Effective as of May 1st, 2020
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS YOUR PURCHASE AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM (WHETHER ONLINE OR OFFLINE), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT 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 AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on May 1st, 2020. It is effective between you and Easy Live, Inc. a Delaware corporation, and its parent, subsidiaries, and affiliate entities (collectively, “Easy Live”), as of the date of your accepting this Agreement.
“Affiliate” refers to any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
This Agreement constitutes the entire understanding of the parties with respect to the use of Services and supersedes all prior or contemporaneous agreements, understandings, representations, and warranties with respect to the use of Services. In the event of a conflict between this Agreement and the terms of the other documents comprising the Agreement, the terms in this Agreement shall control unless otherwise expressly set forth in the applicable document comprising the Agreement.
“Content” refers to any content that is uploaded, transmitted, or developed by you by using our Services, including Events and/or any Third-Party Content.
“Event(s)” refers to sporting events or other kinds of events that are produced by third parties for which the Platform may be utilized, subject to the terms of the applicable Order Form.
“Force Majeure Event” means any event or occurrence that prevents a party from performing its obligations under this Agreement, or delays the performance of such obligations due to causes beyond that party’s reasonable control, including, without limitation, acts of God, war, riot, terrorism, embargoes, union disputes and strikes, acts of civil or military authorities, fire, floods, earthquakes, or fuel crises, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance.
“Order Form” refers to an ordering document (the Enterprise Package Order Form as a part of the Enterprise Package Subscription Addendum) or online order (for the Easy Live Starter and Easy Live Pro Package subscription) specifying the Services to be provided hereunder that is entered into between you and Easy Live or any of our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that you or your Affiliate subscribed to and paid for in accordance with the Service Level Package you selected in your Order Form, as differentiated from the Services you received for free during the free trial.
“Platform” refers to the Easy Live video platform to which the Customer can connect to control the distribution of live images captured during Events accessed via www.easylive.io (the “Website”).
“Project” refers to the sessions managed under a registered account managed by the Customer. A customer’s account can manage multiple projects and sub-projects.
“Registered Account” refers to a Customer who completed the registration process by submitting the required information, such as your first and last name, email, phone number, and company name, and accepted the terms of this Agreement.
“Services” refers collectively to the proprietary software and hardware that has been developed, owned, and/or licensed by Easy Live to create layout and distribute video content through the Platform, Easy Live’s Services (including professional services), which use and/or incorporate the same, and any documentation (including user manuals and the like) that is provided by Easy Live hereunder.
If you register on our Website for a 14-day free trial (the “Free Trial”) and have a Registered Account, we will make our Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period or (b) the start date of any Purchased Services subscription order by you for such Service(s), or (c) the termination by us in our sole discretion. We may have additional terms and conditions appear on the trial registration web page, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
IF YOU DO NOT PURCHASE A SUBSCRIPTION FOR OUR SERVICES UPON THE EXPIRATION OF THE FREE TRIAL PERIOD, YOU ACKNOWLEDGE THAT YOU WILL NOT BE ABLE TO USE OUR SERVICES TO PERFORM THE FOLLOWING: TO SCHEDULE AND START AN EVENT OR TO CREATE ANY OTHER CONTENT AFTER THE FREE TRIAL PERIOD ENDED; PROVIDED HOWEVER, YOU MAY CONTINUE TO BE ABLE TO ACCESS TO YOUR REGISTERED ACCOUNT AND VIEW ANY EXISTING CONTENT CREATED DURING THE FREE TRIAL PERIOD.
