This document is a “Product Attachment” as defined in the General Terms entered into by Client and Active and is subject to and incorporates by reference the provisions of the General Terms. This Product Attachment is effective as of the date it is “accepted” (in accordance with the Preamble to the General Terms). Any capitalized terms not defined herein have the meaning ascribed to them in the General Terms.
1. SERVICES. Active will provide Services related to events, camps, classes, transactions, sales, memberships, and/or activities (together, “Events”), including without limitation access to its SaaS. Client agrees to cooperate with Active and to provide Active with certain information relating to Client’s organization as necessary for Active to provide the Services and SaaS. SaaS provided hereunder are deemed delivered when access is made available to Client.
2. LICENSE TO INTELLECTUAL PROPERTY/PROMOTION.
2.1. Active hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during the Term of this Product Attachment (a) to use the SaaS for the purposes of offering, promoting, managing, tracking, and collecting fees in connection with Client’s Event(s) solely in accordance with the Agreement and the Schedule, which for purposes hereof will include the support and maintenance handbook applicable to the Products (available for review in the Client portal), as may be updated from time to time, and (b) to display, reproduce, distribute, and transmit in digital form Active’s name and logo solely for the purposes set forth in this Section 2. Client hereby grants to Active a limited license to use information provided by Client relating to Client’s organization and Event, which may include content regarding the Event, Client’s organization’s name, trademarks, service marks, and logo (collectively, the “Marks”), in connection with the promotion of Client’s organization or Events and the Services that Active provides.
2.2. Client will make reasonable efforts to promote and encourage the use and availability of the SaaS in connection with the promotion of Events. During the Term of this Product Attachment, Active will be the sole and exclusive provider of registration software and other services similar to the SaaS and Services provided to Client hereunder for all of Client’s Events for which registration begins during the Term of this Product Attachment until the Event occurs. For clarity, if an Event occurs after this Agreement is terminated, other than for Active’s uncured material breach, and registration for such Event begins during the Term of this Agreement, then Active SaaS shall be used under this Agreement, Product Attachment, and Schedule. Client expressly understands and agrees that the exclusivity set forth in this Section 2.2 is consideration in exchange for the pricing and other benefits being provided to Client hereunder. Without limiting the foregoing, Client will not enter into any agreement, arrangement, or relationship with any other party that offers online registration or transaction processing services similar to the SaaS provided to Client hereunder.
2.3. To the extent that Client acquires Events following the Effective Date that, when acquired, are using online registration or transaction processing services similar to the SaaS provided to Client hereunder, Client will cause such Events to immediately transition to the SaaS, and such Events will be subject to this Product Attachment; provided however, Client will be relieved of its foregoing transition obligations if an Event is subject to a contract with another service provider existing prior to the Event’s acquisition, in which case, such preexisting agreement may be observed but will not be renewed or extended by Client. If an acquired Event has an existing agreement with Active prior to its being acquired, Active will terminate such existing agreement, and such acquired Event will be added to and governed by this Product Attachment.
2.4. Client will promote SaaS and Services to licensees of Client (collectively, “Licensees”) and will cause each Licensee that holds events similar to Client’s Events to enter into an agreement with Active to use the SaaS; provided however, Client will be relieved of its foregoing transition obligations if the Licensee is subject to a contract with another service provider existing prior to the later of the Effective Date or Client entering into the licensing arrangement with such Licensee, in which case, such preexisting agreement may be observed by the applicable Licensee but Client will cause the Licensee to not renew or extend such pre-existing agreement and to enter into an agreement with Active. If a Licensee has an existing agreement with Active as of the Effective Date, Client will cause each such Licensee to amend its agreement with Active to include the rates set forth in the Schedule applicable to this Product Attachment. For purposes of this Product Attachment, Licensee shall mean any person, entity, or event accessing or utilizing the Products or Services licensed to Client under this Agreement for Events.
2.5. Active may present commerce offers to users who register for, sign up, or otherwise use the SaaS in connection with the Events (“End Users”). Any such End Users may opt in to receive information, items, or promotions/deals from Active or third parties, in which case, Active or such third party will be responsible for fulfillment and providing customer service for any such offers. Client will not present any competing offers to End Users.
