Shindig Services Agreement
This Services Agreement (the "Agreement") is entered into by and between Shindig, Inc., a Delaware corporation with a place of business at 55 CPW Suite 18F, New York, New York, 10023 (“Shindig”) and the Customer identified as such on a separate Order Form (“Order Form”) executed by such Customer (“Customer”). This Agreement shall be effective as of the date the Order Form has last been signed by Customer and Shindig (“Effective Date”).
- SERVICES AND SUPPORT
- Order Form and Fees. The terms of this Agreement are incorporated in each Order Form. Subject to the terms of this Agreement, Shindig will provide Customer the Services described in the Order Form for the Fees specified in the Order Form. For purposes of calculating Fees based on user hours, the term “user hours” refers to each hour or fraction of an hour, that a unique user is logged into a Customer event. Unique user is determined by email address, and user hours are consolidated by email address to avoid the possibility of multiple fractional billing for the same unique user.
- Training. Annual agreements include ten (10) hours of training without additional charge. Training and support in addition to that provided for in the Order Form may be purchased by Customer at $125 an hour.
- License Grant. Shindig grants to Customer a limited, non-exclusive, non-sublicensable, and non-transferable license to remotely access and use the Services and any related software, plug-ins, extensions, documentation or data (“Software”) made available by Shindig for the project or during the term specified in the Order Form solely for Customer’s business purposes, and not for resale, except as expressly permitted in this Agreement. The licensed Services and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer may permit authorized users and Event Participants to access and use the Services in accordance with Section 1.4 below. No rights or licenses are granted by Shindig except as expressly set forth herein, and all other rights are reserved solely to Shindig.
- Customer Responsibilities. As part of the account registration process, Customer will identify an administrative username and password for Customer’s Shindig account. Unless the Order Form provides otherwise, Customer may use the administrative username and password to create an unlimited number of standard account holders (each with a user password). Shindig may refuse registration of or cancel passwords it deems inappropriate. Customer is responsible for the security of each username and password created by Customer, and each of Customer’s designated account holders are responsible for the security of the username and password provided to such account holder. Customer will ensure that its event participants (“Event Participants”) abide by this Agreement and a Shindig’s Terms of Service [https://www.shindig.com/tos/]. Customer shall be responsible for any non-compliance by its Event Participants. Customer is responsible for the actions of, and for any data or other information transmitted by, Customer or its Event Participants through the Services. For purposes of this Agreement and Shindig’s Terms of Service, Customer, its account holders, agents, employees and contractors with access to the Services will be deemed Event Participants.
- Closed Captioning. If Customer or its Event Participants require any transcription or closed captioning services to be implemented using Shindig’s hot button widgets or html embed pods for any Customer event, Customer or such Event Participants are responsible for arranging for such transcription or closed captioning, and for the cost thereof.
- Support. Shindig will provide Customer with support services through telephone, electronic mail or another online mechanism, in accordance with Shindig’s support policies [https://www.shindig.com/sla/]. Customer acknowledges that Services may be temporarily unavailable or unstable because of (i) bandwidth or other limitations on internet capacity or stability caused by high internet usage generally or third-party imposed limitations, or (ii) a need for required maintenance or other causes beyond Shindig’s reasonable control. If Customer provides Shindig with at least 24 hours prior notice of any planned event that is scheduled in Shindig Event Manager, Shindig will not schedule maintenance during such event except where such maintenance is required to maintain the stability of Shindig’s Services.
- RESTRICTIONS AND RESPONSIBILITIES
- Protection of Intellectual Property. Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software; (ii) modify, translate, or create derivative works based on the Services or any Software; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party except as expressly permitted herein or any applicable Order Form; or (iv) remove or obscure any proprietary notices or labels.
- Customer Compliance Responsibility. Customer shall ensure that use by Event Participants is consistent with the limitations or restrictions in the applicable Order Form. Customer and its Event Participants will use the Services only in compliance with applicable laws and regulations, including but not limited to (i) the General Data Protection Regulation ((EU) Regulation 2016/679) ("GDPR"), the United Kingdom Data Protection Act 2018, (ii) other laws and regulations relating to data privacy and security, and (iii) laws and regulations relating to intellectual property, consumer and child protection, obscenity and defamation. Customer and Event Participants will comply with legal requirements relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded video conference that the video conference is being recorded. No use may be made of any image of an individual person, from which such individual may be identified, without the consent of such individual, where such use violates any applicable law or regulation. If Customer or its Event Participants are domiciled or resident in the European Economic Area, Switzerland or the United Kingdom, for purposes of compliance with the GDPR and other applicable privacy legislation in such jurisdictions, Shindig’s form of Data Processing Addendum, which may be accessed at [https://www.shindig.com/dpa/] will be deemed part of this Agreement.
