Last Revision: December 20, 2016
Welcome to Anyroad
AnyRoad Inc. (“AnyRoad”) provides its services (described below) to you (“Vendor”) through its website located at https://www.anyroad.com (the “Site”) and through its mobile applications, AnyGuide.com product and related services for an experience relationship management solution (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). AnyRoad reserves the right, at its sole discretion, to change or modify portions of these Terms of Service at any time. If AnyRoad does this, AnyRoad will post the changes on this page and will indicate at the top of this page the date these terms were last revised. AnyRoad will also notify Vendor, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Vendor’s continued use of the Service after the date any such changes become effective constitutes Vendor’s acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING VENDOR’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT VENDOR SUBMIT CLAIMS VENDOR HASAGAINST ANYROAD TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) VENDOR WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ANYROAD ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) VENDOR WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Scope This Agreement shall apply to Vendor’s use of the Services ordered by Vendor under an order form specifying the Services to be provided hereunder (“Order”). This Agreement, including all Orders, represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-AnyRoad ordering document, and no terms included in any such purchase order or other non-AnyRoad ordering document shall apply to the Services. In the event of a conflict between this Agreement and an Order, the terms of the Order shall control.
Right to Use the Services During the Subscription Term set forth in an Order, AnyRoad grants to Vendor a nontransferable, nonexclusive, worldwide right to access and use the Services in order to solicit, obtain and analyze information from attendees for Vendor’s internal business purposes, subject to the terms of this Agreement.
Usage Restrictions and Representations Vendor shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to AnyRoad; (iv) remove any proprietary notices or labels from the Services or Software; or (v) otherwise use the Services or Software outside of the scope of the rights granted in Section 2. Vendor shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service or otherwise outside of the scope of the express rights granted herein. Vendor shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with AnyRoad’s provision of the Services. Vendor shall be responsible for maintaining the security of its equipment and account access passwords. Vendor represents and warrants that Vendor will use the Services only in compliance with applicable laws and regulations. Vendor shall be liable for all acts and omissions using its account. AnyRoad may immediately suspend Vendor’s password, account, and access to the Services if (i) Vendor fails to make payment due within 10 business days after AnyRoad has provided Vendor with notice of such failure; or (ii) Vendor violates Section 2, 3, or 9 of this Agreement. Any suspension by AnyRoad of the Services under the preceding sentence shall not relieve Vendor of its payment obligations under this Agreement. Certain “free” or “open source” based software (the “FOSS Software”) may be provided by AnyRoad hereunder, but is not considered part of the Software hereunder. A list of the FOSS Software will be provided to Vendor upon Vendor’s written request.
Ownership AnyRoad will retain ownership of all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Vendor or any other party relating to the Services or Software shall be owned by AnyRoad, and Vendor hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by AnyRoad. Vendor will retain ownership of any data, information or material originated by Vendor that Vendor submits or provides in the course of using the Services (“Vendor Data”). AnyRoad has no ownership rights in or to Vendor Data. Vendor shall be solely responsible for the accuracy, quality, content and legality of Vendor Data, the means by which Vendor Data is acquired and the transfer of Vendor Data outside of the Services. Except to the extent Vendor makes any Vendor Data accessible to other users or the public through the Services, Vendor Data shall be deemed to be Vendor Confidential Information pursuant to Section 9 below. Vendor represents and warrants that it has all rights necessary to upload the Vendor Data to the Services and to otherwise have such Vendor Data used or shared, as applicable, by AnyRoad as part of the Services. AnyRoad will retain ownership of any questions or other information provided to an attendee by AnyRoad in relation to the Services. Vendor will retain ownership of any comments, ideas, feedback or other information provided by an attendee to AnyRoad in relation to the Offerings (“Attendee Feedback”), provided that Vendor will not disclose any such Attendee Feedback in a way that can be attributed to a specific attendee without such attendee’s prior written consent. Vendor hereby grants AnyRoad a nontransferable, perpetual, nonexclusive, worldwide license to use Attendee Feedback, Vendor Data and any other statistics or metrics relating to the usage of the Services in order to develop, provide and operate its Services and other offerings, and disclose such information (excluding Vendor’s Confidential Information, as defined below) solely on an aggregated and anonymized basis in a manner that does not identify Vendor or any attendee.