3. INFORMATION COLLECTION.
3.1. Active collects certain information from End Users, individuals, and/or Licensees as part of the registration process for Events (collectively, “Participant Information”). Client may login to Active’s data management system to access the Participant Information. Client is responsible for the security of its login information and for the use or misuse of such information. Client will immediately disable a user’s access who is using the SaaS on its behalf or notify Active in writing if any such user is no longer authorized or is using such information without Client’s consent. Active may rely, without independent verification, on such notice, and Client, inclusive of Client’s parent, subsidiaries, affiliated entities, and Licensees, as applicable, and each of their respective officers, directors, managers, shareholders, owners, agents, employees, contractors, and representatives, to the extent not prohibited by law, covenant not to sue and agree to defend, indemnify, and hold harmless Active from any claims arising from Active providing, denying, suspending, or modifying access to or use of the SaaS and Services of any individual as directed by Client or by someone who Active reasonably, under the circumstances, believes is authorized to act on behalf of Client. In the event of any dispute between two or more parties as to account ownership, Client agrees that Active will be the sole arbiter of such dispute in its sole discretion and that Active’s decision (which may include termination or suspension of any account subject to dispute) will be final and binding on all parties. Client agrees not to use the SaaS to collect or elicit (a) any special categories of data (as defined in the General Data Protection Regulation, as may be amended from time to time), including, but not limited to, data revealing racial or ethnic origin, political opinions, religious or other beliefs, trade-union membership, as well as personal data concerning health or sexual life or criminal convictions other than as expressly directed by Active, and in such event, only in pre-defined fields within the SaaS that are intended for that purpose; or (b) credit card information other than in pre-defined fields within the SaaS that are intended for that purpose.
3.3. To the extent that Client requests that Active provide (a) Client with access to Participant Information relating to End Users, individuals, members or participants associated with Licensees and/or administrative access to Licensee’s account, or (b) another third party, such as an affiliated entity, Licensee, event timer, email marketer, donation service provider, etc. with access to Participant Information and/or administrative access to Client’s account, Client represents and warrants that (i) it has and will continue to hold all necessary licenses, permits, consents, permissions, and agreements necessary for Active to provide such access; (ii) Active’s provision of such access in compliance with this Product Attachment does not and will not violate any applicable laws, rules, or regulations; (iii) it will get affirmative written consent from each such Licensee and/or End User (as applicable) to provide Active with the rights to provide such access; (iv) it will use the Participant Information in compliance with this Section 3 as if the Participant Information was provided by the applicable End User or individual directly to Client; and (v) it will contractually require any such third party to comply with terms no less strict than those set forth in this Section 3; and (vi) it will be responsible and liable for the compliance of such third party with the terms and conditions of the Agreement.
3.4. Client acknowledges and agrees that Active and another entity from whom Client has received a license to hold its Event(s) (each, a “Licensor”) may have previously entered into an agreement pursuant to which Licensor requires access to Participant Information and administrative access to Client’s account with Active. Client hereby consents to Active providing each such Licensor with such Participant Information and access to Client’s account.
4.1. Client will pay the fees as more fully described in the applicable Schedule. Unless otherwise set forth in the applicable Schedule, Active will charge registration fees to individuals who register for the Events or purchase goods or services online, and will process and collect such fees as a payment facilitator according to the card networks. On a bi-weekly basis, unless otherwise set forth in the applicable Schedule, Active will pay Client sums due to Client based on the total fees collected, net of Active’s service fees as set forth in the applicable Schedule and any other deductions provided herein. The applicable currency will be set forth in the Schedule.
4.2. Any minimum volume commitment will be set forth in the applicable Schedule. The minimum volume calculation will begin on the date of the first live operational use of the SaaS for the Event(s) (“Go-Live Date”). If the Schedule indicates that Client is paying on a subscription basis, Client will be invoiced for the first month of subscription fees upon the Go-Live Date, with subsequent subscription fees being invoiced monthly.
4.3. If Client uses any daily deal program, group buying platform, or other similar service (each, a “Daily Deal Service”) to promote its Events or other products whereby End Users are able to register for an Event or purchase a good or service at a discounted price, notwithstanding the price paid by such End User, Client will be responsible for Active’s fees based on the full transaction amount as if the End User paid the applicable price that would have been charged without the Daily Deal Service.
4.4. If (a) Client fails to meet an agreed upon minimum volume commitment as set forth in a Schedule; (b) there are any overdue or overage amounts owed by Client; or (c) there are returned charges or items, including those resulting from any error or complaint related to an Event, Active has the right to charge fees owed to Active by Client by issuing an invoice, or by offsetting the deficiency from any account balance Client maintains with Active or any payment Active owes Client.
4.5. All fees described in the applicable Schedule are in consideration of the SaaS and Services that Active provides. Active and Client acknowledge that certain credit card network rules and laws prohibit imposing a surcharge that is based on the type of payment method used (e.g., having a different fee for the use of a credit card vs. debit card), and therefore, each agrees not to impose such a surcharge on any End User.
