Previous Terms of Service

THESE TERMS OF SERVICE (“TERMS”) GOVERN YOU AND YOUR AFFILIATES’ ACQUISITION AND USE OF THE PRODUCTS AND SERVICES MADE AVAILABLE TO YOU BY DOUBLEDUTCH, INC. (“DOUBLEDUTCH”). THE TERMS “YOU” OR “YOUR” SHALL REFER TO YOU PERSONALLY OR, IF YOU REPRESENT A COMPANY OR OTHER SUCH ENTITY, TO THAT COMPANY/ENTITY AND ITS EMPLOYEES, AGENTS AND AFFILIATES AS THE CASE MAY BE.

UPON COMPLETE EXECUTION OF AN ORDER FORM (DEFINED BELOW AND REFERRED TO HEREIN AS AN “ORDER”), THESE TERMS SHALL BECOME PART OF YOUR BINDING, LEGAL CONTRACT. IF YOU SIGNED THE ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS.

Terms of Service 02-12-2016

Defined Terms

“Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.

“Agreement” means, collectively, these Terms and an applicable Order.

“App” means each DoubleDutch proprietary mobile, tablet, and web-based application, identified in an Order.

“Content” means all of the copyrighted materials, data, information, and other content, whether copyrighted or not, originated by You and delivered to DoubleDutch that is required for the App to operate properly in connection with the Professional Services and the Services.

“CMS” means DoubleDutch’s Content Management System and portal described below.

“End User” means an individual who downloads or otherwise accesses an App for that individual’s own personal use and not for resale or distribution to any other person or entity.

“EULA” means an End User License Agreement entered into by End Users.

“Event” means a conference or other gathering produced by You.

“Exhibitor” means a vendor, company, individual, entity or organization other than You that You invite to Your Event and to whom You may grant certain rights and privileges to use the App and who may provide data to be used in the App at one or more events.

“Marks” means each of Your trademarks, service marks, and logos that are delivered or made available to DoubleDutch for use in connection with the Agreement.

“Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in the App through the CMS that must meet the specifications provided to you by DoubleDutch.

“Order” means an Order Form that references these Terms and is signed by DoubleDutch and You.

“Professional Services” means any consulting, on-site support, or similar professional services to be performed by DoubleDutch, as identified in an Order.

“Services” means, collectively, DoubleDutch’s standard proprietary service offering consisting of the provision of the App, access to DoubleDutch websites and software (including CMS), hosting of the App and websites, assistance with use of CMS, App distribution assistance, technical support, and related services made available by DoubleDutch to You on a subscription basis, as identified in an Order.

“Term” means the period beginning on the Contract State Date and ending on the Contract End Date, each as specified in Your Order, which may be further extended by the automatic renewal provision of Section 9.1.

  • General

    DoubleDutch shall not be obligated to deliver any App, perform any Professional Services, or make any Services available to You until both parties execute the applicable Order describing such App, Services, or Professional Services. References to the Agreement include the applicable Order. Nothing in this Agreement obligates either party to enter into any Order(s) or any further agreements. In the event of conflict between these Terms and an Order, these Terms shall prevail.

  • Event Information and Content

    3.1 Content Management System. As a part of the Services, DoubleDutch will provide You with access credentials, during the Term, to an online portal hosted by DoubleDutch (“Content Management System” or “CMS”) through which You will be able to upload Event information and other Content for Your Event, push notifications to Event attendees, and access attendee data and related usage metrics.

    3.2 Your Responsibility. It is Your responsibility to provide through the Content Management System all Event-specific Content required for the App to operate properly. You must deliver all necessary Event-specific Content for an Event no later than five (5) days prior to the start date of the Event in order for the Services and App to be available to End Users in a timely manner.

    3.3 Unauthorized Use. You are responsible for maintaining the confidentiality of all usernames and passwords issued to You and are solely responsible for all activities that occur under these usernames.

    3.4 CMS Assistance. DoubleDutch will use commercially reasonable efforts to provide content integration assistance and support to finalize the onboarding of Your Content into the App.

  • Apps

    4.1 App Features. End Users and Exhibitors will have access to Event-specific features as described in the DoubleDutch features list here by accessing the Services through the Apps.

    4.2 Your Responsibility. It is Your responsibility to provide DoubleDutch with branded Media Assets for each Event-specific App in accordance with the specifications provided by DoubleDutch. You must deliver all necessary Media Assets for each Event-specific App no later than twenty (20) business days prior to the intended launch date of the App in order for the App to be available to End Users.

  • App Store Distribution

    5.1 Distribution. Unless You are expressly identified on the applicable Order as the party that will distribute the App, DoubleDutch will be responsible for making mobile-based Apps available through the Apple® App Store℠, the Google Play™ app store, or other mobile application stores identified in the applicable Order (each, an “App Store”). DoubleDutch will use commercially reasonable efforts to make the App available, and cause it to be distributed to End Users, through the applicable App Store, in accordance with DoubleDutch’s end user agreement and/or privacy policy.

    5.2 App Store Distribution. If You are responsible for distributing the App, You must deliver the iOS Distribution Certificate, Apple® Push Notifications Production Certificate, provisioning profile with App ID and Bundle Identifier and associated passwords for each App to DoubleDutch no later than fifteen (15) days prior to intended App launch date in order to effect a timely deployment.

    5.3 Distribution Requirements. If You are responsible for distributing the App, You will comply with all applicable rules, guidelines, and terms and conditions of each App Store relating to the distribution permitted by this Agreement and will only distribute the Apps to End Users subject to a binding agreement that complies with the requirements of the applicable App Store and that contains the following terms: (i) title to, and ownership of, the Apps (excluding any of Your Content and/or Marks therein) remains with DoubleDutch; (ii) the Apps may not be altered, modified, distributed, transferred, reverse engineered, decompiled, or disassembled; (iii) all warranties, express and implied, are disclaimed on behalf of DoubleDutch; (iv) all direct, consequential, special, and indirect damages are disclaimed on behalf of DoubleDutch; and (v) data use and license provisions, as required to be passed to End Users pursuant to an EULA subject to Section 10 of this Agreement.

    5.4 App Distribution Assistance. If You are responsible for distributing the App, DoubleDutch will use commercially reasonable efforts to provide distribution assistance and support to upload the App to the App Store.

    5.5 App Store Operator. You acknowledge and agree that the operator of each applicable App Store has the discretion to approve or reject the Apps and that DoubleDutch shall have no responsibility for any App that is rejected by the owner/operator of an applicable App Store.

    5.6 Suspension. DoubleDutch will have the right to suspend or discontinue the distribution of any App in the event that it determines that such distribution may result in harm, damage, or liability for DoubleDutch.

    5.7 Google Play™ Distribution. If You elect to use Google Play™ to distribute the App to Your End Users and/or Exhibitors, it is solely Your responsibility to obtain and maintain a Google Play™ developer account during the Term. You may elect, in your sole discretion, to provide DoubleDutch with “Release Manager” access to Your Google Play™ account or, in the alternative, DoubleDutch can provide You Android .apk files to upload to the App to enable such use.

  • Services

    6.1 Hosting Services. After all Event Content has been delivered by You through the Content Management System, DoubleDutch will host and make available such Content together with the App for access and use by End Users and/or Exhibitors.

    6.2 Access. Access to the Services is provided on a subscription basis, and Your ability to access and use, and enable End Users to access and use, the Services and content contained therein is dependent upon a then-current subscription term being in effect.

    6.3 Support. DoubleDutch will provide technical support for the CMS to You, Your End Users and Your Exhibitors as specified in Your Order and as further specified below. Additional information regarding DoubleDutch support can be found at http://doubledutch.me/service-6-15.html.

    6.3.1 Support for You. DoubleDutch will provide technical support to You via one or more of Your employees You identify as the “Dashboard Administrator Users” in Your Order. Technical support will be available to You 9 a.m. to 5 p.m. PT, 7 a.m. to 3 p.m. GMT and 9 a.m. to 5 p.m. HKT via DoubleDutch’s support portal at http://customersupport.doubledutch.me or by calling the Customer Support Phone Number found at http://doubledutch.me/service-6-15.html.

    6.3.2 Support for Your End Users.. DoubleDutch will provide technical support to Your End Users 24 hours a day, 7 days a week, 365 days a year via DoubleDutch’s support portal at attendeesupport@doubledutch.me.

    6.3.3 Exhibitor Support. DoubleDutch will provide technical support to Your Exhibitors 24 hours a day, 7 days a week, 365 days a year via DoubleDutch’s support portal at exhibitorsupport@doubledutch.me.

    6.4 Access. DoubleDutch will make commercially reasonable efforts to provide You with access to the App 95% of the time during the Term, subject to normal maintenance and subject to You and/or the End Users having adequate connectivity and hardware.

  • Professional Services.

    If an Order identifies certain Professional Services to be performed, DoubleDutch shall perform such Professional Services in a professional and workmanlike manner.

  • Fees

    8.1 Fees. You shall pay DoubleDutch the fees for the Services provided over the Term and for the Professional Services, in each case as described in the Order. Without limiting its other remedies, DoubleDutch will have the right to withhold performance of Professional Services and/or terminate and/or suspend access to the Services if amounts due are not timely paid. All payment obligations are non-cancelable and fees paid are non-refundable.

