Last Update: 6 May 2019
This Subscriber Agreement (the “Subscriber Agreement”) is entered into between (i) Eventival s. r. o., with its registered office at Praha 3 - Žižkov, Seifertova 1527/16, Post Code 13000, Company ID 28991214 (“Eventival”), as the provider of the Service (as defined below) and (ii) the corporate entity/person wishing to use the Service on the terms as set out below (the “Customer”).
For the avoidance of any doubt, if an individual is entering into this Subscriber Agreement on behalf of an organization, such organization shall be deemed the Customer and Eventival assumes that the representing individual has the power and authority required to bind such organization to this Subscriber Agreement.
The Service is a cloud based software solution created for the purpose of data management and event logistics (the “Service”) regarding events such as, but not only, film and music festivals, conferences and other cultural, social and business events (the “Events”) which allows its users to view, post, publish, link, store, share, manage and otherwise create and make available various data, ideas, opinions, recommendations, as well as textual, literary, artistic, musical, graphic or other content, including but not limited to photos and videos ("Content").
The Customer is interested in obtaining from Eventival the right to use the Service and certain related support services provided by Eventival, and Eventival is interested in providing these to the Customer for the payment of a fee in accordance with clause 4 of this Subscriber Agreement.
Support Services provided in accordance with this Agreement comprise training session(s) as set out in the fee Quotation offered to the Customer by e-mail prior to making this Agreement (“Quotation”), maintenance and updates of the Service. Upon the Customer’s request, Eventival may provide further Support Services (in particular additional trainings, additional programming, or modifications of the Services required due to incorrect use of the Service, data restoring, further development of the Service) for a fee in accordance with the Quotation, or for a fee individually agreed with the Customer in writing.
This Subscriber Agreement is made and the Customer and its authorised users are entitled to use the Service upon an express Order Confirmation made by the Customer through a link sent by Eventival (“Order Confirmation”) and the payment of a subscription fee in accordance with clause 4 of this Subscriber Agreement.
The Service is made available to the Customer in accordance with the specifications submitted in the Order Confirmation.
By submitting the Order Confirmation, the Customer agrees to pay for the Service the yearly (annual) subscription fee in accordance with the Quotation, unless a specific fee was agreed in writing.
The Quotation is sent to the Customer by e-mail prior to making the Order Confirmation. The Customer is responsible for all taxes (excluding taxes on Eventival’s net income), and Eventival will charge tax when required to do so by law.
Based on the Order Confirmation, Eventival will promptly issue an invoice (“Invoice”) which is due and payable within 14 days. In the event of non-payment the Customer will pay to Eventival a late payment interest in the amount of 0.1 % p.a. of the owed and overdue amount per each day of delay with payment.
The Customer agrees to pay the Invoice when due. If the fees are being paid via credit card or other electronic means, Customer authorizes Eventival to charge such fees using Customer’s selected payment method.
If the Customer continues to use the Service in the subsequent year, Eventival will issue an invoice based on which the Customer shall pay the yearly fee for the use of the Application during that calendar year (“Application Renewal”).
Eventival may revise fee rates for the Service and/or Support Services specified in the Quotation from time to time, and will notify the Customer via an e-mail notice of any such changes in fees at least thirty (30) days prior to Customer’s Application Renewal date.
In the event of any late payment, Eventival may charge a late payment interest as specified above and Eventival reserves the right, in its sole discretion and without limiting its other rights and remedies, to suspend or terminate Customer’s use of the Service if any fees become past due.
All fees paid for the Service and/or Support Services are non-refundable except as required by law or as explicitly agreed in writing.
The Customer is responsible for providing complete and accurate billing information to Eventival.
Package is the level of the Service and Support Services, as provided by Eventival in accordance with the applicable Quotation, which details the various modalities of the Service and Support Services offered by Eventival to its Customers for a certain fee (“Package”).
The Customer is entitled to use the level of the Service and Support Services in accordance with the Package chosen and confirmed in the Order Confirmation upon the payment of the respective fee.
In the event that the Customer believes that the Service and/or the Support Services have any defects, the Customer is obliged to notify Eventival in writing of any such defects without undue delay. Eventival will use all reasonable efforts to remedy such perceived defects, taking into consideration that the Service is provided on an “as is” basis without any guarantees regarding its performance (as set out in clause 2 of the Terms of Service).