4.6. In the event Client is entering into this Product Attachment and using the Services and/or SaaS for the benefit of a third-party Event or organization (“Third Party Recipient”), Client agrees that Active can remit amounts directly to the Third Party Recipient identified by Client. In addition, Client will cause each Third Party Recipient to agree to and comply with provisions that are at least as protective of Active as Sections 3 and 4 of the General Terms in Client’s agreement with such Third Party Recipient. Should Client fail to obtain such agreement to such provisions and the failure results in costs or damages to Active, to the extent not prohibited by law, Client agrees to defend, indemnify, and hold Active harmless from any such costs and damages, including, without limitation, reasonable attorneys’ fees. In addition, Client is responsible and liable for each Third Party Recipient’s compliance with the terms and conditions of the Agreement.
4.7. It is Client’s responsibility to notify End Users of Client’s refund policy. Client must ensure that Client’s refund policies are consistent with the Agreement. Client agrees that all fees for a given Event are earned by Client only following either the conclusion or delivery of the applicable Event (as applicable) and all amounts ultimately due to Client will be net of all service fees, reversals, refunds, disputed charges, chargebacks and other deductions whether due to customer complaints, allegations of fraud, discrepancies related to the applicable Event or otherwise. No payments will be made to Client with respect to any Event that is cancelled. If payments have already been made by Active to Client for a cancelled Event or if Active reasonably determines that it is prudent or otherwise necessary to pay a refund to or honor a chargeback request from an End User, Active may issue an invoice or offset an equivalent amount from Client’s account or payment owed by Active to Client and return the value to the End User, and if sufficient funds are not available, Client must reimburse Active on demand. Active will notify Client of the reason for such offset provided that it is lawful to do so.
5. TERM AND TERMINATION.
5.1. Unless otherwise set forth in the applicable Schedule, this Product Attachment will commence on the Effective Date and will continue in effect until the earlier to occur of (i) its termination in accordance with the terms and conditions below and (ii) the third anniversary of the Effective Date (the “Initial Term”). This Product Attachment shall renew automatically following the Initial Term for subsequent renewal terms thereafter of three (3) years (the “Renewal Term(s)”, and, together with the Initial Term, the “Term”) unless either Party delivers written notice to the other Party at least 12 months prior to the expiration of the then-current Term of its intent to terminate this Product Attachment upon the completion of the Initial Term or any Renewal Term. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for additional Services and/or SaaS that are related to or interoperable with Services or SaaS set forth in a previously entered into Schedule, the Term of such subsequent Schedule will be concurrent and coterminous with the Term of the previously entered into Schedule.
5.2. If Client has entered into a sub-merchant agreement for payment processing services, and such agreement is terminated by the applicable acquiring bank, Active may terminate this Product Attachment and the effected Schedule.
6.1. Sections 5, 6, and 8 of this Product Attachment and any fees owed by Client will survive any termination or expiration of the Agreement.
6.2. The “Liquidated Damage Amount” equals the “Annual Projected Contract Value” (to the extent such amount is specified in the applicable Schedule(s)) times the number of years in the-then current Term, minus the amount of revenue already paid to Active during the then-current Term, net of all refunds, credit card chargebacks, and all other deducted amounts. Client agrees that (a) it will pay Liquidated Damages to Active if (i) Client breaches its exclusivity obligations under Section 2.2 of this Product Attachment; (ii) Active terminates a Schedule and/or the Agreement in accordance with Section 5.2 of the General Terms; (iii) Client fails to cause an assignment as specified in Section 6.2 of the General Terms; and/or (iv) Active terminates a Schedule and/or the Agreement pursuant to Section 6.3 of the General Terms; (b) all Liquidated Damage Amounts set forth in the Agreement will automatically reset during each Renewal Term; (c) Active may offset any Liquidated Damages Amount set forth in the Agreement from any account balance Client maintains with Active or any payment Active owes Client; (d) because of the difficulty in making a precise determination of actual damages incurred by Active, the Liquidated Damage Amount will be assessed, not as a penalty, but as a reasonable approximation of costs incurred by Active and Active’s loss of revenue; and (e) that in any suit or other action or proceeding involving the assessment or recovery of liquidated damages, the reasonableness of the Liquidated Damage Amount will be presumed and the liquidated damages assessed will be in addition to every other remedy now or hereinafter enforceable at law, in equity, by statute, or under the Agreement.