NOTWITHSTANDING SECTION 8 (WARRANTIES, LIMITATION OF LIABILITY, AND INDEMNIFICATION), DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EASY LIVE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, EASY LIVE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, AND (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 WITH RESPECT TO LIMITATION OF LIABILITY, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EASY LIVE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD AND BREACH OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
Subject to your compliance with the terms and conditions of this Agreement, Easy Live shall grant you a revocable, non transferable, nonexclusive license to use the Services (the “License”) during the Free Trial period once you enter a Registered Account with us. This License shall continue and remain effective after the Free Trial period through the term of this Agreement or any renewal term you may specify in the Order Form if you subscribe to our Purchased Services prior to the expiration of your Free Trial period. The license is granted for the implementation and use of the Services only by the Customer who has a Registered Account with us, except as otherwise authorized in the Agreement.
License Restrictions: Except as otherwise permitted by this Agreement, the Customer shall not, and shall not directly or indirectly allow its employees, consultants, or any other third party to:
Easy Live shall use good-faith efforts to deliver the Services in accordance with the Services Level Package to which you subscribed as indicated in your Order Form.
Updates to the Services: Easy Live reserves the right, in its sole discretion, to manage, update, change, modify, suspend, discontinue, or upgrade part or all of the Services at any time to ensure optimum performance for all Customers or for any other purpose. Easy Live reserves the right to request a revision to pricing or payment terms as a condition of the Customer’s receipt of upgrades or new versions of the Services.
Easy Live shall, to the extent possible, inform the Customer within a reasonable time frame about the nature and the duration of any modification or upgrade, update, or other change made to the Services hereunder.
Use of Third Parties to Provide Services: Easy Live may utilize subcontractors or other third parties to provide the Services without first obtaining the Customer’s consent, provided that such subcontractors shall be bound to contractual terms no less protective of the Customer’s rights provided in these terms. For clarification, SAS Easy Live, an Affiliate of Easy Live, is expected to provide some or all of the Services.
Customer Account: Easy Live may utilize subcontractors or other third parties to provide the Services without first obtaining the Customer’s consent, provided that such subcontractors shall be bound to contractual terms no less protective of the Customer’s rights provided in these terms. For clarification, SAS Easy Live, an Affiliate of Easy Live, is expected to provide some or all of the Services.
In the event of loss, theft, or any unauthorized use of the Customer’s account credentials, the Customer must notify Easy Live immediately in writing, by email, or through its client interface by providing proof of identity. Once notification has been received, Easy Live will assign the Customer new account credentials. Pending the assignment of new account credentials, the Customer bears sole liability for the consequences of any use of its account. Easy Live shall not be liable for any illicit or fraudulent use of the Customer’s account.
Content Restrictions: To the extent the Customer adds, references, incorporates, or otherwise uses any third-party content (collectively, “Third Party Content”), including, without limitation, any image, video, or recording of an Event and/or any individual, in or in connection with its use of the Services, the Customer shall be solely responsible for, and shall indemnify and defend Easy Live in connection with, obtaining any necessary rights or permissions that are required for the use of such Third Party Content. Further, the Customer shall be solely responsible for, and shall indemnify and defend Easy Live in connection with, any violation of any terms, conditions, or agreements regarding the use of any Third Party Content in connection with the Services.
Further, for the avoidance of doubt, the Customer has the ability to incorporate advertising directly in videos, in the form of advertising banners or videos in the live or deferred content. The Customer is at liberty to sell the advertising space for which it has sole responsibility; provided that such advertising shall be deemed to be Third Party Content for the purposes of these terms.
Compliance With Instruction: The Customer agrees to comply with all Easy Live instructions relating to the use of the Services. Further, the Customer represents and warrants that the Customer shall at all times have an internet connection which satisfies the minimum requirements provided by Easy Live. The Customer acknowledges and expressly accepts that the good quality, capacity, and fluidity of its internet connection are required for Easy Live to deliver the Services, and Easy Live shall not be liable for any failure or inability to deliver the Services if such is a result of an insufficient internet connection.