- Recording of Events. If Customer records an event, such recordings are available for download exclusively by Customer pursuant to its account access, for which the Customer manages the sharing permissions and the life cycle. For security purposes, and absent express instructions to the contrary, Shindig reserves the right to delete any such recordings or other attendee data after ninety (90) days. Shindig will delete any such recordings and other attendee data (or anonymize such attendee data) one hundred and twenty (120) days after the end of the month in which the applicable event occurs. Shindig will have no liability if recordings or other attendee data are deleted in accordance with the provisions of this Section.
- Limitations on Use by Customer. Customer represents that neither Customer nor any person or entity on whose behalf the Services will be used is located in Cuba, Iran, North Korea, Sudan, or Syria; associated with the governments of these countries; or identified as a Specially Designated National by the Office of Foreign Assets Control, U.S. Department of the Treasury, or on the Denied Persons, Entity, or Unverified Lists of the Bureau of Industry and Security, U.S. Department of Commerce. Customer further represents that the Services shall not be used for or in connection with nuclear activities; the development of biological or chemical weapons, missiles, or unmanned aerial vehicles; to support terrorist activities; or in any other way that would violate U.S. export controls or economic sanctions laws. Customer agrees to promptly notify Shindig and terminate its use of the Services if it discovers that any of the foregoing conditions apply. Shindig may suspend or prohibit any use of the Services it reasonably believes may be (or that is alleged to be) in violation of this Agreement or harmful to Shindig’s network or systems, or which may impair or interfere with the provision of any Services to other customers, account holders or Event Participants.
- Customer Environment. Customer, at its cost, is responsible for obtaining and maintaining any devices or equipment needed to access or use the Services. Customer is also responsible for maintaining the security of access to Customer’s account, passwords, and files, and for any use of Customer’s account with or without Customer’s knowledge or consent.
- Acceptance of Terms of Service. Event Participants and other persons or entities accessing Shindig’s website for the purpose of accessing and using the Services are subject to Shindig Terms of Service [https://www.shindig.com/tos/]. SHINDIG’S TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE WHICH BINDS SHINDIG, CUSTOMER, ACCOUNT HOLDERS AND ALL EVENT PARTICIPANTS TO RESOLVE CERTAIN DISPUTES INVOLVING THIS AGREEMENT, THE TERMS OF SERVICE, OR USE OF THE SERVICES BY ARBITRATION IN NEW YORK, NEW YORK.
- Commercial Events; Ticket Revenue Share Due to Shindig. Customer may use the Services for paid events and collect admission fees or ticket charges (“Ticket Revenues”) from Event Participants and/or collect additional Sponsorship Revenue (as defined below) for Customer’s events. For ticketing, Customer shall use the Shindig-provided pay agent or payment processor to provide payment processing services. For such ticketed events, Shindig will be entitled to receive the greater of (a) the charges for use of the Services under the rate per user hour specified in the Order Form, or (b) twenty-five (25%) percent of the aggregate ticket price collected for such event. Shindig’s 25% revenue share, if applicable, will be deducted from revenue remitted by the pay agent or payment processor to Shindig. Amounts net of Shindig’s revenue share of Ticket Revenues will be remitted to Customer forty (40) days after the end of the month in which the event occurs, for the purpose of allowing for resolution of chargebacks.
- Sponsorship Revenue Share Due to Shindig. If Customer receives consideration for the use of a third party’s name for the title of an event or its branding in the background, use of an attendee list (subject to Customer compliance with applicable law relating to sharing any such list), or the use of a hot button widget or link to their website or other ecommerce link (“Sponsorship Revenues”), Shindig will be entitled to the greater of (a) the charges for use of the Services under the rate per user hour specified in the Order Form, or (b) ten (10%) percent of the gross amount of all Sponsorship Revenues. To the extent Sponsorship Revenues include charges for bundled products and services, separate and apart from access to or participation in the Customer event or exploitation of the stream or its recording, then Customer shall make appropriate allocations and deductions therefor. Customer will pay Shindig its share of Sponsorship Revenue within forty (40) days after the end of the month in which they have received the sponsorship fee, and upon Shindig’s request Customer will provide Shindig with a copy of the invoice to the sponsor along with appropriate documentation and a statement of remitted amounts. For the avoidance of doubt, if Customer is obligated to pay Shindig ten (10%) percent of Sponsorship Revenues under the preceding paragraph, then such payment obligation will be in addition to Customer’s obligation to pay any share of Ticket Revenues collected.