    8.2 Taxes. The fees exclude all applicable sales, use, and other taxes (other than taxes on DoubleDutch’s income), duties, charges, and related fees and penalties in each case arising from any payments to be made to DoubleDutch under this Agreement and/or performance hereunder (collectively, “Taxes”), and You will be responsible for payment of all Taxes. You will make all payments of fees to DoubleDutch free and clear of, and without reduction for, any withholding taxes; any such taxes will be Your sole responsibility, and You will provide DoubleDutch with official receipts issued by the appropriate taxing authority, or such other evidence as DoubleDutch may reasonably request, to establish that such taxes have been paid.

  • Term and Termination

    9.1 Term. Unless sooner terminated as permitted herein, the Agreement shall commence and expire on the dates identified in Your Order.
    Following expiration, the Order will automatically renew under the same terms unless either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term or the parties enter into a new Order that expressly replaces and supersedes the then-existing Order.

    9.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than fourteen (14) days after receipt of written notice of such breach. Upon termination or expiration of this Agreement for any reason, all rights and obligations of both parties, including all licenses granted hereunder (except the licenses described in Section 10.8), shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 11.1.

    9.3 Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 2, 3.3, 8, 9.3, 10.2, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, 11, 12, 13, 14 and 15. Rights under any then-in-effect EULA shall survive expiration or termination of this Agreement in accordance with their terms.

  • Intellectual Property Licenses and Ownership

    10.1 CMS License. DoubleDutch shall own and retain all right title and interest in and to the CMS and DoubleDutch hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, worldwide, non-exclusive, non-transferable (except as set forth in Section 15.10), fully paid, royalty-free, non-assessable license during the Term to access and use the CMS solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Services.

    10.2 Restrictions on Use. You shall not, and shall not permit any third party to: (i) reproduce, modify, adapt, alter, translate or create derivative works from the CMS and/or any App; (ii) merge the CMS and/or any App with any other software; (iii) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the CMS and/or any App; or (iv) distribute, sublicense, lease, rent, loan, or otherwise transfer the CMS and/or any App to any third party except as expressly allowed under this Agreement. You must not remove, alter, or obscure in any way any proprietary notices of DoubleDutch or its suppliers on or within any copies of the CMS and/or any App.

    10.3 DoubleDutch IP.

    10.3.1 The Services, CMS, and Apps and any other work product resulting from the Services and/or the Professional Services, including, without limitation, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, and other intellectual property, together with any revisions, additions and refinements and derivative works thereof, all of which have been and will continue to be independently developed, whether within or outside of the scope of the Services, which may or may not be included in a portion of the Services or Professional Services, but excluding all Content, Media Assets and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “DoubleDutch IP”), are the exclusive property of DoubleDutch. For avoidance of doubt, any copyrightable subject matter developed by DoubleDutch during the Term of this Agreement is not a work made for hire and shall be owned directly by DoubleDutch. All licenses granted by DoubleDutch to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any DoubleDutch IP.

    10.3.2 DoubleDutch may explicitly identify its ownership or other rights within the Services, CMS, and Apps and any other work product resulting from the Services and/or the Professional Services by using its branding, trademarks, the phrase “Powered by DoubleDutch” or other identifying material.

    10.4 Assignment of Rights. If You obtain any ownership rights in or to any DoubleDutch IP or any other work product resulting from DoubleDutch’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to DoubleDutch; (ii) waive any enforcement of any such ownership rights You may have against DoubleDutch; (iii) grant DoubleDutch an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and (iv) covenant and agree that in the event any moral rights exist that cannot be assigned to DoubleDutch, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with DoubleDutch’s economic exploitation of such material or which might inhibit DoubleDutch from modifying the material in any manner in which DoubleDutch sees fit.

    10.5 License to Your IP. You hereby grant DoubleDutch a worldwide, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify all Content, Media Assets and Marks (collectively, “Your Licensed IP”), solely as follows: (i) in connection with the performance of Services and Professional Services; (ii) for creation of, or incorporation of materials into, the CMS and any App; and (iii) in connection with marketing activities as requested by You in the Order.
    Your Licensed IP is and shall remain Your exclusive property. The license granted by You to DoubleDutch to use Your Licensed IP as provided herein is express, is limited to its terms and conditions specified herein, and there are no implied licenses granted by You to DoubleDutch.

    10.6 Your Licensed IP. You represent and warrant that: (i) Your Licensed IP is correct and current; (ii) is owned by You or You have the right to grant the license in Section 10.5 above; (iii) that DoubleDutch’s placement, provision and/or use of Your Licensed IP hereunder shall not violate or infringe the intellectual property, moral, privacy, or publicity rights of any third party; and, (iv) to the extent necessary, DoubleDutch’s use of Your Licensed IP has been properly and completely approved for the uses hereunder.

    10.7 End User Data. To the extent You obtain End User data (such as posts, photos and responses to polls from Event participants and names of Event participants), including any rights therein, as part of the Services or use of an App (collectively, the “End User Data”), You agree to process End User Data in accordance with local data protection legislation, to inform End Users of the means and purposes for which you process their data and to inform End Users of their rights to access, delete and modify their personal data.

    10.8 License to End User Data. To the extent You obtain End User Data, You grant DoubleDutch a perpetual, worldwide, royalty-free, and nonexclusive sub-licenseable right to (i) use, reproduce, modify, and adapt all End User Data in connection with the Services and distribution and use of any App; and, (ii) use End User Data to improve our services, applications, develop new products, and launch services for other purposes.

    10.9 Your Right to License End User Data. Distribution of an App is subject to a EULA binding on Your End Users in the respective App Store (Apple® App Store℠ and the Google Play™) that contains an express license and such other terms necessary for You to obtain End User Data that DoubleDutch can use pursuant to Section 10.8 and that disclaims all liability on behalf of DoubleDutch and its suppliers for such use of the End User Data; and (ii) a legally-compliant privacy policy (the “End User Privacy Policy”) will be published and displayed, applicable to all End Users’ use of the Apps, and such Privacy Policy shall disclose and describe Your collection, licensing and DoubleDutch’s use of End User Data in accordance with this Section 10. You shall be responsible for compliance with the End User Privacy Policy and all applicable laws in connection with its distribution and use of the Apps.

    10.10 End User and Exhibitor Data. To the extent the End User Privacy Policy and/or applicable data protection legislation permits an End User to request removal of their personally identifiable End User Data from the Services or the App, DoubleDutch will comply with a written request from You to do so. Upon such a written request from You, DoubleDutch’s license to such personally identifiable End User Data shall terminate. Notwithstanding the foregoing, for the avoidance of doubt, End User Data that You request DoubleDutch remove pursuant to this Section 10.10 shall not include, and DoubleDutch may collect, retain and use all data related to usage of the Services and all Apps, including usage statistics, which may include non-personally identifiable End User Data in aggregate form.

  • Confidentiality

    11.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Apps and all enhancements and improvements in the foregoing, and technical and functional information of the Services will be considered Confidential Information of DoubleDutch.

    11.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files consistent with that party’s records retention/destruction policy) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section shall not apply to any information that: (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who did not use the Confidential Information.

    11.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  • 12. Representations and Warranties; Disclaimer

    THE APPS, CMS, PROFESSIONAL SERVICES AND THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND DOUBLEDUTCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE APPS AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES AND SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DOUBLEDUTCH DOES NOT WARRANT THAT USE OF THE APPS, CMS, PROFESSIONAL SERVICES AND THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

  • 13. Limitation of Liability

    EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO ANY APP, PROFESSIONAL SERVICES, OR THE SERVICES. EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, EACH PARTY’s TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, ANY APP, PROFESSIONAL SERVICES, AND/OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO DOUBLEDUTCH BY YOU UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT SHALL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL DOUBLEDUTCH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

  • 14. Indemnification

    14.1 By DoubleDutch. DoubleDutch will defend, indemnify and hold You harmless at its own expense for any action against You brought by a third party to the extent that the action is based upon any claim that the Apps (excluding any Content, Marks, or any End User Data incorporated therein) infringe any U.S. copyrights or misappropriates any trade secrets (including those recognized as such under the Uniform Trade Secret law) and will pay those costs and damages finally awarded against You in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Notwithstanding the foregoing, DoubleDutch will have no obligation with respect to an infringement claim based upon (i) any use of the Apps (or any of its components) not in accordance with this Agreement, (ii) any use of the Apps (or any of its components) in combination with other products, equipment, software or data not supplied by DoubleDutch, or (iii) any modification of the Apps (or any of its components) by any person other than DoubleDutch and its authorized representatives (collectively, “Excluded Claims”). If any App becomes, or in DoubleDutch’s opinion is likely to become, the subject of an infringement claim, DoubleDutch may at its option, (a) procure for You the right to continue using the App, (b) replace or modify the infringing component(s) of the App so that it becomes non-infringing, or (c) terminate this Agreement and refund any fees actually paid by You to DoubleDutch as advance payment for delivery of Services for the remainder of the Order term then in effect. This Section 14.1 states Your sole and exclusive remedy and DoubleDutch’s entire liability for infringement claims and actions.

    14.2 By You. You will defend, indemnify and hold DoubleDutch harmless at Your expense for any action brought against DoubleDutch, and will pay any settlement You make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party resulting from or relating to (i) any actions or omissions on Your part in marketing or distributing the Apps, (ii) any representations, warranties, or guarantees made or published by You, (iii) the Content, Marks, Media Assets or (iv) the Excluded Claims. This Section 14.2 states the sole and exclusive remedy of DoubleDutch and Your entire liability for the claims and actions described herein.