Acceptable Use: The Customer warrants, represents, and agrees that the Services shall not be used in a manner, by the Customer or any third party authorized by the Customer, which:
Change Requests: Any request to terminate or modify an Agreement and/or any of the Customer’s information (change in payment method, change in the Customer’s address, its bank details, etc.) must be in writing and must include the Customer’s corporate name (if applicable), full names of contacts and authorized individuals, and usernames. Easy Live will not process any incomplete requests. Easy Live shall not be bound to any change request or modification of the Services unless it has agreed to the same in writing. To submit a change request described herein, the Customer shall write to us at firstname.lastname@example.org
Technical Support: Easy Live may provide technical support and assistance in accordance with the terms of the Agreement. Any issue or problem that the Customer may encounter with the Services must first be reported by email to Easy Live using the address provided. It is the sole responsibility of the Customer to take all action necessary to protect itself from any viruses going around on the internet, in particular by installing antivirus software and/or firewalls.
Easy Live owns, and shall at all times retain ownership of, the intellectual property rights in and to the Services, the Platform, the websites, all trademarks and copyrighted or copyrightable material furnished by Easy Live therein or thereon, and all upgrades, modifications, prior, current or future releases of the Services (collectively, “Easy Live IP”).
The Agreement does not transfer any intellectual property rights or any other rights to the Easy Live IP, or any software, source code, methods, development tools, documents, files, databases, data, general and/or specific programs thereof, which are the property of Easy Live or for which Easy Live has obtained a license and to which the Customer is given access under the Agreement.
Easy Live warrants to the Customer that the Easy Live IP does not infringe upon the rights of any third party.
The Customer owns, and shall at all times retain ownership of, the intellectual property rights in and to the Customer, the work product of the Customer, all trademarks and copyrighted or copyrightable material furnished by the Customer (collectively, “Customer IP”).
Pricing: The pricing for each of the three Services Level Packages is listed on our Pricing page. Easy Live reserves the right to modify its pricing terms at any time, with notice to and prior acceptance of the Customer as a condition of the effectiveness of any such changes.
Easy Live Standard, Silver, Gold and Platinum Support Packages: For the Customer who subscribes to the Easy Live Standard, Silver, Gold and Platinum support packages, you are required to pay your monthly or annual subscription fees at the beginning of each negotiated billing period immediately after submitting your online Order Form or otherwise negotiated with your easylive.io sales representative. We will process your payment method using the information you provided in the Order Form once we have received your authorization. We will notify you by emailing you prior to the expiration of your current subscription. If you don’t choose to cancel your subscription before the expiration of your current subscription, your subscription will be automatically renewed for another identical period of time, based on your initial subscription. In either such case of automatic renewal, we will charge your payment method for the renewal subscription fee using the payment information you provided in your last Order Form. It is your responsibility to notify us of any change to such payment information. If you do not wish to use the same payment method or information for making the payment for your renewal, you shall contact us and make the change. EASY LIVE MAY NOT BE HELD LIABLE FOR ANY DISRUPTION IN THE SUPPLY OF THE SERVICES IF THE CUSTOMER FAILS TO NOTIFY IT OF ANY CHANGE PURSUANT TO THE FOREGOING PRIOR TO THE OCCURRENCE THEREOF.
You will not receive any of our Services until you have fully paid your support package fees.
Easy Live Hourly Usage: For the Customer who subscribes to our Service, you will be charged for your Hourly Usage. The billing of the Hourly Usage starts when you are at stage “Testing” and/or “Publishing” in the studio and ends when you come back to the stage “Setting up” (if you were at the stage “Testing”) or by clicking the “end” button if you were at the stage “Publishing”.
You will not receive any of our Services until you have fully paid any existing balance.
Easy Live API, White Labelled and/or Reseller services: For the Customer who subscribes to our API, White labelled and/or Reseller Service, the support packages and hourly usage billing described above remain identical.
Tax: You are responsible for the payment of all applicable taxes in connection to your subscription of our Services; provided, however, that Easy Live reserves the right to collect and pay taxes to the relevant authorities when it, in its sole discretion, believes that applicable law requires it to do so.
