IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. The following document (these "Terms of Use") describes the terms under which Emma Live Ltd ("Emma") offers each individual or entity (hereinafter, "Customer") access to its Services through the SaaS Solution. Emma and the Customer are each a "Party" and are collectively the "Parties".
By accessing the SaaS Solution or any content found on the SaaS Solution, Customer agrees to comply with and to be bound by the Terms of Use, including the policies and guidelines linked to (by way of the provided URLs) from these Terms of Use. If Customer does not understand or agree with these Terms of Use, please do not use the SaaS Solution or the Services.
These Terms of Use are incorporated by reference into each Sign-Up Form executed by Customer and Emma). Emma may amend these Terms of Use at any time in its sole discretion, effective upon posting the amended Terms of Use at the domain or subdomains of https://www.emma-live.com where the prior version of the Terms of Use was posted, or by communicating these changes through any written contact method Emma has established with Customer.
DEFINITIONS:
"Agreement" means collectively these Terms of Use, Sign-Up Forms, and all other attachments and exhibits referenced hereto.
"Confidential Information" means any information, regardless of form, proprietary to or maintained in confidence by either Party, including, without limitation, any Customer 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 a 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 this Agreement and any order for Emma products or services will be deemed the Confidential Information of both Emma and Customer.
"Customer Data" means any materials, information, data, code, content, and other information that Customer, or its employees or agents, collect (or which Emma collects on behalf of Customer from event attendees or others) or transmit to Emma via a SaaS Solution, or via another medium for the purpose of display or transmission via the Services.
"Emma Content" means the information, documents, software, products and services contained or made available to Customer in the course of using a SaaS Solution.
"Developed Materials" is defined in Section 3.2.2.
"Documentation" means the user instructions, release notes and on-line help files regarding the use of a SaaS Solution in the form generally made available by Emma, as updated by Emma from time to time.
"Effective Date" means the date the applicable Sign-up Form is executed by both Parties.
"Sign-up Form" means a document, including the services included, executed by the Parties, which incorporates by reference the Terms of Use, and describes order-specific information, such as description of Service ordered and fees.
"Products" means collectively the SaaS Solutions and other software programs (including any associated materials or intellectual property, as well as any updates, improvements, modifications, or changes, and Documentation), Emma Content, Developed Materials and all toolkits and any other programs provided by Emma hereunder, training materials, tutorials and related documentation provided by Emma in connection with the performance of Services.
"Professional Services" means data conversion, data mapping, implementation, site planning, configuration, integration and deployment of the SaaS Solution, training, project management and other consulting services.
"Protected Information" means: (i) the racial or ethnic origin of the data subject; (ii) his/her political opinions; (iii) his/her religious beliefs or other beliefs of a similar nature; (iv) whether he/she is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992); (v) his/her physical or mental health or condition (except for food allergies or medical contact information); (vi) his/her sexual life; (vii) the commission or alleged commission by him/her of any offense; (viii) any proceedings for any offence committed or alleged to have been committed by him/her, the disposal of such proceedings or the sentence of any court in such proceedings; (ix) national, social security or taxpayer id number or other government issued id numbers, date of birth and/or gender (except if stored in encrypted fields provided by Emma for storage of such data); (x) financial account information (other than payment card information entered securely using Emma's online payments module); or (xi) other information that a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, title, company name, mailing address, email address, and phone number).
"SaaS Solution" means a software as a service and other software services identified in the Sign-up Form and associated Support.
"Services" means collectively SaaS Solutions and Professional Services.
"SOW" means one or more work orders, work authorizations or statements of work that describe the Professional Services for Customer and mutually executed by the Parties.
"Subscription Term" means the period during which Customer is authorized to use a SaaS Solution pursuant to an Sign-up Form.
"Support Services" is defined in Section 5.1.
"Users" means the number of people directed to the SAAS Solution by Customer.
"Viruses" shall mean any programs, subroutines, code, instructions, data or functions, (including but not limited to viruses, worms, date bombs, time bombs, shut-down devices, keys, authorization codes, or passwords allowing Emma access), the purpose of which is expressly intending to result in damaging, interrupting, interfering with or hindering the operation of any software or data on Customer's equipment configuration, or any other equipment or system with which the equipment configuration or SaaS Solutions are capable of communicating.
