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 Products related to events, camps, classes, transactions, sales, memberships, and/or activities (together, “Events”), including without limitation access to its Products. 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 Products. Products 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 Products 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 Products that Active provides.
2.2. Client will make reasonable efforts to promote and encourage the use and availability of the Products 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 Products 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 Products 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 Products 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 Products provided to Client hereunder, Client will cause such Events to immediately transition to the Products, 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 the Products 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 Products; 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 Products 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 Products 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. PRIVACY AND DATA PROTECTION.
3.1 End User Personal Information. The Products are designed to enable Client to collect information from and about End Users. Information that identifies, relates to, describes, is reasonably capable of being associated with or could reasonably be linked, directly or indirectly, with a particular End User shall be referred to herein as “End User Personal Information.” The Products process two forms of End User Personal Information:
3.2 End User Accounts. When an End User interacts with the Products for the first time, Active creates an account for that End User (“End User Account”). Active authenticates the End User in future interactions with the Products by requiring the End User to log in to their End User Account. Active maintains End User Accounts pursuant to the Terms of Use and Privacy Notice that Active displays to the End User when the End User creates the End User Account.
3.3 Participant Information. Client will have the ability to use the Products to collect a wide variety of End User Personal Information from authenticated End Users, including through the use of forms and features that enable the collection of images and other attachments (“Participant Information”). As between the Parties, Client is exclusively responsible for providing any notices, procuring any consents, and otherwise taking any steps that are necessary to ensure that Active’s collection, storage, and processing of Participant Information on behalf of Client, as contemplated by this Agreement, is compliant with Data Protection Laws. For the purposes of this Product Attachment, “Data Protection Laws” means all local, state, federal and foreign privacy, security, marketing and consumer protection laws and regulations applicable to the processing of Participant Information. Active will process Participant Information solely for the purpose of providing the Products to Client, and as otherwise permitted by Data Protection Laws. Client agrees that it will process Participant Information at all times in compliance with Data Protection Laws, and that it will not use any Participant Information to communicate with any End User in a manner that violates the CAN-SPAM Act, the Canadian Anti-Spam Legislation, the Telephone Consumer Protection Act, or any other law or regulation applicable to Client’s outreach to End Users via email or SMS. Client further agrees that Client will not permit any Affiliate or third party to access or process any Participant Information in a manner inconsistent with this Agreement, or in a manner which would cause Active’s processing of such Participant Information, as contemplated by this Product Attachment, to violate Data Protection Laws. If Client is subject to a Data Protection Law that requires the Parties to enter into a Data Protection Addendum that includes terms supplemental to this Product Attachment, it is Client’s obligation to notify Active of that requirement.
3.4 Data Retention. The Products are not designed to serve as a permanent system of record. During the Term, Active reserves the right to delete any Participant Information that has not been accessed or modified within a trailing period of five (5) years. At the conclusion of the Term, Active will: (i) convert all Participant Information to a backup format approximately thirty (30) days after the end of the Term; and (ii) permanently delete all Participant Information approximately one (1) year after the end of the Term. If Client is subject to any legal obligation that would require Client to maintain any Participant Information for a longer period than those set forth in this Section 3.2, it is Client’s responsibility to retrieve that Participant Information from the products and to store it in another format within the time periods allotted. Notwithstanding anything else set forth in the Agreement or in this Product Attachment, Active shall not be in any way responsible for any negative consequences associated with Client’s failure to adhere to the requirements set forth in this Section 3.2.
3.5 Prohibition on Certain Categories of Participant Information. The Products are customizable, meaning Client has the ability to choose what kinds of Participant Information Client will use the Products to collect. Client agrees, however, that Client will not use the Products to collect or otherwise process: (i) any personal health information that is subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its accompanying regulations, or any relevant amendments thereto; (ii) any Participant Information from or about a minor, without procuring and documenting a prior consent that meets the requirements of any applicable Data Protection Laws, and maintaining such documentation for the duration of the Term; (ii) any cardholder data subject to the Payment Card Industry Data Security Standard (“PCI-DSS”), or any other payment card or financial account information, except within pre-defined fields designed for that purpose; or (iii) any unredacted social security numbers or other similar government identifiers, except within pre-defined fields designed for that purpose. If Active discovers any violation of this Section 3.3 by Client, Active reserves the right to promptly and securely dispose of any prohibited Participant Information found within the Products.
3.6 User Accounts. Client is exclusively responsible for: (a) creating and defining under Client’s account in the Products any logons or IDs for Client’s Users of the Products; and (b) defining and maintaining at all times with respect to each such logon or ID the appropriate scope of the applicable User’s authority and permission with respect to the use of the Products and the security controls, restrictions, and limitations that apply with respect to each such User and his or her use of the Products. Client is solely and exclusively responsible for all access and use of the Products (and for any resulting activity or communications) by Client or its Users or that occurs through the use of any logon or ID established by or with respect to Client or any of its Users. Active shall not be liable or responsible for any activity, loss, or damage arising from any unauthorized access to or use of any such logons or IDs or resulting from any failure by Client or its system administrator to establish or assign an appropriate scope of authority or permission, or appropriate security controls, restrictions, or limitations, with respect to any given User, logon, or ID. Client shall immediately notify Active of any known or suspected unauthorized access to or use of Client’s account, or of any logons or IDs established or assigned with respect to Client or its Users, of which Client becomes aware.
4. FEES.
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. If applicable, 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 Products 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 Products 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 twelve (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 Products that are related to or interoperable with the Products 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. MISCELLANEOUS.
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.