Billing and Payment AnyRoad collects a service fee for the Offerings directly from the attendee of such Offering and will remit the remaining amounts paid by the attendee to Vendor set forth in an Order (“Attendee Fees”). Vendor may elect whether to pass along the specified fees to the attendee or deduct the specified fees from Vendor’s normal ticket price. Vendor shall pay all other fees to AnyRoad set forth in an Order (“AnyRoad Fees”). All AnyRoad Fees are non-cancelable and nonrefundable, except as expressly specified in Section 7.2. All AnyRoad Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Vendor shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on AnyRoad’s income), even if such amounts are not listed on an Order. Vendor and AnyRoad shall pay all AnyRoad Fees and Attendee Fees, respectively, in U.S. Dollars or in such other currency as agreed to in writing by the parties. All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. Term and Termination. This Agreement shall commence as of the date set forth in the first Order, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order. The Subscription Term will automatically renew for additional successive periods of time equal to the length of the original Subscription Term, unless either party provides written notice of non-renewal at least 30 days prior to the end of the then-current term. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions, confidentiality obligations, warranty disclaimers, and limitations of liability. In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If AnyRoad terminates an Order for Vendor’s material breach, all fees set forth on such Order are immediately due and payable. Upon any termination or expiration of an Order, Vendor’s right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Vendor’s request if received within 30 days of termination of the Order, AnyRoad will permit Vendor to access the Services solely to the extent necessary for Vendor to retrieve a file of Vendor Data and Attendee Feedback then in AnyRoad’s possession. Vendor acknowledges and agrees that AnyRoad has no obligation to retain Vendor Data or Attendee Feedback and that AnyRoad will have the right to irretrievably delete and destroy Vendor Data and Attendee Feedback after 30 days following the termination of this Agreement.
Disclaimer of Warranties AnyRoad AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. ANYROAD AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS VENDOR MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AnyRoad AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET VENDOR’S REQUIREMENTS. VENDOR ACKNOWLEDGES THAT NEITHER AnyRoad NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AnyRoad IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY AnyRoad, THE SERVICES ARE PROVIDED TO VENDOR ON AN “AS IS” BASIS. VENDOR ACKNOWLEDGES THAT ANYROAD HAS NO CONTROL OVER AND DOES NOT GUARANTEE (A) THE QUALITY, SAFETY OR LEGALITY OF THE OFFERINGS, (B) AN ATTENDEE’S ACTIONS RELATED TO SUCH OFFERINGS, OR (C) THE TRUTH OR ACCURACY OF ANY OFFERINGS, AND ANYROAD IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES OR ATTENDEES THAT USES THE SERVICES, AND ANYROAD HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTIES OR ATTENDEES. ANYROAD IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ATTENDEES, INQUIRE INTO THE BACKGROUND OF ATTENDEES OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY ATTENDEES.
Limitation of Liability, Release ANYROAD SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF VENDOR’S LIABILITY, PAID AND/OR PAYABLE) BY VENDOR IN THE PRECEDING 3 MONTHS. AnyRoad provides a medium in which Vendors and its attendees can transact. However, AnyRoad could not function if it were held responsible for the actions or inactions of its attendees, Vendors and/or third parties both on and off the Services. Therefore, as an inducement to AnyRoad permitting Vendor to access and use the Services, Vendor hereby agrees to release AnyRoad, and its affiliates and subsidiaries from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses arising out of or in any way connected with disputes between Vendor and third parties in connection with any Offerings. In addition, Vendor waives any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY.”
Confidential Information Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except to perform its obligations hereunder or as permitted in Section 4.3 above) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after 5 years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. If the Receiving Party is required by law to make any disclosure of such Confidential Information, it may do so to the extent of such requirement, provided that it first gives written notice to the Disclosing Party thereof (if legally permitted).
Notices AnyRoad may give notice applicable to AnyRoad’s general Services Vendor base by means of a general notice on the Services portal, and notices specific to Vendor by electronic mail to Vendor’s e-mail address on record in AnyRoad’s account information or by written communication sent by first class mail or pre-paid post to Vendor’s address on record in AnyRoad’s account information. If Vendor has a dispute with AnyRoad, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Vendor shall promptly send written notice to AnyRoad at 2017 Mission St., San Francisco, CA 94110.
Publicity Vendor agrees that AnyRoad may use Vendor’s name and logo in AnyRoad’s marketing materials or communications Subject to the terms and conditions of this Agreement, Vendor hereby grants to AnyRoad a non-exclusive and limited license to use and publicly display Vendor’s name and logo as set forth in this Section 11.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS VENDOR’S RIGHTS.
- Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” Vendor agrees that any and all disputes or claims that have arisen or may arise between Vendor and AnyRoad, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between the parties, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Vendor may assert individual claims in small claims court, if Vendor’s claims qualify. Further, this Arbitration Agreement does not preclude Vendor from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against AnyRoad on Vendor’s behalf. Vendor agrees that, by entering into this Terms of Service, Vendor and AnyRoad are each waiving the right to a trial by jury or to participate in a class action. Vendor’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
VENDOR AND ANYROAD AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH VENDOR AND ANYROAD AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
- Pre-Arbitration Dispute Resolution
AnyRoad is always interested in resolving disputes amicably and efficiently, and most Vendor concerns can be resolved quickly and to the Vendor’s satisfaction by emailing Vendor support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to AnyRoad should be sent to [2017 Mission St., San Francisco, CA 94103] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If AnyRoad and Vendor do not resolve the claim within sixty (60) calendar days after the Notice is received, Vendor or AnyRoad may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by AnyRoad or Vendor shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Vendor or AnyRoad is entitled.
- Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless AnyRoad and Vendor agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, AnyRoad agrees that Vendor may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, AnyRoad will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that Vendor should not be required to pay your portion of the Arbitration Fees, AnyRoad will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, AnyRoad will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, AnyRoad agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending AnyRoad written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).