1. PURPOSE AND SCOPE:
1.1. Purpose: These Terms of Use establish the general terms and conditions for Emma's (on behalf of itself and its wholly-owned subsidiaries) provision of the Services to Customer and its affiliates identified on the applicable Sign-up Form. Additional terms for the subscription or use of a specific Service are in the applicable exhibits (each "Product Exhibit") available at https://www.emma-live.com/pricing.html. Each Product Exhibit is only applicable to the Service identified on that Product Exhibit.
1.2. Additional Services: During the Term, Customer may subscribe to or purchase additional Services or otherwise expand the scope of Services granted under a Sign-up Form, upon mutual agreement and execution of a new Services order specifying details the foregoing.
1.3. Order of Precedence: The terms and conditions of this Terms of Use control to the extent any terms and conditions of this Terms of Use conflict with the terms and conditions of a Sign-Up Form or any Product Exhibit, except where the Sign-Up Form or Product Exhibit specifically states the intent to supersede a specific portion of this Terms of Use.
2. FEES, TAXES & PAYMENTS:
2.1. General: Customer shall pay the fees specified in the applicable Sign-up within 30 days after the invoice date. Except as otherwise expressly specified, all payment obligations start from the execution of the Sign-up Form. All payments must be by cheque or bank transfer unless Emma agrees otherwise, and if Emma permits payment via credit or debit card, then unless prohibited by applicable laws, Emma reserves the right to charge Customer a surcharge of three percent (3%) of the total amount due hereunder, and Customer hereby consents to such charge being made against the credit or debit card provided by Customer.
2.2. Currency and Taxes: Fees are in the currency designated in the applicable Sign-up Form (if not specified then UK Sterling by default) and excludes all applicable taxes. Customer is responsible for payment of all applicable sales, use, value added or similar taxes (excluding those on Emma's net income) imposed by any government entity relating to the provision of the Services.
2.3. Disputed Fees: Customer may reasonably and in good faith dispute an invoiced amount within thirty (30) days after the invoice date, provided that Customer shall promptly pay the undisputed portion of the invoice pursuant to Section 2.1 and may only withhold payment of the disputed portion until the dispute is resolved. The Parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days.
2.4. Failure to Pay: Failure to make timely payments is a material breach of this Agreement and Emma may suspend its performance obligations in accordance with the provisions of Section 11.4. Customer shall reimburse Emma for expenses incurred, including interest and reasonable legal fees, in collecting amounts due under this Agreement that are not under good faith dispute by Customer. Amounts paid or payable for SaaS Solutions are not contingent upon the performance of any Professional Services. Customer agrees that its subscriptions hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Emma regarding future functionality or features.
2.5. Fee Adjustment: The recurring fees are fixed for the initial Subscription Term of the applicable Sign-up Form. Thereafter, Emma may increase these fees for future periods, provided that no annual increase will exceed by more than ten percent (10%) of the last year of the initial Subscription Term. Notwithstanding anything contained herein to the contrary, Professional Services fees and any introductory or discounted offers from Emma are not subject to this Section 2.5.
3. SERVICES:
3.1. SaaS Solutions:
3.1.1. Subscription Right: Subject to the provisions of this Agreement, Emma hereby grants Customer for the Subscription Term, a non-transferable, non-exclusive and revocable subscription right, without the right to grant sublicenses, to access and use the SaaS Solutions solely for the internal business purposes of Customer and solely in relation to the functionality advertised for the SaaS Solution by the Emma from time to time. Customer acknowledges that Emma has no delivery obligation and will not ship copies of the Products to Customer as part of the SaaS Solutions. Customer agrees that it does not acquire under the Agreement any license to use the Products in excess of the scope and/or duration of the SaaS Solutions. Except for the foregoing subscription right, no other rights in the Service are granted hereunder, and the Service is and will remain the sole and exclusive property of Emma and its licensors, if any, whether the Service is separate or integrated with any other products, services or deliverables.
