TERMS OF USE FOR THE CVENT LEAD SCORING SERVICE

Transcription

1 Last Updated: April 7, 2015 TERMS OF USE FOR THE CVENT LEAD SCORING SERVICE IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. The following document (these Terms of Use or Terms ) describes the terms under which Cvent, Inc. ("Cvent") offers each individual or entity (hereinafter, You or Supplier ) access to its Lead Scoring service ( Service ). You agree to comply with and to be bound by the Terms set out below. 1. Order Forms These Terms are incorporated by reference into each order form executed by the company or individual identified as the Supplier therein and Cvent, pursuant to which Cvent agrees to license and provide the Service to Supplier, as upgraded from time to time, during the Term and in exchange for the fees specified therein (the Order Form ). These Terms, the Order Form, and the Statement of Work ( SOW ) together comprise a binding written agreement between Supplier and Cvent, effective as of the date of mutual execution of the Order Form and SOW by Cvent and Supplier (this Agreement ). Cvent may amend these Terms at any time in its sole discretion, effective upon posting the amended Terms at the domain or subdomains of where the prior version of the Terms was posted, or by communicating these changes through any written contact method we have established with you. In the event of any conflict between the provisions contained in an Order Form or SOW and these Terms of Use, the provisions in the Order Form or SOW shall control (provided, however, that the fact that a provision appears in an Order Form or SOW but not these Terms of Use, or in these Terms of Use but not the applicable Order Form or SOW, shall not be deemed to be a conflict for purposes of this sentence). 2. Description of Services Cvent s Lead Scoring solution uses a proprietary algorithm to assign a rank to each RFP so that a Supplier can better evaluate RFPs and more effectively drive revenue for its organization. The Service is accessed through a Supplier dashboard and can be configured to import and aggregate multiple data feeds from a variety of sources, including Supplier s third party or proprietary customer record management system, as further detailed in the relevant Order Form and accompanying SOW. 3. License Grant Subject to these terms and conditions, and any additional terms contained in an Order Form, if any, Cvent will provide You with a non-exclusive, non-transferable license to access and use the Service, as upgraded from time to time. You may use the Service only for purposes of performing your internal business operations. You may not use the Service as part of a commercial time-sharing or service-bureau operation or in any other resale capacity. Except for the foregoing license, no other rights in the Service are granted to You hereunder, and the Service is and will remain the sole and exclusive property of Cvent and its licensors, if any, whether the Service is separate or integrated with any other products, services or deliverables. 4. Termination Either party may terminate an Order Form if (i) the other party breaches any material term or condition and fails to cure within thirty (30) days written notice, or (ii) the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership. If Supplier terminates an Order Form in accordance with this Section, Cvent will refund any prepaid fees covering the remainder of the Term of the Order Form as of the effective date of termination. Page 1 Cvent Lead Scoring Terms of Use