    14.3 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, the indemnitee giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.

  • Miscellaneous

    15.1 Notice. Notices to You will be sent to the address You provide on the Order. Notices to DoubleDutch must be sent to the mailing address set forth below. Each party has the right to change its address for notice by providing the other party at least ten (10) days’ prior, written notice. Address for notice to DoubleDutch: DoubleDutch, Inc., 350 Rhode Island Street, Suite 375, San Francisco, California 94103, Attention: Legal Department.

    15.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agree in writing.

    15.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.

    15.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.

    15.5 Modifications and Amendments. DoubleDutch may at any time, with or without notice, revise the portion of the Agreement consisting of these Terms by providing written notice to You or by prominently posting an update to this online document on the DoubleDutch website. For purposes of this Section 15.5, You acknowledge and agree that notice to You may be provided by email to the email address set out in the Order. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following notice or posting of changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. All modifications or amendments to the Order must be made in a writing signed by both parties in order to be effective.

    15.6 Publicity. Upon mutual agreement, the parties may issue a press release, case study, blog post or social media post relating to the business relationship between them.

    15.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.

    15.8 Entire Agreement. This Agreement, together with the applicable Order, constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement.

    15.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.

    15.10 Remedies. You acknowledge that the Apps contain valuable trade secrets and proprietary information of DoubleDutch, that any actual or threatened breach of Sections 10 or 11 shall constitute immediate, irreparable harm to DoubleDutch for which monetary damages would be an inadequate remedy. In such case, DoubleDutch will be entitled to immediate injunctive relief without the requirement of posting bond.

    15.11 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, except that either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.

    15.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

    15.13 Governing Law;Venue. This Agreement is governed by and interpreted in accordance with the laws of the State of California, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of San Francisco County, California or the Northern District of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.

 

Version 2.12.2016

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Terms of Service 03-11-2015

  1. Defined Terms

    “Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.

    “Agreement” means, collectively, these Terms and an applicable Order.

    “App” means each DoubleDutch proprietary mobile, tablet, and web-based application, identified in an Order.

    “Content” means the copyrighted materials, data, information, and other content originated by You and delivered to DoubleDutch for use in connection with the Professional Services, the Services, and/or Apps.

    “End User” means an individual that downloads or otherwise accesses an App for that individual’s own personal use and not for resale or distribution to any other person or entity.

    “Event” means a conference organized and produced by You.

    “Marks” means each of Your trademarks, service marks, and logos that are delivered or made available to DoubleDutch for use in connection with the Agreement.

    “Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in the App.

    “Order” means an ordering document that references these Terms and that is signed by DoubleDutch and You.

    “Professional Services” means any consulting, on-site support, or similar professional services to be performed by DoubleDutch, as identified in an Order.

    “Services” means, collectively, DoubleDutch’s standard proprietary service offering consisting of the provision of the App, access to DoubleDutch websites and software (including CMS), hosting of the App and websites, assistance with use of CMS, App distribution assistance, technical support, and related services made available by DoubleDutch to You on a subscription basis, as identified in an Order.

  2. General

    DoubleDutch shall not be obligated to deliver any App, perform any Professional Services, or make any Services available to you until both parties execute the applicable Order describing such App, Services, or Professional Services. References to the Agreement include the applicable Order. Nothing in this Agreement obligates either party to enter into any Order(s) or any further agreements. In the event of conflict between these Terms and an Order, these Terms shall prevail.

  3. Event Information and Content

    3.1 Content Management System. DoubleDutch will provide You with access credentials for an online portal hosted by DoubleDutch (“Content Management System” or “CMS”) through which You will be able to upload conference information and other Content for Your Event, push notifications to Event attendees, and access attendee data and related usage metrics.

    3.2 Your Responsibility. It is Your responsibility to provide through the Content Management System all Event-specific data, materials and content required for the App to operate properly. You must deliver all necessary Content for each Event no later than five (5) days prior to the start date of the Event in order for the Services to be available to End Users in a timely manner.

    3.3 Unauthorized Use. You are responsible for maintaining the confidentiality of all usernames and passwords issued to You and are solely responsible for all activities that occur under these usernames.

    3.4 CMS Assistance. DoubleDutch will use commercially reasonable efforts to provide content integration assistance and support to finalize the onboarding of Your Event content into the App.

  4. Apps

    4.1 App Features. End Users will have access to Event-specific features as described in the DoubleDutch features list at www.doubledutch.me/features-list.html by accessing the Services through the Apps.

    4.2 Your Responsibility. It is Your responsibility to provide DoubleDutch with branded Media Assets for each Event in accordance with the specifications provided by DoubleDutch. You must deliver all necessary Media Assets for each Event no later than twenty (20) business days prior to the intended launch date of the App in order for the App to be available to End Users.

  5. App Store Distribution

    5.1 Distribution. Unless You are expressly identified on the applicable Order as the party that will distribute the App, DoubleDutch will be responsible for making mobile-based Apps available through the Apple App Store, the Google Play app store, or other mobile application stores identified in the applicable Order (each, an “App Store”). DoubleDutch will use commercially reasonable efforts to make the App available, and cause it to be distributed to End Users, through the applicable App Store, in accordance with DoubleDutch’s end user agreement and/or privacy policy.

    5.2 Your Responsibility. If You are responsible for distributing the App, You must deliver the iOS Distribution Certificate, Apple Push Notifications Production Certificate, provisioning profile with App ID and Bundle Identifier and associated passwords for each App to DoubleDutch no later than fifteen (15) days prior to intended App launch date in order to effect a timely deployment.

    5.3 Distribution Requirements. If You are responsible for distributing the App, You will comply with all applicable rules, guidelines, and terms and conditions of each App Store relating to the distribution permitted by this Agreement and will only distribute the Apps to End Users subject to a binding agreement that complies with the requirements of the applicable App Store and that contains the following terms: (i) title to, and ownership of, the Apps (excluding any of Your Content and/or Marks therein) remains with DoubleDutch; (ii) the Apps may not be altered, modified, distributed, transferred, reverse engineered, decompiled, or disassembled; (iii) all warranties, express and implied, are disclaimed on behalf of DoubleDutch; (iv) all direct, consequential, special, and indirect damages are disclaimed on behalf of DoubleDutch; and (v) data use and license provisions, as required to be passed to End Users under Section 10 of this Agreement (an “EULA”).

    5.4 App Distribution Assistance. If You are responsible for distributing the App, DoubleDutch will use commercially reasonable efforts to provide distribution assistance and support to upload the App to the App Store.

    5.5 App Store Operator. You acknowledge and agree that the operator of each applicable App Store has the discretion to approve or reject the Apps and that DoubleDutch will have no responsibility for any App that is rejected.

    5.6 Suspension. DoubleDutch will have the right to suspend or discontinue the distribution of any App in the event that it determines that such distribution may result in harm, damage, or liability for DoubleDutch.

  6. Services

    6.1 Hosting Services. After all Event Content has been delivered by You through the Content Management System, DoubleDutch will host and make available such Content together with the App for access and use by End Users.

    6.2 Access. Access to the Services is provided on a subscription basis, and Your ability to access and use, and enable End Users to access and use, the Services and content contained therein is dependent upon a then-current subscription term being in effect.

    6.3 Support. DoubleDutch will provide technical end user support for the App to one or more of Your employees identified as dashboard administrator users and directly to End Users.

    6.4 Support Center. Support is provided Monday through Friday, from 9 a.m. to 6 p.m. DoubleDutch shall use commercially reasonable efforts to respond to requests for Support within four (4) business hours. If a Support inquiry is made during off hours, DoubleDutch shall use commercially reasonable efforts to respond as quickly as possible on the next business day. All Support related items should be sent to: support@doubledutch.me.

  7. Professional Services.

    If an Order identifies certain Professional Services to be performed, DoubleDutch shall perform such Professional Services in a professional and workmanlike manner.

  8. Fees

    8.1 Fees and Expenses. You shall pay DoubleDutch the fees for the Services provided over the term of the subscription and for the Professional Services, in each case as described in the Order.

    8.2 Changes. You can upgrade Your Services to a higher tier at any time by executing a new Order. However, You cannot downgrade to a lower tier during the relevant subscription term. All payment obligations are non-cancelable and fees paid are non-refundable.

    8.3 Payment Terms. Invoices are due and payable in full in USD within thirty (30) days after date of invoice (Net 30). DoubleDutch will have the right to withhold performance of Professional Services and/or terminate and/or suspend access to the Services if amounts due are not paid within in payment terms or at least 2 business days prior to the first event deployment date.

    8.4 Early Payment Discount. DoubleDutch will give you a two percent (2%) discount for invoices paid in full within ten (10) days of the invoice date.

    8.5 Taxes. The fees exclude all applicable sales, use, and other taxes (other than taxes on DoubleDutch’s income), duties, charges, and related fees and penalties in each case arising from any payments to be made to DoubleDutch under this Agreement and/or performance hereunder (collectively, “Taxes”), and You will be responsible for payment of all Taxes. You will make all payments of fees to DoubleDutch free and clear of, and without reduction for, any withholding taxes; any such taxes will be Your sole responsibility, and You will provide DoubleDutch with official receipts issued by the appropriate taxing authority, or such other evidence as DoubleDutch may reasonably request, to establish that such taxes have been paid.