The Customer may designate any number of individuals as Authorised Users to use the Service and upload or remove Content onto the Service on behalf of the Customer. Authorized Users may be the Customer’s or its Affiliate’s employees, representatives, consultants, contractors, agents, or other third parties who are acting for its benefit or on its behalf. Authorised Users will have the ability to access, monitor, use, export and disclose all Content posted by other Authorised Users appointed by the Customer.
The Service is not authorized for use by persons under the age of 16 and the Customer is obliged to ensure that it does not authorise any such person to use the Service.
The Customer is also responsible for providing any notice and obtaining any consents and authorizations as may be necessary: (i) to allow the Authorised Users to access, monitor, use and disclose the Content posted on the Service; and (ii) to allow Eventival to provide the Authorised Users with access to such Content.
Eventival shall not be liable for any actions or omissions on the part of Customer’s Authorised User(s).
The Customer and its Authorised Users are solely responsible for the Content uploaded by them to the Service, including its legality, correctness, reliability, and appropriateness. The Customer and its Authorised Users must not use the Service to process any sensitive personal data (within the meaning of the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [“General Data Protection Regulation”]).
License to use the Service:
Eventival hereby grants the Customer a limited, non-exclusive and non-transferable right to access and use the Service.
License to use the Content:
The Customer hereby grants to Eventival a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of Eventival’s business or a part of it) right to access, use, copy, reproduce, process, adapt, publish, transmit and display any Content submitted to the Service by the Customer and its Authorised Users for the purpose of (i) providing the Service and associated Support Services; and (ii) analyzing and improving the Service.
For the avoidance of any doubt based on this license Eventival has the right to store data in a “master database” containing the data uploaded by all the users of the Service for the purpose of further improving the Service and its security. Eventival may also create and share aggregate, anonymized data about the use of its Service by its customers.
Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Eventival any rights or interest in or to the Customer Content or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Eventival Intellectual Property.
Eventival is the sole and exclusive author of the Service and the Service is the exclusive property of Eventival and is protected by intellectual property rights. Our trademarks, logos or name may not be used in connection with any product or service without the prior written consent of Eventival.
In any use of the Service vis-à-vis third parties, the Customer must include the following attribution to Eventival on all user interfaces in the following format: “Powered by Eventival,” which must in every case include a hyperlink to http://www.eventival.com.
Eventival may incorporate into the Service any suggestions or feedback received from the Customer without any obligation to the Customer and any such modifications to the Service shall be the sole and exclusive property of Eventival.
The Customer agrees that Eventival may include the Customer’s name and logo in a list of Eventival’s customers available online and in print and electronic marketing materials.
Eventival does not warrant or support any third party service (e.g., a service that utilizes the Eventival web services in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
This Subscriber Agreement is concluded for the period of 1 (one) calendar year. It will be automatically prolonged for the subsequent calendar year, unless it is terminated by the Customer or Eventival.
The Customer may terminate this Subscriber Agreement at any time by sending a written notice (including an e-mail notice) to Eventival.
In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set out in this section) will cease immediately; and (ii) any Support Services provided to the Customer by Eventival will cease to be provided.
For the avoidance of any doubt, the following provisions will survive expiration or termination of this Subscriber Agreement: Return of Customer Data, Confidentiality, Indemnification, Limitation of Liability, Governing Law, Jurisdiction and Dispute Resolution.
Upon termination of the Subscriber Agreement, Eventival will delete the Customer’s Content, unless the Customer delivers to Eventival a written request for returning such Content no later than within 30 days from the date of termination. Eventival will return the Content to the extent possible in the format of Excel spreadsheet(s), subject to the payment of a fee in the amount of EUR 80 per one hour of work required for the time spent by Eventival on performing the work necessary to return the data. Eventival may require that this fee or its part is paid in advance. The return of the Customer’s Content shall be confirmed by the Customer in writing.
In connection with this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”).
Confidential Information may include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Content uploaded by it onto the Service.
Except as otherwise expressly permitted under this Subscriber Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care.
Eventival may disclose the Customer’s Confidential Information to its employees, consultants, agents or advisors who have a reasonable need to know such Confidential Information for the purpose of performing Eventival’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
The Customer may disclose Eventival’s Confidential Information to its employees, consultants, agents or advisors who have a reasonable need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
The obligations set out above do not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates.
Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
Indemnification by Customer:
Indemnification by Eventival:
Eventival hereby agrees to indemnify, defend and hold harmless the Customer and its employees, contractors, agents, officers and directors (the “Customer Affiliates”), from and against any and all losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or Eventival’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party.
