This Master Subscription Agreement (“Agreement”) is made by AnyRoad Inc., a Delaware corporation with a place of business at 505 Howard St, 4th Floor, San Francisco, CA 94105 (“AnyRoad”), and the contracting party (“Customer”) identified in the applicable Order Form.
Each Order Form is governed by and incorporates the following documents in effect as of the effective date of the applicable Order Form, collectively referred to as the “Agreement”, that consists of:
WHEREAS, AnyRoad offers an experience relationship management solution that leverages AnyRoad’s attendee engagement platform and tools; and
WHEREAS, Customer wishes to subscribe to, and AnyRoad wishes to offer to Customer, such Services to promote Customer’s events, tours, and other offerings (“Offerings”) under the terms and conditions of this Agreement.
In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
This Agreement shall apply to Customer’s use of the Services (as defined below) ordered by Customer under an Order Form specifying the Services to be provided hereunder (“Order” or “Order Form”). This Agreement, including all Orders, represents 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 documents shall apply to the Services. In the event of a conflict between this Agreement and an Order, the terms of the Order shall control.
2. Right to Use the Services
AnyRoad will provide Customer with the online software-as-a-service products and services on a subscription basis for the Subscription Term (defined below), and such other products and services, as set forth on an applicable Order (collectively, the “Services”). During the Subscription Term set forth in an Order, AnyRoad grants to Customer a nontransferable, nonexclusive, worldwide right to access and use the Services in order to solicit, obtain and analyze information from attendees for Customer’s internal business purposes, subject to the terms of this Agreement.
3. Usage Restrictions and Representations
3.1 Customer 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, including modifying or removing any elements or code contained in the version of the Software provided to Customer by AnyRoad without AnyRoad’s express consent; 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. Customer 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.
3.2 Customer 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. Customer shall be responsible for maintaining the security of its equipment and account access passwords. Customer represents and warrants that Customer will use the Services only in compliance with applicable laws and regulations. Customer shall be liable for all acts and omissions using its account.
3.3 Services if (i) Customer fails to make a payment due within 10 business days after AnyRoad has provided Customer with notice of such failure; or (ii) Customer violates Section 2, 3, or 9 of this Agreement. Any suspension by AnyRoad of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
3.4 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 Customer upon Customer’s written request.
4.1 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 Customer or any other party relating to the Services or Software shall be owned by AnyRoad, and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by AnyRoad.
4.2 Customer will retain ownership of any data, information or material originated by Customer that Customer submits or provides in the course of using the Services (“Customer Data”). AnyRoad has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content, and legality of Customer Data, the means by which Customer Data is acquired, and the transfer of Customer Data outside of the Services. Except to the extent Customer makes any Customer Data accessible to other users or the public through the Services, Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below. Customer represents and warrants that (a) it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used or shared, as applicable, by AnyRoad as part of the Services and (b) and (b) for any Customer Data provided to AnyRoad for email marketing shall consist of records of persons who have given Affirmative Consent (as defined in the CAN-SPAM Act and applicable state law) to receive third-party commercial email advertising messages regarding Offerings and have not subsequently sent an unsubscribe request revoking this Affirmative Consent. Customer will promptly notify AnyRoad of any opt-out and unsubscribe requests in a timely fashion.[ Customer will maintain records, and will supply such records to AnyRoad, evidencing (y) any and all opt-out and unsubscribe requests, and (z) the Affirmative Consent including, without limitation, the language used to obtain the Affirmative Consent to receive email, applicable IP address(es), and time and date stamps of the Affirmative Consent.
4.3 AnyRoad will retain ownership of any questions or other information provided to an attendee by AnyRoad in relation to the Services. Customer 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 Customer 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. Customer hereby grants AnyRoad a nontransferable, perpetual, nonexclusive, worldwide license to use Attendee Feedback, Customer Data and any other information, insight, statistics or metrics relating to the usage of the Services (collectively, the “Usage Data”) in order to develop, provide and operate its Services and other offerings, and disclose such information (excluding Customer’s Confidential Information, as defined below) solely on an aggregated and anonymized basis in a manner that does not identify Customer, Customer’s Confidential Information or any individual attendee.
5. Billing and Payment
5.1 Customer shall pay all fees to AnyRoad set forth in an Order (“AnyRoad Fees”) and unless otherwise specified in such Order, all AnyRoad Fees shall be due within 30 days of date of invoice. All AnyRoad Fees are non-cancelable and non-refundable, except as expressly specified in Section 7.2. Unless otherwise stated in the Order, all AnyRoad Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer 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. Unless otherwise provided in an Order, all AnyRoad Fees and Attendee Payments are in U.S. Dollars and Customer and AnyRoad shall pay all AnyRoad Fees and Attendee Payments, respectively, in U.S. Dollars or in such other currency as agreed to in writing by the parties.
5.2 AnyRoad also collects a transaction fee for the Offerings directly from the attendee of such Offering (“Transaction Fee”) and will remit the remaining amounts paid by the attendee to Customer as set forth in an Order (“Attendee Payment”). Attendee Payments shall be remitted by AnyRoad to Customer on a monthly basis (for any Offering completed during such month). Customer may elect whether to pass along the Transaction Fee to the attendee or deduct the Transaction Fee from Customer’s listed Offering price, as specified in an Order. After an Offering is completed, to the extent a refund is requested by an attendee and approved by Customer, the full amount paid by the attendee shall be refunded to such attendee and such amount shall be deducted from the aggregate Attendee Payments to be made in the following month. Further, it is agreed that the Attendee Payment will be paid to Customer and Customer shall be responsible for payments to any third parties involved in hosting or providing the Offering.