2 In the event of non-payment by the Supplier, or if Supplier breaches any other material term or condition of this Agreement, Cvent may accelerate and declare all sums due, and to become due under this Agreement, immediately payable without notice or demand. All accelerated future payments due under this Agreement shall be discounted to their net present value at a discount rate of 5% per annum from the day of default. If Supplier fails to pay fees when due, then Supplier shall also be liable for all fees due during the term of the Agreement and any additional expenses (including but not limited to reasonable attorneys' fees and accrued interest) Cvent incurs in collecting such delinquent fees. In the event of non-payment by the Supplier, Cvent reserves the right to restrict access to the Services. Supplier agrees that such restrictions do not modify the amounts due under this Agreement or any Order Form. 5. Responsibilities of the Parties Information and data provided by Supplier through the Service will only be used by Cvent as reasonably required for operating and providing the Service and in accordance with Cvent's Privacy Policy ( and all applicable data privacy laws and regulations (collectively, Data Privacy Policy and Rules ). You and Cvent agree to comply in all material respects with the Data Privacy Policy and Rules, and to provide such help and cooperation as is reasonably necessary or requested to the other to comply with the same. You acknowledge and agree that if You send or otherwise provide information (including but not limited to RFP data) to others using the Supplier Network, the recipients of such information may copy or redistribute such information, for instance by using standard interfaces to transfer data into external systems, by exporting data electronically into files or reports, by printing or other means. Supplier agrees (i) to abide by all applicable local, state, national, and international laws and regulations; (ii) not to use the Service for illegal purposes; (iii) not to impersonate any person or entity or engage in any fraudulent business practice, including generating invalid impressions, clicks, or other actions; (iv) not to display or transmit any unlawful, harmful, hateful, racially, ethnically or objectionable material of any kind; (v) not to distribute in any way files that contain viruses, corrupted files, or any other similar programs; and (vi) not to interfere or disrupt the functionality of the Service. Cvent will assign You one or more login IDs and passwords that will enable You to access the Service. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords, and You are solely Supplier shall not attempt to reverse engineer, disassemble or decompile the Service or cause or permit the reverse engineering, disassembly or de-compilation of the Service. If You do so, then You agree that Cvent is suffering irreparable injury and You agree to pay all reasonable attorney's fees and costs incurred in enforcing these provisions. Cvent may, at its sole discretion, immediately terminate access to the Service should any Supplier's conduct fail to conform to any of these Terms. 6. Ownership and Use of Data Supplier grants Cvent a limited, non-exclusive right to access Supplier s systems, to use the Supplier Data (including copyright, trademark, patent, publicity or other rights) in order for Cvent to provide the Services. Supplier retains any and all rights it may possess to Supplier Data provided by Supplier to Cvent through the Cvent System or collected from others by Cvent on behalf of Supplier. Such Supplier Data will only be used by Cvent as reasonably required for providing Services as contemplated hereunder and in accordance with Cvent's Privacy Policy ( and all applicable data privacy laws and regulations laws (collectively, Data Privacy Policy and Rules ). Both Cvent and Supplier will comply in all material respects with the Data Privacy Policy and Rules, and will provide such help and cooperation as is reasonably necessary or requested to the other to comply with the same. Unless we have Supplier s permission, Cvent will not disclose or share personally identifiable information collected on the Site with any third party (except as required by law, pursuant to a governmental request, or for the purposes of providing Supplier the Services). Cvent may retain offline copies of Supplier data on backup media for archival purposes for a reasonable period of time following expiration or termination of any SOW. Notwithstanding anything to the contrary in this Agreement, including any SOW or Order Form, Supplier hereby acknowledges and agrees that Cvent may use all Supplier Data, including that which is specific to Supplier, for the purpose of creating aggregated and/or anonymized statistics (the "Aggregate Data"). Aggregate Data shall not identify Page 2 Cvent Lead Scoring Terms of Use

3 Supplier as the source of any specific piece of data, and shall not include any personally identifiable information or data specific to any individual identified in the Supplier Data. Supplier acknowledges that Cvent or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Services, and any or all modifications to the Services, related documentation and marketing materials regardless of (i) whether such intellectual property notices appear on the materials or (ii) whether such intellectual property notices have been filed with governmental agencies. Nothing in this Agreement will directly or indirectly be construed to assign or grant Supplier any right of ownership, title or interest in the Services, or any intellectual property rights relating thereto. Supplier agrees not to disclose to anyone any proprietary or confidential information of Cvent which Supplier may receive through the Services or which Supplier may have access to on the Site, and that Supplier will not use any such information to compete against Cvent or reverse engineer our service offerings. No competitors or future competitors are permitted access to the Site or Services, and any such access by third parties is unauthorized. Supplier agrees that it will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any information on our Site or which Supplier receives through the Services. In addition, Supplier agrees to pay all reasonable attorney's fees and costs incurred in enforcing these provisions. 7. Third Party Service Interoperability The Services provided hereunder may contain features designed to interoperate with third party services and/or applications. To use such features, Customer may be required to obtain access to such services and/or applications from third party providers, and may be required to grant Cvent access to such third party provider account(s). If such third party provider ceases to make service or application available for interoperation with the corresponding Cvent Service features on reasonable terms, Cvent may cease providing those Service features without entitling Customer to any refund, credit, or other compensation. If Customer installs or enables a third party service or application for use with the Cvent Service, Customer grants Cvent permission to allow the third party provider to access Customer s Data as required for the interoperation of that third party service or application with the Service provided hereunder. Cvent is not responsible for any disclosure, modification or deletion of the Customer Data resulting from access by the third party service provider or use of the third party service or application. 8. Prohibited Use Supplier will not use the Services (i) in any manner which exceeds the scope of its license under Section 3 (License Grant) of this Agreement; (ii) in any manner which violates Supplier s obligations under Section 5 (Responsibilities of Parties) of this Agreement; (iii) to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses (iv) to interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; or (v) for illegal activities (all the foregoing Prohibited Uses ). Cvent may immediately suspend or terminate your access to the Services in the event of any Prohibited Uses by Customer. 9. Confidentiality Each party receiving Confidential Information hereunder ( Recipient ) agrees that (a) it will treat all Confidential Information of the other party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and (b) it will not use, disseminate, or in any way disclose to third parties any Confidential Information of the disclosing party ( Discloser ), except for the provision of the Services to the extent necessary to provide the Services under these Terms, and for any other purpose Discloser may hereafter authorize. For purposes of these Terms, Confidential Information means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any Supplier Data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. The terms and conditions of any order for Cvent products or services shall be deemed Confidential Information of both Cvent and the Supplier. Page 3 Cvent Lead Scoring Terms of Use