  9. Term and Termination

    9.1 Term. Unless sooner terminated as permitted herein, this Agreement shall commence and expire on the dates as identified in the Order. Following expiration, the Order will renew under the same terms unless You provide timely notice of non-renewal as specified in the Order or enter into a new Order that expressly replaces and supersedes the then-existing Order.

    9.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than thirty (30) days after receipt of written notice of such breach. Upon termination or expiration of this Agreement for any reason, all rights and obligations of both parties, including all licenses granted hereunder (except the licenses described in Section 10.8), shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 11.1.

    9.3 Survival. The following Sections will survive expiration or termination of this Agreement: 1, 2, 3.3, 5.3, 5.6, 8, 9.3, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, 11, 12, 13, 14, and 15. Rights under any then-in-effect EULA will survive expiration or termination of this Agreement in accordance with their terms.

  10. Intellectual Property Licenses and Ownership

    10.1 CMS License. DoubleDutch shall own and retain all right title and interest in and to the CMS and DoubleDutch hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, worldwide, non-exclusive, non-transferable (except as set forth in Section 15.11), fully paid, royalty-free, non-assessable license during the Term of Your Agreement to access and use the CMS solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Services.

    10.2 Restrictions on Use. You shall not, and shall not permit any third party to: (i) reproduce, modify, adapt, alter, translate or create derivative works from the CMS and/or any App; (ii) merge the CMS and/or any App with any other software; (iii) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the CMS and/or any App; or (iv) distribute, sublicense, lease, rent, loan, or otherwise transfer the CMS and/or any App to any third party except as expressly allowed under this Agreement. You must not remove, alter, or obscure in any way any proprietary notices of DoubleDutch or its suppliers on or within any copies of the CMS and/or any App.

    10.3 DoubleDutch IP. The Services, CMS, and Apps and any other work product resulting from the Services and/or the Professional Services, including, without limit, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, and other intellectual property, together with any revisions, additions and refinements and derivative works thereof, all of which have been and will continue to be independently developed, whether within or outside of the scope of the Services, which may or may not be included in a portion of the Services or Professional Services, but excluding all Content and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “DoubleDutch IP”), are the exclusive property of DoubleDutch. For avoidance of doubt, any copyrightable subject matter developed by DoubleDutch during the Term of this Agreement is not a work made for hire and shall be owned directly by DoubleDutch. All licenses granted by DoubleDutch to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any DoubleDutch IP.

    10.4 Assignment of Rights. If You obtain any ownership rights in or to any DoubleDutch IP or any other work product resulting from DoubleDutch’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to DoubleDutch; (ii) waive any enforcement of any such ownership rights You may have against DoubleDutch; (iii) grant DoubleDutch an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and iv) covenant and agree that in the event any moral rights exist that cannot be assigned to DoubleDutch, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with DoubleDutch’s economic exploitation of such material or which might inhibit DoubleDutch from modifying the material in any manner in which DoubleDutch sees fit.

    10.5 License to Your IP. You hereby grant DoubleDutch a worldwide, fully paid, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify Your Content and Marks (collectively, “Your Licensed IP”), solely as follows: (i) in connection with the performance of Services and Professional Services; (ii) for creation of, or incorporation of materials into, the CMS and any App; and (iii) in connection with marketing activities as requested by You in the Order. Your Licensed IP is and shall remain Your exclusive property. The license granted by You to DoubleDutch to use Your Licensed IP as provided herein is express, is limited to its terms and conditions specified herein, and there are no implied licenses granted by You to DoubleDutch.

    10.6 Warranty and Indemnification to use Your Licensed IP. You represent and warrant that: (i) Your Licensed IP is correct and current; (ii) is owned by You or You have the right to grant the license in Section 10.5 above; (iii) that DoubleDutch’s placement, provision and/or use of Your Licensed IP hereunder shall not violate or infringe the intellectual property, privacy, or publicity rights of any third party; and, (iv) to the extent necessary, DoubleDutch’s use of Your Licensed IP has been properly and completely approved for the uses hereunder. You shall indemnify and hold DoubleDutch harmless for any liability or damages costs or expenses of any kind, including without limit, DoubleDutch’s attorneys’ fees, resulting or arising from any claims, causes of action, or disputes regarding DoubleDutch’s use of Your Licensed IP pursuant to the terms of this Agreement (a “Dispute”). DoubleDutch shall notify You promptly in writing of a Dispute and You shall have the right and option to control the defense and settlement thereof and DoubleDutch shall provide You reasonable assistance therein. DoubleDutch shall be entitled to actively participate in the defense of any Dispute at DoubleDutch’s expense.

    10.7 License to Your End User Data. To the extent You obtain End User data and/or Content, including any rights therein, as part of the Services or use of an App (collectively, the “End User Data”), You grant DoubleDutch a perpetual, worldwide, royalty-free, and nonexclusive, sub-licenseable right to: (i) use, reproduce, modify, and adapt all End User Data in connection with the Services and distribution and use of any App; and, (ii) use aggregate, non-personal End User Data to improve our Services, Apps, develop new products, and launch services for other purposes.

    10.8 End User License Agreement and Privacy Policies. You covenant, represent, and warrant that You: (i) will only distribute the App subject to a binding EULA between You and Your End Users in the respective App Store (Apple® App Store℠ and the Google Play™) that contains an express license and such other terms necessary for You to obtain End User Data that DoubleDutch can use pursuant to this Section 10 and that disclaims all liability on behalf of DoubleDutch and its suppliers for such use of the End User Data; and (ii) You will publish and display a legally-compliant privacy policy, either Yours or from the appropriate App Store (collectively, the “End User Privacy Policy”) applicable to all End Users’ use of the Apps and such Privacy Policy shall disclose and describe Your collection, licensing and DoubleDutch’s use of End User Data in accordance with this Section 10. You shall be responsible for compliance with the End User Privacy Policy and all applicable laws in connection with its distribution and use of the App.

    10.9 Removal of End User Data from DoubleDutch’s Database. To the extent the End User Privacy Policy permits an End User to request removal of their End User Data from the Services or the App, DoubleDutch will comply with a written request from You to do so. Upon such a written request from You, DoubleDutch’s license to such End User Data shall terminate. Notwithstanding the foregoing, for the avoidance of doubt, End User Data that You request DoubleDutch remove pursuant to this Section 10.9 shall not include, and DoubleDutch may collect, retain, own and use all data related to usage of the Services and all Apps, including usage statistics, which may include non-personal End User Data in aggregate form.

  11. Confidentiality

    11.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Apps and all enhancements and improvements in the foregoing, and technical and functional information of the Services will be considered Confidential Information of DoubleDutch.

    11.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section will not apply to any information that (i) becomes generally available to the public through no fault of the Receiving Party, (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations, (iii) was already known to the Receiving Party at the time of disclosure, or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who did not use the Confidential Information.

    11.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  12. Representations and Warranties; Disclaimer

    12.1 By Both Parties. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

    12.2 Disclaimer. THE APPS, PROFESSIONAL SERVICES, AND THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND DOUBLEDUTCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE APPS AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES AND SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DOUBLEDUTCH DOES NOT WARRANT THAT USE OF THE APPS WILL BE ERROR-FREE OR UNINTERRUPTED.

  13. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO ANY app, PROFESSIONAL SERVICES, OR the services. EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, EACH PARTY’s TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH thIS AGREEMENT, ANY app, PROFESSIONAL SERVICES, AND/OR the services, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO DOUBLEDUTCH BY You UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL DOUBLEDUTCH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO this AGREEMENT.
  14. Indemnification

    14.1 By DoubleDutch. DoubleDutch will defend at its own expense any action against You brought by a third party to the extent that the action is based upon any claim that the Apps (excluding any Content, Marks, or any End User Data incorporated therein) infringe any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law and will pay those costs and damages finally awarded against You in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Notwithstanding the foregoing, DoubleDutch will have no obligation with respect to an infringement claim based upon (i) any use of the Apps (or any of its components) not in accordance with this Agreement, (ii) any use of the Apps (or any of its components) in combination with other products, equipment, software or data not supplied by DoubleDutch, or (iii) any modification of the Apps (or any of its components) by any person other than DoubleDutch and its authorized representatives (collectively, “Excluded Claims”). If any App becomes, or in DoubleDutch’s opinion is likely to become, the subject of an infringement claim, DoubleDutch may at its option, (a) procure for You the right to continue using the App, (b) replace or modify the infringing component(s) of the App so that it becomes non-infringing, or (c) terminate this Agreement and refund any fees actually paid by You to DoubleDutch as advance payment for delivery of Services for the remainder of the Order term then in effect. This Section 14.1 states Your sole and exclusive remedy and DoubleDutch’s entire liability for infringement claims and actions.

    14.2 By You. You will defend at Your expense any suit brought against DoubleDutch, and will pay any settlement You make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party resulting from or relating to (i) any actions or omissions on Your part in marketing or distributing the Apps, (ii) any representations, warranties, or guarantees made or published by You, or (iii) the Excluded Claims. This Section 14.2 states the sole and exclusive remedy of DoubleDutch and Your entire liability for the claims and actions described herein.

    14.3 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, the indemnitee giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.

