Ticket sales are final, unless the Event is canceled or Client authorizes a refund prior to the Event in its sole discretion. If an Event is canceled or Client otherwise authorizes refunds to Customers, Fevo will issue refunds to such Customers for the applicable amount. However, Fees due or paid to Fevo based on such Ticket sales still apply and are non-refundable. It is agreed and understood that Fevo’s obligation to make any refunds is subject and limited to Fevo holding (or as described below, receiving from Client) the full amount of funds necessary to make refunds to all Ticket buyers properly entitled to a refund. Fevo may set off such refunds against any Settlement Payments payable to Client. If the amount of any Settlement Payment held by Fevo and not yet paid to Client is insufficient to cover refunds, Fevo will invoice Client for the total amount due and Client will provide Fevo with sufficient funds to cover such refunds within thirty (30) days of receiving an invoice.
6.3 Chargebacks and Disputes. Client is solely responsible for all chargebacks and disputed charges and the Fees associated therewith (collectively and individually, “CDs”), including those due to user or Customer error. Fevo will use commercially reasonable efforts, on behalf of Client, to reverse any CDs. In certain circumstances where Fevo determines the risk of loss is higher than normal, Fevo may place a portion of the Settlement Payments in reserve, which Client hereby authorizes Fevo to do as its sole discretion. Upon or after establishing the reserve, Fevo will notify Client of the amount, timing and conditions for release of such reserve funds to Client. Fevo reserves the right to deduct CDs from the Settlement Payment and reserve. If the then-current month’s Settlement Payment is insufficient to cover CDs, Fevo will invoice Client for the amount due (including any amount necessary to replenish the reserve) and Client will provide Fevo with sufficient funds to cover such CDs within thirty (30) days of receiving the invoice.
6.4 Taxes. Client is solely responsible for, and shall timely pay, any income, withholding, property, excise, sales, use or transfer taxes or fees (“Taxes”), which accrue or become due or payable, arising out of use of the Services and the gross proceeds from Ticket sales, including any such Taxes relating to the Settlement Payments. Client shall indemnify and hold Fevo harmless from any and all penalties, fines or other liabilities arising from Client’s failure to timely pay any Taxes.
7.1 Confidential Information. “Confidential Information” means any and all proprietary or non-public information in any form that is identified as confidential or proprietary or that by the nature of the information should, in good faith, be reasonably expected to be treated as proprietary or confidential, including any source code. All Confidential Information provided by the disclosing party will be maintained in confidence by the receiving party, and the receiving party will not, during the Term of this Agreement and for a period of two (2) years (or, in the case of any trade secrets or source code, indefinitely) following the expiration or termination of this Agreement, divulge to any person or organization, or use in any manner whatsoever, directly or indirectly, for any reason whatsoever, any of the Confidential Information without receiving the prior written consent of disclosing party. In the event this Agreement is terminated for any reason, or at any time upon the request of disclosing party, the receiving party agrees to return or destroy such Confidential Information, at the option of disclosing party, not including any information required for the receiving party to use or provide the Service.
7.2 Scope. Client acknowledges that Fevo does not wish to receive any Confidential Information from Client that is not necessary for Fevo to perform its obligations under this Agreement. Fevo will not use Confidential Information for any other purposes than in connection with performing its obligations and exercising its rights hereunder. Fevo shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Confidential Information.
7.3 Exceptions. The foregoing obligations shall not apply to any Confidential Information that (a) was already known by the receiving party prior to disclosure by the disclosing party without restriction, (b) rightfully and lawfully furnished to it without restriction by a third party not in breach of any obligation to disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by receiving party.
7.4 Compelled Disclosure. Nothing herein shall prevent either party from disclosing any Confidential Information as necessary pursuant to any court order or any legal, regulatory, Law enforcement or similar requirement or investigation; provided that, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose in order for the disclosing party to have an opportunity to seek a protective order or otherwise contest the disclosure and (b) cooperate with the disclosing party (at the disclosing party’s expense) in protecting against or minimizing any such disclosure or obtaining a protective order.
7.5 Nothing in this Section 7 shall be construed to convey to the receiving party any right, title or interest in or to any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential Information, except that the receiving party may use Confidential Information as expressly permitted herein.