5.3 All amounts invoiced hereunder are due and payable within 30 days of the invoice date unless otherwise specified in the Order. Unpaid invoices 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.
5.4 If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, AnyRoad reserves the right to suspend Customer’s access to the applicable Services without liability to Customer until such amounts are paid in full.
6. Term and Termination
6.1 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 until the parties mutually agree in writing to terminate this Agreement at any time after the end of all the Orders entered into under this Agreement. Unless otherwise terminated as set forth below, each Order will have a term as set forth therein (the “Initial Term”). Thereafter, each Order will automatically renew for successive renewal terms of equal length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term. If no term is stated on an Orders, the Subscription Term for such Order is one (1) year. Except as otherwise provided in the applicable Order, Fees for any renewal Subscription Term shall be subject to an increase (a) equal to the percent increase in the Index (CPI) for the most recent twelve (12) month reporting period, OR (b) to a three percent (3%) increase above the applicable pricing in the prior Subscription Term, whichever is greater. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.2 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 Customer’s material breach, all fees set forth on such Order are immediately due and payable.
6.3 Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer’s request if received within 30 days of termination of the Order, AnyRoad will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data and Attendee Feedback then in AnyRoad’s possession. Customer acknowledges and agrees that AnyRoad has no obligation to retain Customer Data or Attendee Feedback and that AnyRoad will have the right to irretrievably delete and destroy Customer Data and Attendee Feedback after 30 days following the termination of this Agreement.
7. Representations, Indemnities, Disclaimer of Warranties
7.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. AnyRoad warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use, and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify AnyRoad of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. AnyRoad does not warrant that the Services will be compatible with your mobile device or carrier. Customer’s use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier.
7.2 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If AnyRoad cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the subscription fees paid to AnyRoad for such deficient Services, and such refund shall be AnyRoad’s entire liability.
7.3 Customer shall indemnify AnyRoad for, and defend at its expense against, any and all claims, actions, liabilities, losses, damage, and expenses (collectively, “Claims”) brought against AnyRoad or its officers, directors, and agents (each of which shall be considered a third-party beneficiary under this section) (a) alleging that Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation and (b) arising from or relating to the Offerings offered or provided by Customer through the Services or otherwise relating to Customer’s relationship with its attendees, including, without limitation, Claims relating to the accuracy of information regarding the Offerings such as available times, pricing and the like, the proper fulfillment of such Offerings, and the full satisfaction of its attendees. Customer shall pay all costs and damages finally awarded against AnyRoad by a court of competent jurisdiction or other governmental entity as a result of any such Claim; provided that AnyRoad (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases AnyRoad of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
7.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, 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 CUSTOMER 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 CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER ANYROAD NOR ITS THIRD-PARTY PROVIDERS CONTROL 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 CUSTOMER ON AN “AS IS” BASIS.
CUSTOMER 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.
8. Limitation of Liability, Release
8.1 EXCEPT FOR LIABILITY ARISING FROM SECTION 7.3 AND ANY BREACHES OF SECTION 9, NEITHER PARTY SHALL 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 CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 3 MONTHS.
8.2 AnyRoad provides a medium in which Customers and their attendees can transact. However, AnyRoad could not function if it were held responsible for the actions or inactions of its attendees, Customers, and/or third parties both on and off the Services. Therefore, as an inducement to AnyRoad permitting Customer to access and use the Services, in providing the Offerings, Customer 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 Customer and third parties in connection with any Offerings. In addition, Customer 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.”
9. 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).
AnyRoad may give notice applicable to AnyRoad’s general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer’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 Customer’s address on record in AnyRoad’s account information. If Customer has a dispute with AnyRoad, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to AnyRoad at 505 Howard St, 4th Floor, San Francisco, CA 94105.
11. Privacy & Data Protection
The provision of Services may require AnyRoad to process personal data on behalf of the Customer. In respect of such processing, the parties agree to enter and be bound by the terms of the Data Processing Addendum (the “DPA”) between the parties.
12. Service Level Agreement
AnyRoad will make commercially reasonable efforts to provide the Services in accordance with the availability and other terms set forth in the Service Level Agreement between the parties (the “SLA”).
Customer agrees that AnyRoad may use Customer’s name and logo in AnyRoad’s marketing materials or communications Subject to the terms and conditions of this Agreement, Customer hereby grants to AnyRoad a non-exclusive and limited license to use and publicly display Customer’s name and logo as set forth in this Section 13.
14. General provisions
14.1 Any action, Claim, or dispute related to this Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. Customer agrees and hereby submits to the exclusive personal jurisdiction and venue of the Superior Court of San Francisco County in California and the United States District Court for the Northern District of California, with respect to such matters. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
14.2 This Agreement (including all Order Form(s)) represents the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting, or additional communications. Customer acknowledges that this Agreement is a contract between Customer and AnyRoad, even though it may be electronic and not physically signed by Customer and AnyRoad, and it governs Customer’s use of the Service and takes the place of any prior agreements between Customer and AnyRoad. This Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgment or confirmation, or other document issued by Customer, which will have no effect, even if AnyRoad accepts or does not otherwise reject the purchase order, or any other ordering document issued by Customer. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.3 No joint venture, partnership, employment, or agency relationship exists between AnyRoad and Customer as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning party related to this Agreement. Any purported assignment in violation of this Section shall be void.
14.5 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.