  15. Miscellaneous

    15.1 Notice. Notices to You will be sent to the address You provide on the Order. Notices to DoubleDutch must be sent to the mailing address set forth below. Each party has the right to change its address for notice by providing the other party at least ten (10) days’ prior, written notice. Address for notice to DoubleDutch: DoubleDutch, Inc., 2601 Mission Street, Suite 800, San Francisco, California 94110, Attention: Legal Department.

    15.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agreed in writing.

    15.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.

    15.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.

    15.5 Modifications and Amendments. DoubleDutch may at any time, with or without notice, revise the portion of the Agreement consisting of these terms and conditions of service by providing written notice to You or by prominently posting an update to this online document on the DoubleDutch website. For purposes of this Section 15.5, You acknowledge and agree that notice to You may be provided by email to the email address set out in the Order. For existing users, any changes to these terms and conditions of service will be effective upon the earlier of thirty (30) calendar days following our dispatch of notice to You or thirty (30) calendar days following posting of notice of the changes on the website. For new users, the changes will be effective immediately. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following notice or posting of changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. All other modifications or amendments to this Agreement must be made in a writing signed by both parties in order to be effective.

    15.6 Publicity. You shall serve as a reference for relevant press opportunities reasonably requested by DoubleDutch, and DoubleDutch shall have the right to use and reference Your name and Marks in a press release, case study, website, blog post or social media outlet.

    15.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.

    15.8 Entire Agreement. This Agreement, together with the applicable Order, constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement.

    15.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.

    15.10 Remedies. You acknowledge that the Apps contain valuable trade secrets and proprietary information of DoubleDutch, that any actual or threatened breach of Sections 10 or 11 will constitute immediate, irreparable harm to DoubleDutch for which monetary damages would be an inadequate remedy. In such case, DoubleDutch will be entitled to immediate injunctive relief without the requirement of posting bond.

    15.11 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, except that either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.

    15.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

    15.13 Governing Law. This Agreement is governed by and interpreted in accordance with the laws of the State of California, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of San Francisco County, California or the Northern District of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.

Terms of Service 11-20-2014

  1. Defined Terms

    “Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.

    “Agreement” means, collectively, these Terms and an applicable Order.

    “App” means each DoubleDutch proprietary mobile, tablet, and web-based application, identified in an Order.

    “Content” means all of the event-specific data, materials information, and other content, whether copyrighted or not, originated by You and delivered to DoubleDutch that is required for the App to operate properly in connection with the Professional Services and the Services.

    “CMS” means DoubleDutch’s Content Management System and portal described below.

    “End User” means an individual who downloads or otherwise accesses an App for that individual’s own personal use and not for resale or distribution to any other person or entity.

    “EULA” means and End User License Agreement entered into by You and Your End Users.

    “Event” means a conference or other gathering or event organized and produced by You.

    “Marks” means each of Your trademarks, service marks, and logos that are delivered or made available to DoubleDutch for use in connection with the Agreement.

    “Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in the App through the CMS that must meet the specifications provided to you by DoubleDutch.

    “Order” means an Order Form that references these Terms and is signed by DoubleDutch and You.

    “Professional Services” means any consulting, on-site support, or similar professional services to be performed by DoubleDutch, as identified in an Order.

    “Services” means, individually or collectively as the case may be and as defined in an Order, DoubleDutch’s performance and delivery to You of: (i) a one-year (1) license, whether Basic, Premium, Enterprise or Ultimate, enabling You to access for one (1) event DoubleDutch’s website(s) and software (including the App and CMS); (ii) hosting of the App and website(s); and (iii) assistance with use of CMS, App distribution assistance, technical support, and related services commensurate with the package (e.g., Basic, Premium, Enterprise or Ultimate) specified in an Order.

    “Package” means the Basic, Premium, Enterprise or Ultimate Level Services specified in an Order and fully described on DoubleDutch’s website at doubledutch.me/service-11-14.html

    “Term” means the Contract State Date and Contract End Date specified in Your Order.

  2. General

    DoubleDutch shall not be obligated to deliver any App, perform any Professional Services, or make any Services available to You until both parties execute the applicable Order. In the event of conflict between these Terms and an Order, these Terms shall prevail.

  3. Event Information and Content

    3.1 Content Management System. As a part of the Services, DoubleDutch will provide You with access credentials, during the term of the Order, to an online portal hosted by DoubleDutch (“Content Management System” or “CMS”) through which You will: (i) be responsible for uploading conference/event information and other Content for Your Event; (ii) be able to manage push notifications to Event attendees; and (iii) access attendee data and analytics.

    3.2 Your Responsibility. It is Your responsibility to provide DoubleDutch with all required Content, including, without limit, Media Assets, through the Content Management System required for the App to operate properly. You must deliver all necessary Content for an Event no later than twenty (20) business days prior to the start date of the Event in order for the Services and App to be available to End Users in a timely manner; in the event You fail to do so, DoubleDutch cannot ensure the Services will be available or function fully.

    3.3 Unauthorized Use. You are responsible for maintaining the confidentiality of all usernames and passwords issued to You and are solely responsible for all activities that occur under these usernames.

    3.4 CMS Assistance. DoubleDutch will provide You CMS assistance and support commensurate with the Package specified in Your Order to finalize the onboarding of Your Event Content into the App.

  4. Apps

    4.1 App Features. End Users will have access to Event-specific features commensurate with Your Package specified in Your Order and as described in the DoubleDutch features list at doubledutch.me/features-11-14.html. End Users can access the Services through the Apps.

  5. App Store Distribution

    5.1 Distribution. DoubleDutch will be responsible for producing mobile-based Apps available through the Apple® App Store℠, the Google Play™ app store, or other mobile application stores identified in Your Order (each, an “App Store”). DoubleDutch will use commercially reasonable efforts to make the App available, and cause it to be distributed to End Users, through the applicable App Store, in accordance with DoubleDutch’s end user agreement and/or privacy policy.

    5.2 Suspension. DoubleDutch shall have the right to suspend or discontinue the distribution of any App in the event DoubleDutch determines, in its sole and absolute discretion, that such distribution or use may result in harm, damage, or liability for DoubleDutch or the App is being distributed or used in violation of these Terms.

  6. Services

    6.1 Hosting Services. Provided You have delivered all Event Content through the Content Management System pursuant to these Terms, DoubleDutch will host and make available such Content together with the App for access and use by End Users in accordance with the Package specified in Your Order.

    6.2 Access. Upon complete execution of an Order, DoubleDutch will provide You and Your End Users a one (1) year license to access the Professional Services and Services in accordance with the Package specified in Your Order.

    6.3 Support. DoubleDutch will provide technical support to You and Your End Users for the Content Management System commensurate with the Package specified in Your Order. Technical support will be provided to one or more of Your employees identified as the “Dashboard Administrator Users” in Your Order and directly to Your End Users.

    6.4 Support Center. Support is provided in accordance with the DoubleDutch Service Level Agreement. All Support related items should be sent to: support@doubledutch.me.

    6.5 Access Guarantee.. You will have access to the App no less than 95% of the time, twenty-four (24) hours per day, seven (7) days per week, during Term of Your Order. “App Downtime” means any single occurrence or series of occurrences within any given calendar month in which Company’s access to the App falls short of the foregoing performance metric.

    6.6 Remedy. In the event App Downtime exceeds the permissible limit specified above, Your sole and exclusive remedy, subject to the conditions and limitations in this Agreement, shall be a credit calculated as follows:

    Accessibility of App during Order duration Credit
    95% or greater but <98% 10% of total fees
    90% or greater but <95% 25% of total fees
    85% or greater but <90% 50% of total fees
    Less than 85% 100% of total fees

    DoubleDutch will apply Your credit, if any on Your next invoice. If the App Downtime occurs following mailing of any invoice, DoubleDutch will remit a check to You for the amount of the credit within thirty (30) days after Your request for a credit.

  7. Professional Services.

    Upon complete execution of an Order, DoubleDutch will provide You Professional Services commensurate with the Package specified in Your Order and shall do so in a professional and workmanlike manner.

  8. Fees

    8.1 Fees and Expenses. By signing the Order, You agree to pay DoubleDutch the fees for the Services in accordance with the payment terms and frequency specified in Your Order. Unless otherwise specified, all payments are due and payable in USD Net 30 days or prior to the deployment date of the first event app, whichever comes first. All payment obligations are non-cancelable during the Term of Your Order and fees paid are non-refundable.

    8.2 Upgrades/Level Of Service Changes. At any time, You can upgrade Your Services to a higher Package tier by executing an Upgrade Order. The costs and charges for the Upgrade shall be specified in the Upgrade Order. During the Term of Your Order, You cannot downgrade from Your current Package tier to a lower Package tier. At the end of the Term of Your Order, you can renew at any tier.

    8.3 Payment Terms. Invoices are due and payable in full in USD within thirty (30) days after date of invoice (Net 30). Unpaid fees accrue interest at two percent (2%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid in full. In addition, DoubleDutch will have the right to withhold performance of Professional Services and/or terminate and/or suspend access to the Services if amounts due are not paid within in payment terms or at least 2 business days prior to the first event deployment date.

    8.4 Early Payment Discount. DoubleDutch will give You a two percent (2%) discount for invoices paid in full within ten (10) days of the invoice date and will give You a one percent (1%) discount for invoices paid in full within 30 days of the invoice date.