3.1.2. Usage Restrictions: Customer's right to use SAAS Solution may be limited to 1,000 Users or terminated where Emma reasonably determines that the Customer's use of the SaaS Solution exceeds or breaches the scope of the license granted under clause 3.1.1. There will be no fee adjustments or refunds for any decrease in the Customer's usage of or termination of the Customer access to the SaaS Solution under this clause 3.1.2.
3.1.3. Changes and Environment: Access to a SaaS Solution is limited to the version in Emma's production environment, accessed via the Internet by use of a Emma-approved and Customer-provided browser. Emma regularly updates the SaaS Solutions and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. SaaS Solutions will be hosted on a server that is maintained by Emma or its designated third-party supplier or data centre. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the SaaS Solutions, including but not limited to Internet access and adequate bandwidth.
3.1.4. User IDs: Emma shall assign Customer one or more user IDs and passwords that will enable Customer to access a SaaS Solution. Customer shall take reasonable precautions to protect against theft, loss or fraudulent use of these IDs and passwords. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel of Customer.
3.2. Professional Services:
3.2.1. Scope: Emma may perform the Professional Services described in the applicable SOW. Either Party may propose a change order to add to, reduce or change the work ordered in the SOW. Each change order must specify the changes to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to Emma. A change order is not binding until executed by both Parties.
3.2.2. Developed Materials: If agreed in a SOW, Emma may develop modifications to Products or Emma Content ("Developed Materials"). Emma hereby grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions in this Agreement, a personal, nonexclusive, non-transferable license for the Subscription Term to use the Developed Materials solely in connection with its use of the SaaS Solutions. Unless specified in a SOW, Emma does not provide updates or reintegration work required to make Developed Materials compatible with future versions or releases of a SaaS Solution.
4. CUSTOMER'S USE:
4.1. Acceptable Use: Emma does not monitor or police the content of communications or Customer Data transmitted through the SaaS Solutions, and Emma is not responsible for the content of these communications or transmissions. Customer shall use a SaaS Solution exclusively for authorized and legal purposes, consistent with all applicable laws and regulations and Emma's Privacy Policy located athttps://www.emma-live.com/privacy.html (the "Privacy Policy").
4.2. Restrictions: Customer shall not: (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 12.5 (Assignment), distribute, disclose, or otherwise commercially exploit or make available to any third party the Products or Services; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Products or Services; (iii) "frame" or "mirror" the Products or Services on any other server or device; (iv) access the Products or Services for any benchmarking or competitive purposes or use the Services for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use; (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Products or Services; (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Product or Services; (vii) use the Product or Service to send or store infringing, obscene, threatening, or otherwise unlawful material, including material that violates third party privacy rights; (viii) use the Product or Service to create, use, send, store, or run material containing Viruses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Products or Services; (ix) attempt to gain or permit unauthorized access to the Products or Services or related systems or networks, including but not limited to conducting any penetration testing, denial of service attacks, or similar efforts; (x) use the Products or Services other than in compliance with all applicable laws and regulations; (xi) permit access to Products or Services to any competitors, and any such access by third parties is unauthorized; or (xii) permit or assist any other party (including any user) to do any of the foregoing.
4.3. Breach by Authorized User: Any failure by an authorized user to comply with this Agreement is deemed to be a breach by Customer, and Emma shall not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer shall immediately take all necessary steps, including providing notice to Emma, to effect the termination of an access ID for any authorized user if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
4.4. Server Location: Customer acknowledges that Emma has servers located in the United Kingdom only and that the SaaS Solutions are not intended to be used by Customer or third parties in any country which requires an individual's personal data to remain on servers located in that country.
4.5. No Protected Information: Customer acknowledges and agrees that use of the Services does not require Customer to provide any Protected Information to or through the SaaS Solutions and Emma shall have no liability to Customer or its representatives, users or any other party related to any Protected Information. Customer shall not (and shall ensure that its representatives and users do not) upload, provide or submit any Protected Information to the SaaS Solutions. Emma may upon notice suspend all or portion of Customer's or its users' access to the SaaS Solutions if Emma has a good faith belief that Customer or its users has breached the restrictions in this Section.