8. WARRANTIES AND DISCLAIMERS.
8.1 Mutual Representations. Each party represents and warrants to the other that: (a) it has full right, power and authority to enter into and fully perform its obligations under this Agreement; and (b) the execution, delivery and performance of this Agreement by that party does not conflict with any other agreement to which it is a party or by which it is bound or with Law to that party.
8.2 Additional Client Representations. Client represents and warrants, on behalf of itself and any of its Affiliates (as defined below), successors, parents, or subsidiaries, that (a) it owns all right, title and interest, or possesses sufficient license rights, in and to the Client Content as may be necessary to permit the use contemplated under this Agreement, and the use thereof will not infringe, misappropriate or otherwise violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws, (b) as applicable, Client is registered for sales and use tax collection purposes in all states in which Client’s goods and services will be provided pursuant to the terms and presentation of Tickets; (c) Tickets, upon being activated and delivered to Ticket buyers by Fevo shall be available immediately for redemption by the Ticket buyer; and (d) Client’s use of the Services and the terms and conditions of Tickets, including any discounts or incentives or goods and services offered thereunder, comply with all, and do not and will not violate any Laws, including but not limited to, (i) all Laws governing the use, sale, and/or distribution of alcohol, (ii) all Laws governing vouchers, gift cards, coupons, and/or gift certificates, and (iii) the CAN-SPAM Act of 2003 (i.e., 15 U.S.C. § 7701). “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
8.3 Disclaimers. THE SERVICES ARE PROVIDED AS-IS, AND CLIENT’S USE OF THE SERVICES IS AT CLIENT’S SOLE RISK. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 8, THE SERVICES AND FEVO PROPERTIES ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, FEVO MAKES NO REPRESENTATION OR WARRANTY (I) THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SYSTEM, (III) THAT ANY ERRORS IN THE SYSTEM WILL BE CORRECTED, OR (IV) THAT THE SERVICES OR THE FEVO PROPERTIES DO NOT INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 8, TO THE FULLEST EXTENT PERMITTED BY LAW, FEVO HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES, AND ITS AND ITS RESPCECTIVE LICENSORS AND SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, INTEROPERABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
9.1 Fevo Indemnification. Fevo agrees to defend, indemnify and hold harmless Client from and against any and all finally awarded damages, costs, expenses, liabilities, including reasonable attorneys’ fees, expenses and costs in the defense and disposition of such matters in any way arising by reason of or relating to any claim by any third party (including any governmental authority) (together, “Claims”) that the Fevo Properties as provided to Client infringe or misappropriate any copyright, patent, trade secret or other intellectual property right of such third party in the Territory. Fevo shall have no obligation to Client hereunder to the extent such Claims are caused by (a) any use of the Fevo Properties not strictly in accordance with this Agreement, (b) modifications to the Fevo Properties, or combinations of the Fevo Properties with properties, hardware, software or other materials, not provided by Fevo, (c) that portion of the Fevo Properties that implements Client’s requirements, specifications or instructions, (d) Client Content, (e) Client’s continuing allegedly infringing activity, including with respect to the Fevo Properties, after being notified that such activity was alleged to be infringing, and (f) Client’s continuing use of any version of the Fevo Properties after being provided modifications that would have avoided the alleged infringement (collectively, the “Fevo Indemnity Exclusions”). The foregoing states the entire liability of Fevo, and the Client’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services or any part thereof or by its use or operation.
9.2 Client Indemnification. Client agrees to defend, indemnify and hold harmless Fevo and its Affiliates, and their respective directors, officers, employees, consultants, agents, subcontractors and licensors (“Fevo Indemnified Parties”) from and against any and all Claims in any way arising by reason of or relating to: (a) Client’s use or disclosure of Customer-Provided Information in violation of Fevo’s or Client’s privacy policies or statements; (b) Client’s breach of this Agreement, including any representations or warranties herein, or any violation of applicable Law; (c) any claim or allegation that any Client Content or Fevo’s use of such Client Content infringes or misappropriates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of any third party; (d) any Taxes arising from the transactions related to this Agreement, including the sale and subsequent redemption of Tickets (and including any interest, penalties or fines imposed by any competent court or tax authority); (e) any local, state or federal governmental entity Claims for unredeemed Tickets or unredeemed cash values of Tickets or any other amounts under any applicable Law, including any abandoned or unclaimed property or escheat Law, including but not limited to any claims for penalties and interest; (f) the products and services provided by Client, including but not limited to, any claims for false advertising, failure to deliver Tickets, product defects, personal injury, death, or property damages; (g) the Events; or (i) any acts or omissions that are Fevo Indemnity Exclusions.