4 Recipient will have no obligation with respect to any portion of the Confidential Information which (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure; (d) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or (e) is disclosed with the prior written consent of Discloser. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest (at Discloser s sole expense) such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law. The parties agree that these confidentiality terms replace and supersede any separate non-disclosure agreement of other confidentiality provisions to which the parties may have agreed prior or contemporaneous to agreeing to these Term of Use. 10. Representations, Warranties, Exclusive Remedies, and Disclaimers Each party represents that it has validly entered into this Agreement and has the legal power to do so. Cvent warrants that (a) the Services materially conform to the specifications set forth in the SOW, and in accordance with any marketing, advertising and promotional materials provided to Customer, and (b) the Services will not introduce code, files, scripts, agents or programs into Supplier s systems which are intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. For any material breach of a foregoing warranty, Supplier s exclusive remedies are those set forth in Section 2.3 (Termination). EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, AND CVENT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE. CVENT DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR- FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 11. Indemnification Cvent shall defend Supplier against any claim or lawsuit by a third party (a Claim ) against Supplier to the extent such Claim alleges that the Service, used in accordance with the terms of this Agreement, infringe any patent, copyright or trademark, or misappropriates a trade secret of a third party, and will indemnify Supplier for all damages finally awarded against Supplier by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Cvent, arising out of such Claim. If Supplier s use of the Service under the terms of this Agreement is enjoined or Cvent determines that such use may be enjoined, then Cvent may, at its sole option and expense, either (i) procure for Supplier a license to continue using the Service in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing Services to avoid the infringement; or (iii) terminate the licenses and access to the corresponding Services and refund any prepaid unused fees as of the date of termination. Notwithstanding the indemnity obligations specified under this paragraph or anything to the contrary under this Agreement, Cvent shall have no defense or indemnification obligation or other liability for any Claim arising from (i) use of the Services other than in accordance with this Agreement; (ii) modification of the Services by Supplier or a third party; (iii) the combination of the Services with any materials contributed by Supplier or any third parties if the Services would not directly infringe without such combination; (iv) any third party products, services, hardware, software or other materials; or (v) any obligation of Supplier to defend or indemnify Cvent. 12. Limitation of Liability Cvent s liability to Supplier, Supplier s affiliates, registered agents, assignees, registrants or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorneys fees or costs arising under this Agreement including any Order Form(s) shall be limited to the amount of Supplier s actual direct damages, not to Page 4 Cvent Lead Scoring Terms of Use

5 exceed (in the aggregate for all claims) the total annual amount paid under the Agreement during its then-current Contract Year at the time of the incident giving rise to liability. If no fee is paid to Cvent, Cvent does not retain any liability. IN NO EVENT WILL CVENT OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICES OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT BE LIABLE OR INDEMNIFY SUPPLIER FOR: (i) ANY DAMAGES CAUSED BY SUPPLIER S FAILURE OR THAT OF ITS CLIENTS, INVITEES, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS TO PERFORM THEIR RESPONSIBILITIES; (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR (iii) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COST OF COVER, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICE PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF CVENT OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement. 13. Sensitive Personal Information Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges and agrees that use of the Cvent Services to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Services and therefore Customer shall be solely responsible for any such use of the Services by Customer or its employees, agents or subcontractors and Cvent shall bear no risk or liability for same. Sensitive Personal Information shall be defined as (a) social security numbers; (b) passport numbers or other government issued id numbers; (c)date of birth; (d)gender; (e) health or medical information ; (d) financial account information, including payment card information; and (e) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, address, and phone number). 14. Laws and Disputes All matters with respect to the Service, these Terms, any Order Form, and SOW(s) will be governed by the laws of the Commonwealth of Virginia, United States of America, without regard to any conflict of law principles, and the parties agree to the sole and exclusive venue of the state and federal courts encompassing Arlington, Virginia for all matters arising with respect to same. The parties waive their right to a jury trial. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply hereunder. 15. Notice Any notice hereunder shall be in writing and shall be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail; (ii) when delivered if delivered personally or sent by express courier service; (iii) when transmitted if sent by a confirmed facsimile; or (iv) when transmitted via , provided that the receiving party acknowledges receipt by return Non-solicitation Customer agrees that Customer, its organization and affiliates, will not attempt to hire, or assist in hiring anyone currently employed by Cvent, except insofar as such recruitment results from a general solicitation of employment not specifically directed towards employees or subcontractors of Cvent. Customer further agrees that should such a situation occur, Cvent would be caused irreparable harm and be entitled to injunctive relief. 17. Force Majeure Page 5 Cvent Lead Scoring Terms of Use