4.6. Third Party Content: Third party data, content, materials or software ("Third Party Content") published on the Emma website or otherwise made available through a SaaS Solution may be subject to third party licenses, and these licenses may be altered or revoked at any time by the applicable third party licensor, and that, provided there is no material reduction of functionality in the Emma System, removal or alteration of Third Party Content shall not constitute a material breach of this Agreement or any Sign-Up Form.
4.7. No Spamming or Unsolicited Commercial Email: Customer will not use the Services for illegal activities or junk mail, chain letters, pyramid schemes, phishing, "spam" or other unsolicited emails to any person who has not given specific permission to be included in such a process. Without limiting the generality of the foregoing, Customer is required to comply with all applicable anti-spam laws including but not limited to Privacy and Electronic Communications Directive 2002, and the rules and regulations promulgated thereunder.
5. SUPPORT:
5.1. Obligations: Support services provided by Emma as part of a SaaS Solution include technical support and workarounds so that the SaaS Solutions: (i) operate in material conformance with the Documentation (where applicable to the Products), and (ii) the provision of updates thereto, if and when available (collectively, "Support Services"). For the avoidance of doubt, updates to the SaaS Solutions may include subsequent releases to Products, excluding Developed Materials, and may include bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules or functionality for which Emma generally charges a separate fee.
5.2. Exceptions to Support: Emma does not provide Support Services with respect to: (i) a SaaS Solution that have been altered or modified by anyone other than Emma or its licensors; (ii) a SaaS Solution used other than in accordance with the Documentation; (iii) Professional Services: (iv) Developed Materials: (v) errors or malfunction caused by Customer's failure to comply with the minimum system requirement documentation as provided by Emma or by Customer's use of non-conforming data: or (vi) errors and malfunction caused by any systems or programs not supplied by Emma.
5.3. Communications: By executing the Agreement, the Customer may choose to opt-in, on behalf of its signatory herein and each of its personnel who is assigned a user ID for access to the SaaS Solution, to receiving email communications from Emma regarding Emma products and services, including but not limited to Emma white papers, webcasts, videos, live events, and other marketing and information materials. The Customer understands that its signatory and personnel may subscribe or unsubscribe such consent at any time through the links provided therein.
6. SECURITY STANDARDS AND SAFEGUARDS:
6.1. Payment Cards: Emma shall maintain safeguards against the destruction, loss or alteration of payment card information that is in the possession of Emma and stored in a Emma platform by implementing the applicable information security controls as set out in the then current version of the Payment Card Industry Data Security Standard ("PCI DSS"), or the immediately preceding version of PCI DSS to the extent still permitted by PCI authorities.
6.2.. Personal Data: Emma shall maintain commercial safeguards against the unauthorized destruction, disclosure or alteration of Customer personal data that is in the possession of Emma.
6.3. Data Protection Agreement: Customer and Emma shall comply with all applicable privacy laws and regulations and shall provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations. If a SaaS Solution involves the processing of personal data of data subjects (as defined by applicable data protection legislation) located within the European Economic Area or Switzerland on behalf of Customer, such processing shall be in accordance with Emma's Privacy Policy.
7. WARRANTIES AND DISCLAIMERS:
7.1. The parties acknowledge and agree that the sale of goods act of 1979 and the supply of goods and services act of 1982, as amended, do not apply to and are excluded under this agreement and that the services are provided "as is" without warranty of any kind, and Emma does not make any representation, warranty regarding the services, or guaranty, as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the services provided or offered hereunder. Any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement or any warranties arising from usage of trade, course of dealing, course of performance, or statutorily, are hereby disclaimed to the maximum extent permitted by applicable law.
7.2. Use of or connection to the internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the SaaS solutions and customer data. Accordingly, Emma cannot and does not guarantee the privacy, security or authenticity of any information transmitted over or stored in any system connected to the internet. In order to protect customer's data, Emma may suspend customer's use of the services immediately, without prior notice, pending an investigation, if any breach of security is suspected.