9.3 Procedure. The indemnification obligations set forth in this Agreement are conditioned upon (a) the indemnified party providing the indemnifying party with prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith, provided, however, that failure to provide such notice shall not relieve the indemnifying party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure, (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim, provided that the indemnified party may participate at its own expense and must approve, such approval not to be unreasonably withheld, conditioned or delayed, with respect to the terms of any settlement or compromise that may impose any liability on, or adversely impact, the indemnified party (including its rights and obligations), and (c) reasonable cooperation of the indemnified party, at the indemnifying party’s expense, in connection with the settlement and defense of the applicable claim.
10. LIMITATION OF LIABILITY; INSURANCE.
10.1 EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO ANY INDEMNIFICATION OBLIGATION UNDER SECTION 9 OR ANY CONFIDENTIALITY OBLIGATION UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES) BE LIABLE TO THE OTHER PARTY (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH SUCH PARTY) CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOST PROFITS, LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, AND GOODWILL. EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO ANY INDEMNIFICATION OBLIGATION UNDER SECTION 9 OR ANY CONFIDENTIALITY OBLIGATION UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY’S DAMAGES, IN THE AGGREGATE, EXCEED THE AMOUNTS PAID HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRECEDING TWELVE (12) MONTH PERIOD, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO ANY INDEMNIFICATION OBLIGATION UNDER SECTION 9 OR ANY CONFIDENTIALITY OBLIGATION UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY’S DAMAGES, IN THE AGGREGATE, EXCEED THE LESSER OF (A) TWICE THE AMOUNTS PAID HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRECEDING TWELVE (12) MONTH PERIOD, AND (B) TWO MILLION DOLLARS ($2,000,000), IN EACH CASE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO (A) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY CLIENT, INCLUDING VIOLATION OF THE RESTRICTIONS SET FORTH IN SECTION 2.3 OR (B) SUCH PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10.2 Fevo agrees to maintain the following insurance coverage during the Term:
(a) General Liability, with limits of $5,000,000 per occurrence and $5,000,000 in the aggregate, through a combination of General Liability and Umbrella Liability policies;
(b) Automotive Liability, with a single limit (each accident) of $1,000,000;
(c) Media, Errors & Omissions, and Cyber Liability, with limits of liability of $5,000,000; and
(d) Crime Insurance, with a limit of $500,000 per occurrence.
11. TERM AND TERMINATION.
11.1 Term. This Agreement shall commence on the date last signed by the parties (the “Effective Date”) and shall continue for the Initial Term as specified on the Order Form. At the end of Initial Term or then-current Renewal Term (as applicable), the Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party otherwise provides the other party with written notice of its intent to terminate at least ninety (90) days prior to the expiration of the then-current Term.
11.2 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and, if able to be cured, fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes judicially declared insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
11.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including all payment obligations) and all remedies for breach of this Agreement shall survive, and (b) the provisions of Sections 1.2(b), 4.4, 5.1, 5.2, 7, 8.3, 9, 10, 11.3 and 12 shall survive any expiration or termination of the Agreement.
12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement (including the Order Form) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought.
12.2 General Changes. Fevo may make modifications, deletions and additions to this Agreement (“Changes”) from time to time in accordance with this Section 12.2. Changes to these Terms of Service will be posted here [https://fevo.me/tos], which Client should regularly check for the most recent version and also save the most up to date version for Client’s files. When Changes are made to the Terms of Service, Fevo will indicate the effective date of the Changes at the top of the Terms of Service. Changes to this Agreement do not create a renewed opportunity to opt out of or terminate the Agreement. By using the Services after the effective date of the Changes, Client agrees to the revised Terms of Service. Client agrees that Fevo may modify, delete, and make additions to its guides, statements, policies, and notices, with or without notice to Client, and for similar guides, statements, policies, and notices applicable to Client’s use of the Services by posting an updated version on the applicable webpage. In most instances, Client may subscribe to these webpages using an authorized email in order to receive certain updates to policies and notices.