6 Cvent will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by Supplier, its employees, agents, or contractors. The parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of their respective obligations hereunder. Cvent is not liable for excusable delay. 18. No Third Party Beneficiaries These Terms are not intended to, and do not confer any rights, benefits or remedies upon any person other than the parties. 19. Export Compliance The Services and other technology Cvent makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. 20. Compliance with Anticorruption Laws You agree that neither you, nor any officer, director, employee, subsidiary, affiliate, agent, representative or other person working on your behalf in connection with your use of the Site or receipt of any Services, will violate any anti-corruption or anti-bribery laws, statutes and regulations of any country, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977, as amended (the FCPA ) and the UK Bribery Act You warrant that you will not engage in any bribery, extortion, kickbacks, or other unlawful or improper means of conducting business. You also warrant and covenant that you and your officers, directors, employees, agents and representatives have not violated, and will strictly comply with, the anticorruption or anti-bribery laws, statutes and regulations of any country which makes it unlawful to offer, pay, promise to pay, or authorize the payment of any money, or to offer, give, promise to give, or authorize the giving of anything of value, directly or indirectly, inter alia to a Covered Recipient (defined herein) for a Prohibited Purpose (defined herein). For purposes hereof, Covered Recipient means a foreign official (including employees of governmentowned or controlled entities), foreign political party (including any official thereof), official or employee of an international public organization, or candidate for foreign political office; and Prohibited Purpose means assisting a party to obtain or retain business for or with, to secure an improper advantage, or to direct business to, any person, by: a) influencing any act or decision of a Covered Recipient in such Covered Recipient s official capacity; b) inducing a Covered Recipient to do or omit to do any act in violation of such Covered Recipient s lawful duty; c) securing any improper advantage; or d) inducing a Covered Recipient to use such Covered Recipient s influence with a foreign government (or instrumentality thereof) to affect or influence any act or decision of such government (or instrumentality thereof), including entities that are government-owned or controlled. You further warrant that you will not engage in any commercial bribery, kickback schemes, or other forms of improper payments to any person, private or public, and agrees that you will not create or submit any false, inaccurate, or misleading invoices or other business documents related to any use of the Site or Services. You will permit, upon request, Cvent reasonable access to your books and records and/or to conduct periodic or ad hoc audits, as Cvent deems necessary. Upon request, you agree to provide Cvent with a written certification attesting your compliance with the foregoing anticorruption requirements. 21. Press Releases; Customer List You agree that Cvent may use Your organization s name and logo to identify You as a customer of Cvent on Cvent s website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as a part of a general list of Cvent s customers for use and reference in Cvent s corporate and marketing literature. Additionally, You Page 6 Cvent Lead Scoring Terms of Use

7 agree that Cvent may issue a press release identifying You as a Cvent customer, subject to Your prior approval which will not be unreasonably withheld or delayed. 22. Legal Fees Cvent shall be entitled to recover reasonable attorney s fees in the event Cvent is the prevailing party in any legal action to enforce or interpret this Agreement. 23. Entire Agreement; Severability; Waiver These Terms supersede any prior agreement or understanding between the parties whether oral or written in relation to its subject matter, and may only be modified by a written amendment signed by authorized representatives of each party, except solely in connection with additional purchases under an active Order Form, which may be transacted via . Any additional or conflicting terms contained in any Supplier purchase order, proposal or other document shall be deemed to be rejected by Cvent without need of further notice of objection, even if such document is acknowledged or accepted by Cvent, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Cvent. The provisions of these Terms shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Cvent s failure to exercise or enforce any right, power or remedy under these Terms shall not operate as a waiver thereof. Page 7 Cvent Lead Scoring Terms of Use