- Reseller Terms. This Agreement is for use by Customer. Absent the terms governing resale of the Services by Customer being specified in the Customer Order Form, then the following terms in this Section shall apply:
- Customer engaged in reselling (“Reseller”) will remit to Shindig the greater of the applicable rate per user hour as stated in the Order Form or 25% of the total consideration billed to the third party for production of such event. In the event of hybrid events, separate budgets for the physical event and the online component will be provided by Reseller to Shindig. Costs for delivery of physical goods delivered to attendees in association with a virtual event and/or performance fees for special guests appearing at such event will also be excluded from the billing price when calculating the 25% revenue share payable to Shindig. Revenue share will be payable to Shindig within 45 days of receipt, and Reseller will provide to Shindig with such payment all relevant documentation of the transaction and amounts received. Reseller will provide Shindig promptly upon request with copies of any agreement or statement of work between Reseller and any third parties pertaining to the online event. Shindig shall at all times remain an independent contractor for the Services, and Reseller’s right to resell the Services shall not constitute a joint venture or partnership of any kind between Reseller and Shindig. For the avoidance of doubt, the other terms and conditions of this Agreement, including but not limited to Shindig’s Terms of Service, apply to any Reseller transaction or resold Services.
- In addition to other indemnification obligations of Customer in this Agreement, Reseller shall indemnify, defend and hold harmless Shindig and its representatives, suppliers and licensors, and their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any third party claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable attorneys’ fees, fees of other professional advisors and costs) arising out of or in connection with Reseller’s, its customer(s) or Event Participants’ (i) access to or use of the Services; (ii) breach of this Agreement, Shindig’s Terms of Service, or any other agreement between or among Reseller and any third parties; (iii) violation of applicable law; (iv) negligence or willful misconduct; or (v) violation of the rights of a third party. This indemnity survives termination of this Agreement.
- Customer Forms. The terms of any Customer purchase order or other pre-printed, standard terms provided by Customer will have no legal effect, and Shindig hereby notifies Customer that it objects to any such terms.
- PROPRIETARY INFORMATION
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business that is marked or otherwise designated at the time of disclosure as confidential or proprietary, or words of similar import (hereinafter referred to as “Confidential Information” of the Disclosing Party). Shindig Confidential Information includes any Software, technical specifications and pricing, even if not so designated. The Receiving Party agrees: (i) to take reasonable precautions and use reasonable care to protect such Confidential Information, and (ii) not to use or disclose to any third party such Confidential Information (except as necessary in performance or use of the Services or as otherwise permitted herein). The Disclosing Party agrees that the foregoing shall not apply with respect to any information (other than trade secrets identified as such by the Disclosing Party and any personally identifiable information, as to which there will be no time limitation on any non-disclosure and non-use obligation in this Section 3) after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public or generally known in the industry without fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
- Shindig shall have the right to collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies, and Shindig will be free to (i) use such information and data (during and after the term of this Agreement) solely in an aggregate or other de-identified form to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Shindig offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- Subject to the licenses and rights granted to Shindig in the Terms of Service and contingent upon Customer’s payment of all Fees due and Customer’s compliance with the terms of this Agreement, Shindig conveys to Customer all rights to the recording that it has obtained through its Terms of Service, except for Shindig’s ownership rights in Shindig Content as defined in the Terms of Service.
- PAYMENT OF FEES
- Customer will pay Shindig the then applicable fees stated in the Order Form for the Services (the “Fees”). If set forth on the Order Form, Customer authorizes Shindig to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms on the Order Form. Customer will provide Shindig with (and maintain) valid and updated credit card information or other payment information reasonably acceptable to Shindig. If Customer’s use of the Services exceeds the purchased Services set forth in the Order Form (e.g., number of participants or user hours set forth on the Order Form) or otherwise requires the payment of additional fees (per the terms of this Agreement or the Order Form), Customer shall be billed for such usage or additional Services as set forth in the Order Form in the following pay cycle. For annual subscription agreements, Shindig reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term for the applicable Services or then-current renewal term (the initial term and any renewal term(s) are together referred to herein as the “Term”), or at any time during the applicable subscription term in the case of an increase in costs imposed upon Shindig by an unaffiliated outside supplier of telecommunications or related services, in either case upon thirty (30) days prior notice to Customer (which may be sent by email). Except in the event of material breach by Shindig, all fees paid are non-refundable. If Customer believes that Shindig has billed Customer incorrectly, Customer must contact Shindig no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Shindig’s customer support department.
- Shindig may also choose to bill through an invoice, in which case, full payment for invoices must be received by the date set forth in the Order Form, or if no such date is provided, then within thirty (30) days after the mailing date of the invoice. Shindig may suspend or terminate Customer’s access to the Services if Customer’s account is past due. Unpaid amounts that remain unpaid thirty (30) days after the due date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure to make timely payment may result in suspension or termination of Services.