8. PROPRIETARY RIGHTS:
8.1. Emma's Intellectual Property Rights: As between Emma and Customer, all rights, title, and interest in and to all intellectual property rights in the Products, Services, and Developed Materials (including all components, derivatives, modifications and enhancements) are and will be owned exclusively by Emma notwithstanding any other provision in this Agreement or Sign-up Form. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Products, Services, or Developed Materials. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Products and Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Emma. Emma alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating thereto. Customer acknowledges and agrees any software and any Developed Materials Emma creates pursuant to this Agreement are not and will not be considered as "works made for hire" under the United States Copyright Act, Title 17, United States Code or "joint works of authorship," or any other designation under Copyright, Designs and Patents Act, 1988 or any other similar law, tending to imply that Customer has or retains ownership or authorship rights therein or thereto, but are provided to Customer in accordance with and subject to the terms and conditions of this Agreement. To the extent that any such rights vest initially with Customer by operation of law or for any other reason, Customer hereby perpetually and irrevocably assigns, transfers, and quitclaims all such rights to Emma. Subject to Emma's confidentiality obligations under the Agreement, nothing herein prevents or limits Emma's right to undertake engagements for any other entity, transfer or license the deliverables to other parties, or to reuse them in whole or in part in other projects, including a competitor of Customer, whether or not similar to the Developed Materials.
8.2. Customer Data: As between Customer and Emma, Customer owns all rights, title and interest in and to all Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data and warrants that that it has and will have all rights and consents necessary to allow Emma to use this data as contemplated by this Agreement. Customer hereby grants to Emma during the Subscription Term a royalty-free, fully-paid, non-exclusive, non-transferable (except as set forth in Section 12.6 (Assignment)), sub-licensable, worldwide right to use and process Customer Data solely for the purpose of providing to Customer the Products and Services and any other activities expressly agreed to by Customer.
8.3. CONFIDENTIALITY:
8.4. Obligations: The receiving Party shall not disclose or use any Confidential Information of the disclosing Party for any purpose outside the scope of this Agreement, except with the disclosing Party's prior written permission. Each Party shall protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the receiving Party is compelled by law to disclose Confidential Information of the disclosing Party, it shall provide the disclosing Party with prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing Party's cost, if the disclosing Party wishes to contest the disclosure, and the receiving Party shall continue to treat this information as Confidential Information for all other purposes.
8.5. Remedies: The disclosing Party has the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin any actual or threatened breach of this Section 8.
8.6. Exceptions: The receiving Party will not be obligated under this Section 8 for any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to the receiving Party prior to its disclosure by the disclosing Party; (iii) was independently developed by the receiving Party without use of or reference to any Confidential Information or breach of any obligation owed to the disclosing Party; or (iv) is received from a third party without restriction and without breach of any obligation owed to the disclosing Party.
8.7. Prior Non-Disclosure Agreement: Any existing non-disclosure agreement entered into by the Parties is hereby superseded and replaced by the terms in this Section 8, which will govern all disclosures and exchanges of Confidential Information made by the Parties previously under that agreement.
8.8. Aggregate Data: Subject to the terms of this Section, Customer acknowledges and agrees that Emma may use all data inputted into or collected by the SaaS Solutions, including but not limited to data related to Service utilization and Customer Data, on an aggregated and anonymous basis (collectively, "Aggregate Data") in compliance with applicable laws and Emma's Privacy Policy to provide the SaaS Solutions and for any commercial purposes, including distribution to other Emma customers and for the preparation and distribution of benchmarking, research, and analytical materials. Aggregate Data must not identify Customer as the source of any specific data or finding, nor will it include any personally identifiable information of any individual users. Emma shall maintain appropriate security measures for all Aggregate Data in accordance with the terms and conditions of this Agreement. Emma will be the sole and exclusive owner of all right, title and interest to such Aggregate Data.
9. INDEMNIFICATION:
9.1. Emma shall indemnify the Customer against loss, damage, costs and negligence or default of Emma, its employees' or subcontractors arising out of or in connection with the performance of the Services to the extent that they relate to:
- Breach of a third party's intellectual property rights as a consequence of the Customer using the Platform;
- Breach by Emma of applicable data protection legislation;
- Issues faced by the Customer by the introduction of any Virus, worms, malware or malicious software by Emma (save to the extent caused by any act, omission or direct instruction of the Customer).