    8.5 Taxes. All fees and payments under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, including, without limitation, any export, federal, state or local VAT, sales, use or goods and services taxes and business taxes, customs or excise duties (collectively, “Taxes”). You will be responsible for payment of all Taxes. You will make all payments of fees to DoubleDutch free and clear of, and without reduction for, any withholding Taxes; any such Taxes will be Your sole responsibility, and You will provide DoubleDutch with official receipts issued by the appropriate taxing authority, or such other evidence as DoubleDutch may reasonably request, to establish that such Taxes have been paid.

  9. Term and Termination

    9.1 Term. Unless sooner terminated as permitted herein, the Agreement shall commence and expire on the dates identified in Your Order.

    9.2 Termination. The Agreement may only be terminated “for cause”, which is defined to mean either party’s uncured material breach of the terms and conditions of the Agreement that continues for more than thirty (30) days after receipt of written notice specifically stating the nature of such breach; provided, however, for a breach that cannot be cured within thirty (30) days, the Agreement cannot be terminated if the allegedly breaching party commences and diligently pursues cure within that time period. Upon termination or expiration of this Agreement for any reason, all rights and obligations of both parties, including all licenses granted hereunder (except the licenses described in Section 10.8), shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 11.1.

    9.3 Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 2, 3.3, 8, 9.3, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, 11, 12, 13, 14, and 15. Rights under any then-in-effect EULA shall survive expiration or termination of this Agreement in accordance with their terms.

  10. Intellectual Property Licenses and Ownership

    10.1 CMS License. DoubleDutch shall own and retain all right title and interest in and to the CMS and DoubleDutch hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, worldwide, non-exclusive, non-transferable (except as set forth in Section 15.11), fully paid, royalty-free, non-assessable license during the Term of Your Agreement to access and use the CMS solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Services.

    10.2 Restrictions on Use. You shall not, and shall not permit any third party to: (i) reproduce, modify, adapt, alter, translate or create derivative works from the CMS and/or any App; (ii) merge the CMS and/or any App with any other software; (iii) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the CMS and/or any App; or (iv) distribute, sublicense, lease, rent, loan, or otherwise transfer the CMS and/or any App to any third party except as expressly allowed under this Agreement. You must not remove, alter, or obscure in any way any proprietary notices of DoubleDutch or its suppliers on or within any copies of the CMS and/or any App.

    10.3 Materials Provided by DoubleDutch. The Services, CMS, and Apps and any other work product resulting from the Services and/or the Professional Services, including, without limit, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, and other intellectual property, together with any revisions, additions and refinements and derivative works thereof, all of which have been and will continue to be independently developed, whether within or outside of the scope of the Services, which may or may not be included in a portion of the Services or Professional Services, but excluding all Content and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “DoubleDutch IP”), are the exclusive property of DoubleDutch. For avoidance of doubt, any copyrightable subject matter developed by DoubleDutch during the Term of this Agreement is not a work made for hire and shall be owned directly by DoubleDutch. All licenses granted by DoubleDutch to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any DoubleDutch IP.

    10.4 Assignment of Rights. If You obtain any ownership rights in or to any DoubleDutch IP or any other work product resulting from DoubleDutch’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to DoubleDutch; (ii) waive any enforcement of any such ownership rights You may have against DoubleDutch; (iii) grant DoubleDutch an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and iv) covenant and agree that in the event any moral rights exist that cannot be assigned to DoubleDutch, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with DoubleDutch’s economic exploitation of such material or which might inhibit DoubleDutch from modifying the material in any manner in which DoubleDutch sees fit.

    10.5 License to Your Content. You hereby grant DoubleDutch a worldwide, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify all Content and Marks, solely as follows: (i) in connection with the performance of Services and Professional Services; (ii) for creation of, or incorporation of materials into, the CMS and any App; and (iii) in connection with marketing activities as requested by You in the Order.

    10.6 Your Right to License Content/Indemnification. You represent and warrant that all Content is correct and current, is owned by You or You have the right to grant the license set forth above in this Agreement, and that provision and/or use of such Content hereunder shall not violate or infringe the intellectual property, privacy, or publicity rights of any third party, and that all placements of Content have been approved for DoubleDutch’s use. You shall indemnify and hold DoubleDutch harmless for any liability or damages of any kind, including DoubleDutch’s attorney’s fees, resulting from any defects in Your right to transfer ownership of the Content to DoubleDutch. DoubleDutch shall notify You promptly in writing of the same and shall give You the right and option to control the defense and settlement thereof and reasonable assistance therein. DoubleDutch shall be entitled to participate in any such defense at DoubleDutch’s expense.

    10.7 License to End User Data. You grant DoubleDutch a perpetual, worldwide, royalty-free, and nonexclusive sub-licenseable right to use, reproduce, modify, and adapt all data and information provided by End Users in connection with the App and/or collected by DoubleDutch or by You from End Users in connection with the distribution and use of any App (collectively, “End User Data”) to the extent of Your rights in such data.

    10.8 Your Right to License End User Data. You covenant, represent, and warrant that You: (i) will only distribute the App subject to a binding EULA in the respective App Store (Apple® App Store℠ and the Google Play™)with with the End User that contains an express license and such other terms as are necessary for DoubleDutch to exercise its rights as set forth in Section 10.8 and that disclaims all liability on behalf of DoubleDutch and its suppliers; and (ii) will publish and display a legally-compliant privacy policy (a “Privacy Policy”) applicable to all End Users’ use of the Apps and such Privacy Policy shall disclose and describe DoubleDutch’s and Your collection and use of End User Data in accordance with this Section 10. You shall be responsible for compliance with the Privacy Policy and all applicable laws in connection with its distribution and use of the Apps.

    10.9 End User Data. Except for the license rights granted to DoubleDutch and/or You described in this Section 10, all End User Data is owned by the applicable End User, and can be removed from the DoubleDutch database upon written request from such End User. DoubleDutch’s license to such End User Data will terminate at the time End User requests to remove such End User Data from DoubleDutch’s database. For the avoidance of doubt, End User Data shall not include, and DoubleDutch shall have the right to collect and shall own and retain all rights in and to, data related to usage of the Services and all Apps, including usage statistics, which may include End User data in aggregate form.

  11. Confidentiality

    11.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Apps and all enhancements and improvements in the foregoing, and technical and functional information of the Services will be considered DoubleDutch’s Confidential Information.

    11.2 Protection of Confidential Information. The Receiving Party agrees that it shall not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files consistent with that party’s records retention/destruction policy) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section shall not apply to any information that: (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who did not use the Confidential Information.

    11.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  12. Representations and Warranties; Disclaimer

    12.1 Disclaimer. THE APPS, PROFESSIONAL SERVICES, AND THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND DOUBLEDUTCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE APPS AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES AND SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DOUBLEDUTCH DOES NOT WARRANT THAT USE OF THE APPS WILL BE ERROR-FREE OR UNINTERRUPTED.

  13. Limitation of Liability

    13.1 EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO ANY APP, PROFESSIONAL SERVICES, OR THE SERVICES. EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, EACH PARTY’s TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, ANY APP, PROFESSIONAL SERVICES, AND/OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO DOUBLEDUTCH BY YOU UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT SHALL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL DOUBLEDUTCH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

  14. Indemnification

    14.1 By DoubleDutch. Each party shall defend, indemnify, and hold harmless the other party and its agents, affiliates, and employees, from any and all claims, demands, damages, costs, expenses (including reasonable attorneys’ fees), judgments or liabilities: (i) arising out of the indemnifying party’s negligence, willful misconduct, or breach of representations or warranties in this Agreement; or (ii) to the extent the indemnifying party’s Content, Marks, Media Assets, information, deliverables, or products infringe any existing US trademark, copyright or patent, or misappropriate any trade secret of any third party. Notwithstanding the foregoing, DoubleDutch shall have no obligation with respect to an infringement claim based upon: (i) any use of the Apps (or any of its components) not in accordance with this Agreement; (ii) any use of the Apps (or any of its components) in combination with other products, equipment, software or data not supplied by DoubleDutch; or (iii) any modification of the Apps (or any of its components) by any person other than DoubleDutch and its authorized representatives (collectively, “Excluded Claims”). If any App becomes, or in DoubleDutch’s opinion is likely to become, the subject of an infringement claim, DoubleDutch may at its option: (i) procure for You the right to continue using the App; (ii) replace or modify the infringing component(s) of the App so that it becomes non-infringing, or (iii) terminate this Agreement and refund any fees actually paid by You to DoubleDutch as advance payment for delivery of Services for the remainder of the Order Term then in effect. This Section 14.1 states Your sole and exclusive remedy and DoubleDutch’s entire liability for infringement claims and actions.

    14.2 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, claim or issue giving rise to the indemnification obligations hereunder, the indemnitee giving the indemnifying party sole control of the defense thereof (unless otherwise reserved herein) and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.

  15. Miscellaneous

    15.1 Notice. Notices and Invoices to You will be sent to the address(es) You provide on the Order. Notices to DoubleDutch must be sent to DoubleDutch, Inc., 2601 Mission Street, Suite 800, San Francisco, California 94110, Attention: Legal Department. Either party may change its address for notice by providing the other party at least ten (10) days’ prior written notice of the changed address. Invoices shall not be considered late or unsent should You change your address or failed to provide correct contact information.

    15.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. This Agreement does not create a relationship of agency, partnership, joint venture or licensee. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agree in writing.

    15.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.

    15.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.