Term and Termination: Unless otherwise provided in the Agreement, the term of the Agreement shall be one (1) month (for the monthly packages) or one (1) year (for the yearly packages) from the date of the Agreement, and the term shall automatically renew for additional, consecutive one (1) month (for the monthly packages) or one (1) year (for the yearly packages) renewal terms unless and until terminated in accordance with these terms or the terms of the Agreement. The Customer shall receive the right to use the Services upon receipt of payment for a period as set forth in the Agreement, which right shall be automatically renewable for the initial period.
Except as otherwise set forth in the Agreement, either party may terminate the Services by providing written notice to the other party, or by cancelling the subscription in their account, at any time prior to the end of the then-current term or any renewal term period, as the case may be.
Each of the parties will have the option to terminate this Agreement, without being required to indemnify the other party and without prejudice to any other actions against it, if the other party commits a material breach or repeated breaches of its obligations under this Agreement and if it remains uncured for fifteen (15) calendar days after the defaulting party receives a letter from the aggrieved party notifying it of the breach by registered letter.
The termination will take effect after the expiration of such a cure period.
Effect of Termination: In the event that the Agreement ends, for any reason whatsoever and at any time, including in the case of termination for breach, the Customer agrees to pay all outstanding amounts owed to Easy Live. The license granted to the Customer hereunder shall automatically terminate and the Customer shall no longer be able to use our Services to perform the following: to schedule and start an Event, or to create any other Content thereafter. Notwithstanding the foregoing, the Customer may still be able to access its Registered Account and to view its previously created Content after the termination or expiration of the Agreement.
Notwithstanding the foregoing, any and all obligations that arose prior to the effective date of termination, including, without limitation, payment obligations as well as any obligations of the parties which would reasonably be deemed to survive termination (including, without limitation, indemnification obligations), shall remain in effect following termination or expiration of this Agreement.
For the avoidance of doubt, Easy Live may continue to make reference to its business relationship with the customer for promotional purposes.
Return and Refunds: Easy Live will not make any refunds at any time for any reason.
THE CUSTOMER WARRANTS THAT IT IS AUTHORIZED TO ENTER INTO THE AGREEMENT WITH EASY LIVE AND THAT IT HAS ALL THE RIGHTS NECESSARY TO USE EASY LIVE TO CAPTURE AND BROADCAST EVENTS ON THE INTERNET, LIVE OR DEFERRED OR ON VIDEO-ON-DEMAND, UNRESTRICTED AND UNRESERVED, UNDER ITS SOLE RESPONSIBILITY.
THE CUSTOMER WARRANTS THAT IT HAS ALL OF THE RIGHTS REQUIRED RELATIVE TO THE EVENTS (IMAGE, MUSIC, REBROADCAST RIGHTS, AMONG OTHERS) FOR THE PERFORMANCE OF THE AGREEMENT AND EASY LIVE MAY NOT BE HELD LIABLE, AND SHALL BE FULLY INDEMNIFIED, WITH RESPECT TO THE SAME.
IN THIS REGARD, THE CUSTOMER WARRANTS THAT THE CAPTURE AND BROADCAST OF THE EVENTS AND THE INCORPORATION OF MESSAGES, IN PARTICULAR ADVERTISING, ON THE IMAGES OF THE EVENTS DOES NOT VIOLATE THE RIGHTS OF ANY THIRD PARTIES, AND IN PARTICULAR OF ANY PERSON (I) WHO HAS ANY PART OF RESPONSIBILITY IN THE ORGANIZATION OF THE EVENTS, (II) WHO HAS PARTICIPATED DIRECTLY OR INDIRECTLY IN AN EVENT, (III) WHO HAS RIGHTS TO ASSERT IN RESPECT OF THE EVENT, (IV) WHO OWNS A DISTINGUISHING FEATURE OR AN INTELLECTUAL PROPERTY RIGHT.