9.2. The Customer shall indemnify Emma and defend Emma against any claim against Emma to the extent the claim results from: (i) Customer Data; (ii) Customer's breach of Section 4; or (iii) Customer's breach of the data protection legislation.
9.3. Each Party's liability under this clause 9 shall be no greater than the lower of:
- £10,000; or
- the liability cap set out in clause 10.2 and shall not apply to the extent that the loss is caused by the act or omission of the other party.
9.4. Procedures: The Indemnified Party must: (a) notify the Indemnifying Party promptly in writing of the claim, specifying the nature of the claim and such relief as is sought therein; (b) tender to the Indemnifying Party sole control of the defence or settlement of the claim at the Indemnifying Party's expense, provided, however, the Indemnifying Party may not settle a claim in a manner that would have an adverse impact on the business of the Indemnified Party without receiving the prior written consent of the Indemnified Party; and (c) cooperate and, at the Indemnifying Party's expense, assist in the defence of the claim. The Indemnified Party will have the right to participate at its own expense in any claim or related settlement negotiations using counsel of its own choice.
10. LIMITATION OF LIABILITY:
10.1. Limitations of Liability: Neither Emma nor customer excludes or restricts liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or to any extent not permitted by law.
10.2. To the extent permitted by law, neither party's total and aggregated liability arising out of or related to this agreement or the services provided hereunder, whether based on contract, tort (including negligence) or any other legal or equitable theory, will exceed three times (3x) the amounts actually paid by customer under the applicable sign-up form in the twelve (12) month period immediately preceding the first event giving rise to liability. The existence of more than one claim shall not enlarge this limit. The limitations in this section do not apply to: (a) a party's fraud or wilful misconduct; (b) death or personal injury caused by the negligence of Emma, its officers, employees, contractors or agents; (c) fraud or fraudulent misrepresentation; (d) breach of the obligations implied by section 12 of the sale of goods act 1979 or section 2 of the supply of goods and services act 1982; (e) customer's obligation to pay fees owed under this agreement; or (f) customer's indemnification obligations as set forth under section 9 of this agreement. These limitations of liability are independent of any exclusive remedies and will survive and apply notwithstanding the failure of essential purpose of any specified remedies.
10.3. Exclusion Of Damages: In no event shall either party be liable under this agreement for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage), regardless of the cause with the exception of clause 9.1 above, arising out of or in connection with the agreement or the services provided hereunder, even if advised of the possibility of these damages.
10.4. Acknowledgement: The fees charged under this agreement reflect the overall allocation of risk between the parties, including by means of the limitation of liability and exclusive remedies described in this agreement. These provisions form an essential basis of the bargain between the parties and a modification of these provisions would affect substantially the fees charged by Emma. In consideration of these fees, customer agrees to this allocation of risk and hereby waives any right, through equitable relief or otherwise, to subsequently seek a modification of these provisions or allocation of risk.
11. TERM AND TERMINATION:
11.1. Term: Unless this Agreement is earlier terminated in accordance with Section 11.3, this Agreement commences on the Effective Data and continues until the later to occur of: (i) the first anniversary of the Effective Date, or (ii) the expiration of the Subscription Term of the last outstanding Sign-up Form ("Term"). If the Subscription Term of a Sign-up Form is for multiple years, the specified annual fees are due in advance in each year of the Term, or as otherwise specified on the Sign-Up Form.
11.2. Renewal: Each Sign-up Form will renew at the end of its Subscription Term as specified thereon unless Customer provides timely notice of nonrenewal as specified in the applicable Sign-up Form. If the Sign-up Form specifies a certain number of events, registrants, rooms, emails or other billable instances annually, then this limitation pertains to each term year of the Subscription Term.
11.3. Termination: Either Party may terminate this Agreement immediately upon written notice at any time if: (i) the other Party commits a non-remediable material breach of this Agreement, including any breach by the Customer of the license granted in clause 3.1.1, or if the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching Party within 30 days of being notified in writing of the breach; (ii) the other Party ceases business operations; or (iii) the other Party becomes insolvent, generally stops paying its debts as they become due or becomes the subject of an insolvency or bankruptcy proceeding.