    15.5 Modifications and Amendments. Revisions, modifications, and/or amendments to any portion of these mutually agreed upon Terms must be made in a writing and agreed upon in writing to be effective. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, you will notify DoubleDutch immediately. Continued use of the Services following mutually agreed to changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

    15.6 Publicity. Unless requested by written notice otherwise, You agree to serve as a reference for relevant press opportunities reasonably requested by DoubleDutch, and DoubleDutch may have the right to use and reference Your name and Marks in a press release, case study, website, blog post or social media outlet.

    15.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.

    15.8 Entire Agreement. This Agreement, together with the applicable Order, constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement.

    15.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.

    15.10 Remedies. You acknowledge that the Apps contain valuable trade secrets and proprietary information of DoubleDutch, that any actual or threatened breach of Sections 10 or 11 shall constitute immediate, irreparable harm to DoubleDutch for which monetary damages alone would be an inadequate remedy, and as such, DoubleDutch shall be entitled to immediate injunctive relief without the requirement of posting a bond.

    15.11 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, which may be unreasonably withheld; provided, however, either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.

    15.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

    15.13 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of San Francisco County, California or the Northern District of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.

Version 11.20.2014
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Terms of Service 8-1-2014

  1. Defined Terms

    “Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.

    “Agreement” means, collectively, these Terms and an applicable Order.

    “App” means each DoubleDutch proprietary mobile, tablet, and web-based application, identified in an Order.

    “Content” means all of the event-specific data, materials information, and other content, whether copyrighted or not, originated by You and delivered to DoubleDutch that is required for the App to operate properly in connection with the Professional Services and the Services.

    “CMS” means DoubleDutch’s Content Management System and portal described below.

    “End User” means an individual who downloads or otherwise accesses an App for that individual’s own personal use and not for resale or distribution to any other person or entity.

    “EULA” means and End User License Agreement entered into by You and Your End Users.

    “Event” means a conference or other gathering or event organized and produced by You.

    “Marks” means each of Your trademarks, service marks, and logos that are delivered or made available to DoubleDutch for use in connection with the Agreement.

    “Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in the App through the CMS that must meet the specifications provided to you by DoubleDutch.

    “Order” means an Order Form that references these Terms and is signed by DoubleDutch and You.

    “Professional Services” means any consulting, on-site support, or similar professional services to be performed by DoubleDutch, as identified in an Order.

    “Services” means, individually or collectively as the case may be and as defined in an Order, DoubleDutch’s performance and delivery to You of: (i) a one-year (1) license, whether Basic, Premium, Enterprise or Ultimate, enabling You to access for one (1) event DoubleDutch’s website(s) and software (including the App and CMS); (ii) hosting of the App and website(s); and (iii) assistance with use of CMS, App distribution assistance, technical support, and related services commensurate with the Package (e.g., Basic, Premium, Enterprise or Ultimate) specified in an Order.

    “Package” means the Basic, Premium, Enterprise or Ultimate Level Services specified in an Order and fully described on DoubleDutch’s website at doubledutch.me/service-8-14.html

    “Term” means the Contract State Date and Contract End Date specified in Your Order.

  2. General

    DoubleDutch shall not be obligated to deliver any App, perform any Professional Services, or make any Services available to You until both parties execute the applicable Order. In the event of conflict between these Terms and an Order, these Terms shall prevail.

  3. Event Information and Content

    3.1 Content Management System. As a part of the Services, DoubleDutch will provide You with access credentials, during the term of the Order, to an online portal hosted by DoubleDutch (“Content Management System” or “CMS”) through which You will: (i) be responsible for uploading conference/event information and other Content for Your Event; (ii) be able to manage push notifications to Event attendees; and (iii) access attendee data and analytics.

    3.2 Your Responsibility. It is Your responsibility to provide DoubleDutch with all required Content, including, without limit, Media Assets, through the Content Management System required for the App to operate properly. You must deliver all necessary Content for an Event no later than twenty (20) business days prior to the start date of the Event in order for the Services and App to be available to End Users in a timely manner; in the event You fail to do so, DoubleDutch cannot ensure the Services will be available or function fully.

    3.3 Unauthorized Use. You are responsible for maintaining the confidentiality of all usernames and passwords issued to You and are solely responsible for all activities that occur under these usernames.

    3.4 CMS Assistance. DoubleDutch will provide You CMS assistance and support commensurate with the Package specified in Your Order to finalize the onboarding of Your Event Content into the App.

  4. Apps

    4.1 App Features. End Users will have access to Event-specific features commensurate with Your Package specified in Your Order and as described in the DoubleDutch features list at doubledutch.me/features-8-14.html. End Users can access the Services through the Apps.

  5. App Store Distribution

    5.1 Distribution. DoubleDutch will be responsible for producing mobile-based Apps available through the Apple® App Store℠, the Google Play™ app store, or other mobile application stores identified in Your Order (each, an “App Store”). DoubleDutch will use commercially reasonable efforts to make the App available, and cause it to be distributed to End Users, through the applicable App Store, in accordance with DoubleDutch’s end user agreement and/or privacy policy.

    5.2 Suspension. DoubleDutch shall have the right to suspend or discontinue the distribution of any App in the event DoubleDutch determines, in its sole and absolute discretion, that such distribution or use may result in harm, damage, or liability for DoubleDutch or the App is being distributed or used in violation of these Terms.

  6. Services

    6.1 Hosting Services. Provided You have delivered all Event Content through the Content Management System pursuant to these Terms, DoubleDutch will host and make available such Content together with the App for access and use by End Users in accordance with the Package specified in Your Order.

    6.2 Access. Upon complete execution of an Order, DoubleDutch will provide You and Your End Users a one (1) year license to access the Professional Services and Services in accordance with the Package specified in Your Order.

    6.3 Support. DoubleDutch will provide technical support to You and Your End Users for the Content Management System commensurate with the Package specified in Your Order. Technical support will be provided to one or more of Your employees identified as the “Dashboard Administrator Users” in Your Order and directly to Your End Users.

    6.4 Support Center. Support is provided in accordance with the DoubleDutch Service Level Agreement. All Support related items should be sent to: support@doubledutch.me.

    6.5 Access Guarantee. You will have access to the App no less than 95% of the time, twenty-four (24) hours per day, seven (7) days per week, during Term of Your Order. “App Downtime” means any single occurrence or series of occurrences within any given calendar month in which Company’s access to the App falls short of the foregoing performance metric.

    6.6 Remedy. In the event App Downtime exceeds the permissible limit specified above, Your sole and exclusive remedy, subject to the conditions and limitations in this Agreement, shall be a credit calculated as follows:

    Accessibility of App during Order duration Credit
    95% or greater but <98% 10% of total fees
    90% or greater but <95% 25% of total fees
    85% or greater but <90% 50% of total fees
    Less than 85% 100% of total fees

    DoubleDutch will apply Your credit, if any on Your next invoice. If the App Downtime occurs following mailing of any invoice, DoubleDutch will remit a check to You for the amount of the credit within thirty (30) days after Your request for a credit.

  7. Professional Services.

    Upon complete execution of an Order, DoubleDutch will provide You Professional Services commensurate with the Package specified in Your Order and shall do so in a professional and workmanlike manner.

  8. Fees

    8.1 Fees and Expenses. You shall pay DoubleDutch the fees for the Services provided over the term of the subscription and for the Professional Services, in each case as described in the Order.

    8.2 Changes. You can upgrade Your Services to a higher tier at any time by executing a new Order. However, You cannot downgrade to a lower tier during the relevant subscription term. All payment obligations are non-cancelable and fees paid are non-refundable.

    8.3 Payment Terms. Undisputed invoices are due within thirty (30) days after date of invoice. Any portion of the fees that is not paid when due will accrue interest at 2% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In addition, DoubleDutch will have the right to withhold performance of Professional Services and/or terminate and/or suspend access to the Services if amounts due are not paid within thirty (30) days after notice of late payment.

    8.4 Early Payment Discount. DoubleDutch will give You a two percent (2%) discount for invoices paid in full within ten (10) days of the invoice date and will give You a one percent (1%) discount for invoices paid in full within 30 days of the invoice date.

    8.5 Taxes. The fees exclude all applicable sales, use, and other taxes (other than taxes on DoubleDutch’s income), duties, charges, and related fees and penalties in each case arising from any payments to be made to DoubleDutch under this Agreement and/or performance hereunder (collectively, “Taxes”), and You will be responsible for payment of all Taxes. You will make all payments of fees to DoubleDutch free and clear of, and without reduction for, any withholding taxes; any such taxes will be Your sole responsibility, and You will provide DoubleDutch with official receipts issued by the appropriate taxing authority, or such other evidence as DoubleDutch may reasonably request, to establish that such taxes have been paid.

  9. Term and Termination

    9.1 Term. Unless sooner terminated as permitted herein, this Agreement shall commence and expire on the dates as identified in the Order. Following expiration, the Order will renew under the same terms unless You provide timely notice of non-renewal as specified in the Order or enter into a new Order that expressly replaces and supersedes the then-existing Order.

    9.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than thirty (30) days after receipt of written notice of such breach. Upon termination or expiration of this Agreement for any reason, all rights and obligations of both parties, including all licenses granted hereunder (except the licenses described in Section 10.8), shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 11.1.

    9.3 Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 2, 3.3, 5.3, 5.6, 8, 9.3, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, 11, 12, 13, 14, and 15. Rights under any then-in-effect EULA shall survive expiration or termination of this Agreement in accordance with their terms.