- All fees provided for in this Agreement are exclusive of any sales or use taxes, duties or similar charges imposed by any government authority (“Taxes”). Customer shall be responsible for all Taxes associated with the Services other than U.S. taxes based on Shindig’s net income. If Shindig is legally obligated to pay or collect Taxes for which Customer is responsible under this Agreement, Shindig will invoice and Customer will promptly pay Shindig such amounts (or Customer will reimburse Shindig for any Taxes paid on Customer’s behalf). If Shindig collects Taxes from Customer that are required to be paid by Customer to any government authority, Shindig will pay such amounts collected to the appropriate authorities on Customer’s behalf. If either party is audited by a taxing or other governmental authority in connection with taxes under this Agreement, the other party shall reasonably cooperate with the party being audited in an appropriate and timely manner.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form. If Customer purchases a subscription for an annual or other specified term under a monthly plan and not a project based quote, the Term shall automatically renew unless Customer provides written notice to Shindig of its intent not to renew no later than thirty (30) days prior to the end of the then-current initial term or renewal term.
- In addition to any other remedies it may have, either party may also terminate this Agreement and any Order Form upon thirty (30) days’ notice, if the other party is in material breach of any of the terms or conditions of this Agreement. Upon any termination of this Agreement or any applicable Order Form for any reason, (i) Customer will pay in full for the Services up to and including the last day on which the Services are provided, and (ii) Shindig may, but is not obligated to unless requested by Customer in writing, delete any archived Customer content (excluding aggregate performance and usage data).
- This Agreement shall be effective until terminated. Upon a material breach by Customer, or if Shindig is not able to continue to provide the Services for reasons beyond its control, Shindig may suspend or terminate this Agreement and the rights afforded to Customer hereunder with or without prior notice. Upon the termination of this Agreement, Customer shall cease all use of the Services and uninstall the Services. Shindig will not be liable to Customer or any third party for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Shindig may have, now or in the future.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, this Section 5, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Shindig warrants that during the Term of an applicable Order Form that Shindig will use reasonable efforts, consistent with prevailing industry standards, to provide the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that temporary service disruptions may occur because of scheduled or emergency maintenance activities, or for other causes beyond the reasonable control of Shindig.
SHINDIG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SHINDIG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Shindig and/or its licensors own all worldwide right, title and interest in and to the Services, including all worldwide intellectual property rights therein. Customer may not remove or in any manner alter or obscure the copyright, trademark, and other proprietary rights notices appearing in or on the Services.
Each party shall indemnify, defend and hold harmless the other party and its respective officers, directors, agents and employees from and against any third party claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable attorneys’ fees, fees of other professional advisors and costs) (together, “Claims”) arising out of or in connection with: (i) the indemnifying party’s gross negligence or willful misconduct; or (ii) the indemnifying party’s violation of any applicable law. In addition, Customer shall indemnify, defend and hold harmless Shindig and the other Indemnified Parties from and against any Claims arising out of or in connection with: (i) Customer or Event Participants’ access to or use of the Services in breach or violation of this Agreement, including but not limited to Shindig’s Terms of Service or Acceptable Use Policy; or (ii) Customer or Event Participants’ infringement or violation of the rights of a third party, including without limitation intellectual property rights. These obligations survive termination of this Agreement.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE RESPONSIBLE FOR (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (B) ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL. SHINDIG, ITS REPRESENTATIVES, CONTRACTORS AND SUPPLIERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO (X) ANY NETWORK OR SYSTEM FAILURE, OR (Y) CUSTOMER’S INABILITY TO ACCESS OR USE SHINDIG’S PLATFORM OR SERVICES, OR ANY ERROR OR INTERRUPTION OF USE OR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS RESULTING THEREFROM OR ARISING UNDER THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EXCEPT TO THE EXTENT PROHIBITED BY LAW. EXCEPT FOR BREACH OF INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, SHINDIG’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIMS SHALL NOT EXCEED THE GREATER OF $10,000 OR THE FEES PAID BY CUSTOMER TO SHINDIG FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SHINDIG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SURVIVE TERMINATION OF THIS AGREEMENT.
If any provision of this Agreement, is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable even by operation of law, transferable or sublicensable by Customer except with Shindig’s prior written consent. Shindig may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
EACH PERSON SIGNING THE ORDER FORM REPRESENTS AND WARRANTS THAT THE SIGNER HAS THE AUTHORITY TO BIND THAT PARTY TO THE ORDER FORM AND THIS AGREEMENT, AND HIS OR HER AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE PARTY NAMED. EXECUTION OF THE ORDER FORM INCORPORATES THIS AGREEMENT INTO THE ORDER FORM.