THE CUSTOMER FURTHER WARRANTS THAT IT WILL COMPLY WITH ALL APPLICABLE LAWS AT ALL TIMES. WITHOUT LIMITING THE FOREGOING, THE CUSTOMER WARRANTS THAT THE EVENTS SHALL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS AND THAT THEIR BROADCAST IN CONNECTION WITH THE OFFER AND THE AGREEMENT DOES NOT VIOLATE SUCH LAWS, INCLUDING, WITHOUT LIMITATION, RELEVANT GAMBLING LAWS.
Customer Indemnification: To the fullest extent permitted by law, you agree to indemnify, defend, and hold harmless Easy Live, its officers, directors, employees, affiliates, agents, licensors, suppliers, successors, assigns, and their past and present officers, directors and employees, representatives, and agents from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of:
(a) any claim due to or arising out of your violation of the terms of this Agreement, including, but not limited to, a claim arising out of a breach of your representations or warranties made herein;
(b) your use or misuse of or access to our Services;
(c) your violation of any law, regulation, or third-party right, including, without limitation, any copyright, property, or privacy right; or
(d) any claim that you or your content caused damage to a third party.
Easy Live reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Easy Live, and you agree to cooperate with Easy Live's defense of these claims.
Services Provided “As Is”: THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXCEPT THOSE REQUIRED BY RELEVANT LAWS. THE COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SERVICES. THE COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, NONINFRINGEMENT, DESIGN, AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE.
Limitation on Liability:
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EASY LIVE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS EASY LIVE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF: (I) THE EASY LIVE SERVICE, YOUR ACCESS, USE, OR INABILITY TO USE THE EASY LIVE SERVICES; (II) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE (INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE EASY LIVE SERVICE); (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE EASY LIVE SERVICE; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL IDENTIFIABLE INFORMATION STORED THEREIN; OR (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE EASY LIVE SERVICE BY ANY THIRD PARTY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EASY LIVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE EASY LIVE SERVICE OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEEDING THE AMOUNT PAID BY YOU, IF ANY, TO EASY LIVE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM AND ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS EVEN IF EASY LIVE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN EASY LIVE AND RECEIVED THROUGH OR ADVERTISED ON THE EASY LIVE SERVICE OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
Force Majeure: Neither party shall be liable for any delay or failure to perform its obligations hereunder as a result of any Force Majeure Event; provided, however, that a Force Majeure Event shall not relieve the customer’s obligations to pay amounts which accrued prior to such Force Majeure Event. Each party shall notify the other in the event of any Force Majeure that affects its ability to perform its obligations hereunder. If a Force Majeure Event lasts for more than three (3) months, the Agreement may be terminated unilaterally by either one of the parties by written notice to the other.
During the term of the Agreement, and for a period of five (5) years thereafter, the parties agree to hold all confidential information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give, or disclose such confidential information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such confidential information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all confidential information confidential.
Confidential information shall mean any information that (i) has been marked “confidential,” or with words of similar meaning, at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and (iii) should reasonably be recognized as confidential information of the disclosing party. Confidential information includes, without limitation, information, ideas, and materials of or about Easy Live and/or its affiliates, employees, or customers that are not generally known to the public, including, without limitation, information, ideas, or materials relating to methods or technology, trademarks, trade secrets, patents, copyrights, or any other proprietary or intellectual property rights, products, processes, employees, finances, technology, methods, algorithms, software, code, contacts, clients, customers, strategy, and other business or technical matters. Confidential information does not include any information or documentation that was: (A) already in the possession of the recipient without an obligation of confidentiality; (B) developed independently by the recipient, as demonstrated by the recipient, without violating the disclosing party’s proprietary rights; (C) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (D) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of the recipient).
Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the customer, at the sole election of customer, the immediate termination, without liability to customer, of this Agreement corresponding to the breach or threatened breach.