12.3 Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.
12.4 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. A signed copy (including via electronic signature) of this Agreement transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes.
12.6 Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, USA, without regard to its conflicts of Law provisions. The sole and exclusive venue for actions related to or arising out of this Agreement will be the state and federal courts located in New York county, New York, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with any finally adjudicated action or proceeding and enforcing any judgment or order obtained therefrom.
12.7 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at Law or in equity. Each party agrees that, in the event of any breach or threatened breach of the confidentiality obligations set forth in Section 7, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at Law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.8 Publicity. During the Term of this Agreement, Fevo may use Client’s name and logo on the Fevo Website and in other promotional materials such as customer lists and other promotional and marketing materials.
12.9 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control (a “Force Majeure Event”), including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, transportation failures, failures of the Internet, communication outages, natural disasters, extreme weather, fires, explosions, war, terrorism, riots and acts of God, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
12.10 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices to Client shall be delivered to the address provided in the Order Form. Notices to Fevo shall be delivered to the following address: 12 Little W. 12th St, New York, NY 10014, with a copy (which shall not constitute notice) to: Ian Goldstein, Fenwick & West LLP, 902 Broadway, 14th Floor, New York, NY 10010. Either party may update its notice address by providing written notice thereof to the other party. All notices shall be in English, effective upon receipt.
12.11 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by the Client without Fevo’s prior written consent, not to be unreasonably withheld. Fevo may freely assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section 12.7 shall be deemed null and void ab initio. Fevo may use contractors and other third-party service providers in performing the Services. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
12.12 No Third-Party Beneficiaries. Except as otherwise provided herein (including in the indemnification provisions), this Agreement is solely for the benefit of the parties hereto, and nothing in this Agreement shall be deemed to create any third-party beneficiary rights in any person or entity not a party to this Agreement.
12.13 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.14 Headings; Construction. The headings contained herein are for the convenience of reference only and are not intended to define, limit, expand or describe the scope or intent of any provision of this Agreement. Whenever the words “include”, “includes”, “including”, “in particular” or “such as” are used, they are deemed to be followed by the words “without limitation”.
Exhibit A – Data Processing Addendum
This U.S. Data Processing Exhibit (this “DPA”) is incorporated into the Agreement between Client and Fevo, and it shall have the same Effective Date as the Agreement. If there is any conflict between the provisions of this DPA and the Agreement, this DPA shall control.
Section A is applicable to Personal Data that qualifies as Customer-Provided Information (see Section 5.2). Section B includes additional terms, as applicable, for Personal Data that is processed by Fevo as a Service Provider for Client (see Section 5.1).
The Parties agree as follows:
Section A – Customer-Provided Information
a) “Data Privacy and Security Laws” means any applicable law related to data privacy or security of Personal Data.
b) “Personal Data” shall have the same meaning as “personal data” and “personal information” under each applicable State Data Privacy and Security Laws.
c) “Process,” “Processed” or “Processing” means any operation or set of operations that are performed on Personal Data or on sets of Personal Data, including by automated means.
d) “Processor,” means Fevo, only at times it is acting as a processor of data.
e) “Security Incident” means any breach that results in unauthorized access to or loss of any Personal Data.
2) PROCESSING OF PERSONAL DATA
a) Each parties agree to only Process Personal Data in compliance with its own privacy policies and obligations under all applicable Data Privacy and Security Laws, including with respect to the collection, processing, storage, protection and disclosure, of personal information.
b) If either party receives a request from a Customer to exercise rights with respect to Personal Data about such Customer (such as, by way of example, a request to access, correct, or delete personal information), such party will promptly notify the other party and the parties will work together to address, respond to, and resolve such request in a timely manner.
3) DATA SECURITY
a) Each party agrees to maintain an industry standard information security program which contains commercially reasonable administrative, technical and physical safeguards to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer-Provided Information (including Personal Data) and any other Confidential Information received from the other party.
b) To the extent that either party becomes aware of a Security Incident that results in the loss or misuse of any Customer-Provided Personal Data, such party will promptly, and without undue delay, notify the other party in writing, reasonably cooperate with the other party, and, if such loss or breach is due to an act or omission of the party or its employees, it shall take all reasonable actions in accordance with applicable Data Privacy and Security Laws to remedy and remediate the breach.