11.4. Termination of this Agreement by either Party will not limit a Party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Customer from its obligation to pay all fees that Customer has agreed to pay under this Agreement.
11.5. If Emma terminates this Agreement for Customer's non-payment, Customer agrees to pay to Emma the remaining value of the then-current initial or renewal term (that Customer acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate yearly (or monthly as the case may be) recurring fees (as set forth in the Sign-up Form) that will become due during the cancelled portion of such Term
11.6. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Sign-up Form or SOW. Sign-up Forms and SOWs that are not terminated shall continue in full force and effect under the terms of this Agreement.
11.7. Suspension: Emma may immediately restrict or suspend access to the Services if Emma becomes aware of, or reasonably suspects, any breach of this Agreement by Customer or its authorized users. Emma may remove any violating Customer Data posted or transmitted through a SaaS Solution. Emma will act in good faith and use reasonable efforts to notify Customer via phone or email before initiating suspending or restricting any Service. Customer is still responsible for full payment of the Sign-up Form(s) even if access to the Services is suspended or terminated for any breach of this Agreement.
11.8. Return of Data: Upon Customer's written request made within 30 days after the effective date of expiration or termination of this Agreement, Emma shall, provided Customer is not in breach of any of its obligations under the Agreement and upon Customer's payment of the applicable fees, make available to Customer for download a file of Customer Data in its then current format. After this 30-day period, Emma has no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete all Customer Data maintained in its production systems, provided Emma may retain archival copies of Customer data on backup media for a reasonable period of time not to exceed two (2) years following expiration or termination of any Sign-Up Form.
12. MISCELLANEOUS:
12.1. Force Majeure: A Party will be excused from performance under this Agreement for any period of time that the Party is prevented from performing its obligations hereunder as a result of an act of God, criminal acts, distributed denial of service attacks, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, pandemics, riots, war, utility or communication failures, or other cause beyond the Party's reasonable control. Both Parties shall use reasonable efforts to mitigate the effect of a force majeure event.
12.2. Waiver: The delay or failure of a Party at any time to enforce a right or remedy available to it under this Agreement with respect to any breach or failure will not be construed as a waiver with respect to that breach or failure or any other breach or failure.
12.3. Headings: The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.
12.4. Severability: If any provision of this Agreement is held invalid or unenforceable by a court, this Agreement will be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of Customer and Emma shall be construed and enforced accordingly.
12.5. Assignment: Except for assignment to a Party's affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such Party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other Party, neither Party may assign or otherwise transfer any right or obligation set forth under this Agreement without the other Party's prior written consent, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Emma may subcontract the provision of Service in whole or in part to an Emma affiliate. Any purported assignment or transfer in violation of this Section 12.5 is void.
12.6. Relationship of the Parties: Each Party is an independent contractor in the performance of this Agreement and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection with this Agreement.
12.7. Governing Law: This Agreement is governed by the laws of England and Wales without giving effect to its conflict of law provisions. Any dispute must be litigated in the English courts located in London, England to whose exclusive jurisdiction the Parties hereby consent. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. Each Party waives its right to a trial by jury for all matters or disputes arising from this Agreement.
12.8. Entire Agreement; Counterparts: This Agreement contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior agreements on the same subject matter and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. This Agreement may not be modified except by a writing signed by Emma and Customer. All pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect. The language of this Agreement is English, and only the English-language version may be used to represent this Agreement's terms. This Agreement and any SOW may be signed in any number of counterparts all of which together will constitute one and the same document. A signed copy of this Agreement or any SOW transmitted via facsimile, email or other electronic means will constitute an originally signed Agreement or SOW, as applicable, and, when together with all other required signed copies of this same Agreement or SOW, as applicable, will constitute one and the same instrument.
12.9. Use of Agents: Emma may designate an agent or subcontractor to perform certain tasks and functions under this Agreement. However, Emma will remain responsible for performance of its duties under this Agreement.