Upon termination of this Agreement, in whole or in part, each party shall, within five (5) business days from the date of termination, return to the other party any and all confidential information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control.
Governing Law – Consent to Jurisdiction: The validity, performance, construction, and interpretation of this Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws provisions. Any dispute arising under, in connection with, or incident to this Agreement or concerning its interpretation will be resolved exclusively by state and federal courts located in San Francisco County, California. Each party hereto waives any objection as to said venue and submits to the personal jurisdiction of said court, but only for purposes of resolving any dispute under this Agreement.
Attorneys’ Fees and Costs: In any legal action hereunder, the prevailing party shall be entitled to reimbursement for attorneys’ fees and court costs.
Notices: Notices hereunder shall be in writing and sent to the parties at their respective addresses, as set forth above, via email (if written confirmation may be obtained), facsimile (if written confirmation may be obtained), personal delivery, overnight courier, or certified mail. The date and time of confirmation (for facsimile or email), certification, or delivery (if notice is by personal delivery or overnight courier) shall be the date and time of such notice, unless such date and time do not fall between 9:00 a.m. and 5:00 p.m. (recipient’s time zone) on a business day, in which case the date and time shall be deemed to be 9:00 a.m. on the next business day.
No Legal Advice: Nothing in this Agreement, nor anything pertaining, in whole or in part, to the Services, shall be construed for any purpose as legal or tax advice. Each party hereto has been provided the opportunity to seek legal counsel with respect to this Agreement and the use of the Services.
Headings: The section headings provided herein are for convenience only and have no substantive effect on the construction of this Agreement.
Amendments: No document that purports to modify or supplement the Agreement shall add to or vary the terms of the Agreement unless otherwise agreed to in writing, signed by an authorized representative of each party.
Severability: If one or more provisions of this Agreement are held to be invalid, void, or otherwise unenforceable under applicable law by any court or administrative body of competent jurisdiction, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms to the fullest extent permitted by applicable law.
Survival: All provisions which would reasonably be deemed to survive termination shall be deemed to survive termination of this Agreement for any reason.
Waiver: The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party's right to exercise or enforce such right or any other right in the future.
Entire Agreement: This Agreement constitutes the entire agreement between the parties concerning the subject matter hereto and supersedes all prior representations, negotiations, promises, understandings, or agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement shall be deemed to have been drafted jointly by the parties, notwithstanding that one party or the other may have performed the actual drafting hereof.
Relationship of the Parties: The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party nor its employees have the authority to bind or commit the other party in any way or to incur any obligation on its behalf. This Agreement is for the benefit of the parties hereto and is not intended to confer upon any other person or entity any rights or remedies hereunder.
Assignment: The customer shall not assign this Agreement or delegate any of its rights or obligations hereunder, in whole or in part, without Easy Live’s prior written consent. Any attempt to assign this Agreement or delegate any of its rights or obligations under this Agreement without such consent will be null and void. Notwithstanding the foregoing, either party may assign this Agreement without the consent of the other party if a majority of its outstanding voting capital stock is sold to a third party, or if it sells all or substantially all of its assets or if there is otherwise a change of control; provided, however, that in the event of such assignment by the customer, Easy Live will then have the right to terminate this Agreement immediately upon written notice. Further, the parties acknowledge and agree that Easy Live may delegate and/or assign some or all of its obligations hereunder to its parents, subsidiaries, and affiliate entities, without limitation.
Publicity: Easy Live shall have the right to make non-derogatory reference to the customer on its website and in other publicity materials as a customer of Easy Live and shall have the right to use the customer’s name, trademarks, logos, and the like (“Marks”) for and in connection with the same; provided, however, that Easy Live shall comply with the customer’s written requests with respect to any changes made by the customer to such Marks, and the customer shall promptly notify Easy Live in the event of any third-party claim which would impact Easy Live’s use of such Marks as set forth herein, or any other events or occurrences which are reasonably likely to affect the same.