Section B – Data Processed by Fevo as a Service Provider
a) “Controller Personal Data” means Personal Data provided by Controller to Processor, collected by Processor on behalf of Controller, or otherwise Processed by Processor, pursuant to the Agreement.
b) “Sensitive Personal Data” means Personal Data that includes an individual’s: Social Security or government-issued identification number; account log-in information, financial or payment-card number with any required security or access code, password, or credentials; precise geolocation; racial or ethnic origin, religious or philosophical beliefs, or union membership; the contents of communications; genetic data. Sensitive Personal Data also includes the Processing of biometric information for identification purposes; Personal Data concerning an individual’s health, sex life, or sexual orientation; or “sensitive personal information” as defined under applicable State Data Privacy Laws.
c) “Specified Purpose” has the meaning set forth in Appendix 1 attached hereto and incorporated herein.
d) “State Data Privacy Laws” means applicable U.S. state data privacy Laws that govern Processor’s collection, use, disclosure, or Processing of Controller’s Personal Data, including, but not limited to, the California Consumer Privacy Act (Cal. Civ. Code § 1798.100 et seq.), as amended, and its implementing regulations (C.C.R. Tit. 11, Div. 6, Ch. 1), the Colorado Privacy Act (C.R.S. § 6-1-1301 et seq.) and its implementing regulations, the Virginia Consumer Data Protection Act (Va. Code § 59.1-575 et seq.), the Connecticut Data Privacy Act (Public Act No. 22-15), and the Utah Consumer Privacy Act (Utah Code § 13-61-101 et seq.).
e) Capitalized terms that are not defined herein shall have the same meaning as in applicable State Data Privacy Laws.
2) PROCESSING RIGHTS AND REQUIREMENTS
a) General Obligations. Processor will Process Controller Personal Data in compliance with applicable laws, including applicable State Data Privacy Laws, at all times and in compliance with this DPA. For the purposes of this DPA, Processor is a “service provider,” “contractor,” or “processor” or similar applicable term defined under applicable State Data Privacy Law. Processor will not disclose Personal Data to any third party, except pursuant to this DPA.
b) Scope of the Processing. Processor will Process Controller Personal Data pursuant to the purpose set forth the Agreement, and in compliance with this DPA and State Data Privacy Laws. Processor shall not Process Controller Personal Data for purposes other than the Specified Purposes set forth in Appendix 1. The Parties agree to abide by the Processing specifications for Controller Personal Data, attached hereto in Appendix 1.
c) Prohibited Uses. Processor is prohibited from and represents and certifies its understanding that it is prohibited from:
i. Selling, sharing, or otherwise disclosing Controller Personal Data to any third party, as such concepts are defined each under applicable State Data Privacy Laws;
ii. using, retaining, or disclosing Controller Personal Data for any purpose other than the Specified Purpose or engaging a subcontractor in compliance with the DPA, including any other commercial purpose;
iii. using, retaining, or disclosing Controller Personal Data outside of the direct relationship between Controller and Processor;
iv. using, retaining, or disclosing Controller Personal Data against Controller’s instructions; and
v. combining or updating Controller Personal Data with Personal Data received from another source, including Processor’s own direct interaction with the consumer, unless expressly permitted applicable law, including applicable State Data Privacy Laws.
3) PROCESSING OBLIGATIONS
a) Cooperation. Although not contemplated – in the event that Processor Processes Sensitive Personal Data, in addition to the obligations set forth in this DPA, Processor shall comply with Controller’s written instructions to delete or limit the use of Sensitive Personal Data and instruct its sub-processors engaged in Processing Controller Personal Data to do the same. Processor shall make available to Controller information necessary to comply with and demonstrate Processor’s compliance with State Data Privacy Laws.
b) Data Subject Requests.
i. Processor shall cooperate with, and provide all reasonable support to cause Controller to comply with Controller’s obligations to data subjects under State Data Privacy Laws, including responding to data subject requests. Upon written request from Controller, Processor shall provide necessary information to Controller to fulfill its obligations under State Data Privacy Laws.