  10. Intellectual Property Licenses and Ownership

    10.1 CMS License. DoubleDutch shall own and retain all right title and interest in and to the CMS and DoubleDutch hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, worldwide, non-exclusive, non-transferable (except as set forth in Section 15.11), fully paid, royalty-free, non-assessable license during the Term of Your Agreement to access and use the CMS solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Services.

    10.2 App Distribution License. If You are responsible for distributing the App, DoubleDutch shall own and retain all right title and interest in and to the App, and DoubleDutch hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, worldwide, non-exclusive, non-transferable (except as set forth in Section 15.11), fully paid, royalty-free, non-assessable license during the Term of Your Agreement to distribute the Apps, solely through the App Store to End Users who are using the Apps for personal use and not for further resale or distribution.

    10.3 Restrictions on Use. You shall not, and shall not permit any third party to: (i) reproduce, modify, adapt, alter, translate or create derivative works from the CMS and/or any App; (ii) merge the CMS and/or any App with any other software; (iii) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the CMS and/or any App; or (iv) distribute, sublicense, lease, rent, loan, or otherwise transfer the CMS and/or any App to any third party except as expressly allowed under this Agreement. You must not remove, alter, or obscure in any way any proprietary notices of DoubleDutch or its suppliers on or within any copies of the CMS and/or any App.

    10.4 Materials Provided by DoubleDutch. The Services, CMS, and Apps and any other work product resulting from the Services and/or the Professional Services, including, without limit, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, and other intellectual property, together with any revisions, additions and refinements and derivative works thereof, all of which have been and will continue to be independently developed, whether within or outside of the scope of the Services, which may or may not be included in a portion of the Services or Professional Services, but excluding all Content and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “DoubleDutch IP”), are the exclusive property of DoubleDutch. For avoidance of doubt, any copyrightable subject matter developed by DoubleDutch during the Term of this Agreement is not a work made for hire and shall be owned directly by DoubleDutch. All licenses granted by DoubleDutch to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any DoubleDutch IP.

    10.5 Assignment of Rights. If You obtain any ownership rights in or to any DoubleDutch IP or any other work product resulting from DoubleDutch’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to DoubleDutch; (ii) waive any enforcement of any such ownership rights You may have against DoubleDutch; (iii) grant DoubleDutch an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and iv) covenant and agree that in the event any moral rights exist that cannot be assigned to DoubleDutch, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with DoubleDutch’s economic exploitation of such material or which might inhibit DoubleDutch from modifying the material in any manner in which DoubleDutch sees fit.

    10.6 License to Your Content. You hereby grant DoubleDutch a worldwide, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify all Content and Marks, solely as follows: (i) in connection with the performance of Services and Professional Services; (ii) for creation of, or incorporation of materials into, the CMS and any App; and (iii) in connection with marketing activities as requested by You in the Order.

    10.7 Your Right to License Content/Indemnification. You represent and warrant that all Content is correct and current, is owned by You or You have the right to grant the license set forth above in this Agreement, and that provision and/or use of such Content hereunder shall not violate or infringe the intellectual property, privacy, or publicity rights of any third party, and that all placements of Content have been approved for DoubleDutch’s use. You shall indemnify and hold DoubleDutch harmless for any liability or damages of any kind, including DoubleDutch’s attorney’s fees, resulting from any defects in Your right to transfer ownership of the Content to DoubleDutch. DoubleDutch shall notify You promptly in writing of the same and shall give You the right and option to control the defense and settlement thereof and reasonable assistance therein. DoubleDutch shall be entitled to participate in any such defense at DoubleDutch’s expense.

    10.8 License to End User Data. You grant DoubleDutch a perpetual, worldwide, royalty-free, and nonexclusive sub-licenseable right to use, reproduce, modify, and adapt all data and information provided by End Users in connection with the App and/or collected by DoubleDutch or by You from End Users in connection with the distribution and use of any App (collectively, “End User Data”) to the extent of Your rights in such data.

    10.9 Your Right to License End User Data. You covenant, represent, and warrant that You: (i) will only distribute the App subject to a binding EULA with the End User that contains an express license and such other terms as are necessary for DoubleDutch to exercise its rights as set forth in Section 10.8 and that disclaims all liability on behalf of DoubleDutch and its suppliers; and (ii) will publish and display a legally-compliant privacy policy (a “Privacy Policy”) applicable to all End Users’ use of the Apps and such Privacy Policy shall disclose and describe DoubleDutch’s and Your collection and use of End User Data in accordance with this Section 10. You shall be responsible for compliance with the Privacy Policy and all applicable laws in connection with its distribution and use of the Apps.

    10.10 End User Data. Except for the license rights granted to DoubleDutch and/or You described in this Section 10, all End User Data is owned by the applicable End User, and can be removed from the DoubleDutch database upon written request from such End User. DoubleDutch’s license to such End User Data will terminate at the time End User requests to remove such End User Data from DoubleDutch’s database. For the avoidance of doubt, End User Data shall not include, and DoubleDutch shall have the right to collect and shall own and retain all rights in and to, data related to usage of the Services and all Apps, including usage statistics, which may include End User data in aggregate form.

  11. Confidentiality

    11.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Apps and all enhancements and improvements in the foregoing, and technical and functional information of the Services will be considered DoubleDutch’s Confidential Information.

    11.2 Protection of Confidential Information. The Receiving Party agrees that it shall not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files consistent with that party’s records retention/destruction policy) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section shall not apply to any information that: (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who did not use the Confidential Information.

    11.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  12. Representations and Warranties; Disclaimer

    12.1 Disclaimer. THE APPS, PROFESSIONAL SERVICES, AND THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND DOUBLEDUTCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE APPS AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES AND SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DOUBLEDUTCH DOES NOT WARRANT THAT USE OF THE APPS WILL BE ERROR-FREE OR UNINTERRUPTED.

  13. Limitation of Liability

    EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO ANY APP, PROFESSIONAL SERVICES, OR THE SERVICES. EXCEPT FOR A BREACH OF SECTION 11, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, EACH PARTY’s TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, ANY APP, PROFESSIONAL SERVICES, AND/OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO DOUBLEDUTCH BY YOU UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT SHALL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL DOUBLEDUTCH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

  14. Indemnification

    14.1 By DoubleDutch. DoubleDutch will defend at its own expense any action against You brought by a third party to the extent that the action is based upon any claim that the Apps (excluding any Content, Marks, or any End User Data incorporated therein) infringe any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law and will pay those costs and damages finally awarded against You in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Notwithstanding the foregoing, DoubleDutch will have no obligation with respect to an infringement claim based upon (i) any use of the Apps (or any of its components) not in accordance with this Agreement, (ii) any use of the Apps (or any of its components) in combination with other products, equipment, software or data not supplied by DoubleDutch, or (iii) any modification of the Apps (or any of its components) by any person other than DoubleDutch and its authorized representatives (collectively, “Excluded Claims”). If any App becomes, or in DoubleDutch’s opinion is likely to become, the subject of an infringement claim, DoubleDutch may at its option, (a) procure for You the right to continue using the App, (b) replace or modify the infringing component(s) of the App so that it becomes non-infringing, or (c) terminate this Agreement and refund any fees actually paid by You to DoubleDutch as advance payment for delivery of Services for the remainder of the Order term then in effect. This Section 14.1 states Your sole and exclusive remedy and DoubleDutch’s entire liability for infringement claims and actions.

    14.2 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, claim or issue giving rise to the indemnification obligations hereunder, the indemnitee giving the indemnifying party sole control of the defense thereof (unless otherwise reserved herein) and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.

  15. Miscellaneous

    15.1 Notice. Notices and Invoices to You will be sent to the address(es) You provide on the Order. Notices to DoubleDutch must be sent to DoubleDutch, Inc., 2601 Mission Street, Suite 800, San Francisco, California 94110, Attention: Legal Department. Either party may change its address for notice by providing the other party at least ten (10) days’ prior written notice of the changed address. Invoices shall not be considered late or unsent should You change your address or failed to provide correct contact information.

    15.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. This Agreement does not create a relationship of agency, partnership, joint venture or licensee. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agree in writing.

    15.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.

    15.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.

    15.5 Modifications and Amendments. Revisions, modifications, and/or amendments to any portion of these mutually agreed upon Terms must be made in a writing and agreed upon in writing to be effective. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, you will notify DoubleDutch immediately. Continued use of the Services following mutually agreed to changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

    15.6 Publicity. You agree to serve as a reference for relevant press opportunities reasonably requested by DoubleDutch, and DoubleDutch may have the right to use and reference Your name and Marks in a press release, case study, website, blog post or social media outlet.

    15.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.

    15.8 Entire Agreement. This Agreement, together with the applicable Order, constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement.

    15.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.

    15.10 Remedies. You acknowledge that the Apps contain valuable trade secrets and proprietary information of DoubleDutch, that any actual or threatened breach of Sections 10 or 11 shall constitute immediate, irreparable harm to DoubleDutch for which monetary damages alone would be an inadequate remedy, and as such, DoubleDutch shall be entitled to immediate injunctive relief without the requirement of posting a bond.

    15.11 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, which may be unreasonably withheld; provided, however, either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.

    15.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

    15.13 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of San Francisco County, California or the Northern District of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.

Version 08.01.2014
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