ii. In the event that any individual rights request from a data subject is made directly to Processor concerning Controller Personal Data, Processor shall promptly forward the request to Controller. Processor shall not respond to the request without Controller’s prior authorization.
iii. In the event that any request from applicable legal or regulatory authorities is made directly to Processor, Processor shall promptly forward the request to Controller, to the extent legally permitted to do so. Processor shall not respond to such communication directly without Controller’s prior authorization other than to inform the requestor that Processor is not authorized to directly respond to a request. If Processor is legally required to directly respond to such a request, Processor will promptly notify Controller and provide it with a copy of the request unless legally prohibited from doing so.
c) Data Processing Assessments. Processor shall provide information to Controller necessary to enable Controller to conduct and document any data processing or data protection assessments.
d) Data Retention and Deletion/Return. Processor shall only retain Personal Data for the duration of the Agreement, unless a different time period is agreed upon in writing. Except as required under applicable law, upon termination or expiration of the Agreement, Processor shall return, delete and/or destroy all Controller Personal Data. Controller shall decide, in its sole discretion, whether Processor shall return or delete Controller Personal Data upon the termination or expiration of the Agreement.
e) Confidentiality. Processor shall ensure that Processor personnel that Process Controller Personal Data keep the Controller Personal Data confidential, are subject to confidentiality obligations that are at least as strict as the requirements Processor has to protect its own confidential information, and are consistent with confidentiality provisions in the Agreement. Further, Processor shall provide information security and data protection or privacy training to its personnel that are Processing Controller Personal Data.
In the event that Processor engages sub-processors to assist it in providing its services to Controller, Processor shall enter into a written agreement with each sub-processor that requires the sub-processor to substantially meet the same terms of this DPA that are applicable to Processor. Upon request, Processor shall provide a list of all sub-processors used by Processor to Controller. If Controller reasonably objects to the retention of a sub-processor, the Parties shall work in good faith to resolve the basis for Controller’s objection.
Processor shall conduct audits and other technical reviews of its systems in accordance with State Data Privacy Laws, as well as appropriate and accepted control standards or frameworks. Processor shall, upon reasonable request on an annual basis, provide a written summary that has been created internally or by a third-party for Processor to demonstrate compliance with this requirement. Upon notice, Controller shall have the right to take, and Processor shall comply with, reasonable and appropriate steps to remediate or stop any unauthorized Processing of Controller Personal Data.
6) INFORMATION SECURITY
Processor and Controller shall implement and maintain technical and organizational security measures to protect the security, confidentiality, and integrity of Personal Data and to ensure a level of security appropriate to the risk. Further, Processor must assist in meeting Controller’s obligations regarding security of Processing Personal Data, including in relation to notice obligations in a Security Incident. If Processor becomes aware of a Security Incident, it shall promptly: (a) notify Controller; (b) provide relevant information, to the extent known, about the Data Incident to Controller; and (c) reasonably cooperate with Controller to support Controller’s reasonable reporting and notification obligations.
7) CHANGES IN STATE DATA PRIVACY LAWS
In the event that the State Data Privacy Laws are amended to incorporate additional requirements applicable to the Parties, those terms will be viewed as incorporated herein. Further, in the event Controller wants to amend these terms to comply with changes to State Data Privacy Laws, the Parties agree to cooperate in good faith to negotiate such amendments.
8) CERTIFICATION AND NOTIFICATION OBLIGATIONS
Processor certifies that it understands and will comply with the requirements set forth herein. If Processor becomes aware or makes a determination that it can no longer meet its obligations under applicable State Data Privacy Laws or this DPA, it shall promptly notify Controller.
The Parties agree that the Processing details are as follows:
i. Types of Personal Data Processed: (i) name, address, email, phone number, photo, and behavioral, demographic and marketing information relating to Customers; and (ii) business contact information relating to authorized users (including name, title, email address and phone number).
ii. Nature and Purpose of the Processing:
1. To execute the sale, fulfillment/delivery of the ticket/inventory on behalf of Client.
2. To analyze and make actionable insights on behalf of Client in an effort to improve their business operations and marketing efforts.
iii. Duration of the Processing: For the duration of the Agreement.