In no event will Eventival have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with software or materials not furnished by Eventival; (ii) use of any third party app developed using Eventival’s web services; or (iii) any content, information, or data provided by Customer, its Authorised Users, or other third parties. This indemnity is the Customer’s only remedy for any violation by Eventival of any third party’s intellectual property rights.
The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
To the maximum extent permitted by law, except in connection with their respective indemnification obligations set out above, in no event shall either party, its directors, employees, partners, agents, suppliers or affiliates be liable for any damage, including without limitation damages for loss of profits, data, use, goodwill or other intangible losses, resulting from (i) the Customer’s access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of the Content, regardless of the legal title of such potential liability.
Under no circumstances will Eventival be responsible for any damage or loss resulting from hacking, tampering or other unauthorised access or use of the Service or of the Customer’s Eventival Account or Content by any third party.
Except for payment obligations, neither Eventival nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labour conditions, governmental actions and interruption or failure of the Internet or any utility service.
In any event, Eventival's aggregate liability for any and all claims of the Customer related to the Service or Support Services shall not exceed the total amount paid by the Customer to Eventival in connection with the Service and Support Services during the twelve (12) month period prior to the claim giving rise to such liability.
These limitations of liability shall apply regardless of whether a party knew or should have known that such damages were possible.
The Service is controlled and operated from the Czech Republic and it shall not be moved outside the European Union. Eventival makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions do so of their own volition and are responsible for compliance with all applicable Czech and EU laws as well as local laws and regulations, including but not limited to export and import regulations.
The Customer agrees that Eventival may transfer, store and process Customer Content in locations other than Customer’s country.
This Agreement shall be governed and construed in accordance with the laws of Czech Republic, without regard to its conflict of law provisions, in particular by the Act no. 89/2012 Coll, the Civil Code and its provisions § 1724 et seq. and § 2358 et seq..
All disputes the aggregate value of which is below EUR 5.000 arising in connection with this Agreement or the Service shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic by one arbitrator appointed by the President of the Arbitration Court.
All disputes the aggregate value of which is above EUR 5.000 arising in connection with this Agreement or the Service shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic according to its Rules by three arbitrators in accordance with the Rules of that Arbitration Court.
In the event of doubt the value of the dispute is deemed to be above EUR 5.000.
If any provision of this Agreement is held to be invalid or unenforceable by a court or arbitrators, the remaining provisions will remain in full force and effect and an enforceable term will be substituted reflecting as closely as possible our original intent.
Eventival's failure to enforce any right or provision of this Agreement shall not be deemed a waiver of its right to do so later.
This Agreement and any rights and licenses granted hereunder may not be transferred or assigned by the Customer to any third party without a prior written consent of Eventival, except to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of the Customer or of all or substantially all of its assets.
The Customer must not in particular, without an express prior written consent of Eventival, allow any use of the Service by third persons, regardless whether in Exchange for a fee or free of charge, or allow any third person to copy the Service or any part of it.
Eventival may assign or transfer its rights and obligations at any time as permitted by law.
The parties are obliged to mutually co-operate with the aim of fulfilling the purpose of this Agreement.
The Customer will notify Eventival of its Event(s), for the organisation of which it uses the Service, and of any other events of representative or marketing character related with the Event, and the Customer may provide the representative(s) of Eventival with an invitation to its Event (comprising typically transport, accommodation and guest status).
The Customer will follow the recommendations provided by Eventival regarding the use of the Service, and will appoint a person responsible for the communication with Eventival and will inform Eventival about such appointment.
The Customer will notify Eventival of all requests regarding the Service and Support Services through the communication channels set out in the manual which the Customer will receive from Eventival following the Order Confirmation.
Prior to the provision of any Support Services the Customer will provide Eventival with all relevant information as may be necessary for the respective services to be provided and will ensure an appropriate cooperation of its employees or other staff with the person(s) appointed by Eventival to provide such Support Services.
Obligations of Eventival:
Eventival will record all information provided by the Customer in order to keep an updated record of the Customer’s contact information and in order to documents the nature of reported issues.
Eventival will use all reasonable efforts to solve (via electronic means and/or telephone) any reported issues upon first notice, without prejudice to the principle that the Service is provided on an “as is” basis without any guarantees regarding its performance (as set out above in clause 5 of this Subscriber Agreement and in clause 2 of the Terms of Service).
Eventival will provide the Customer with the required Support Services as promptly as possible.
Eventival will notify the Customer at least 48 hours in advance by e-mail of any planned maintenance of the Service which may affect its use.
Eventival will inform the Customer of all changes in the processes or practices which may affect the use of the Service.
Any notices which shall be made in writing may be made also by e-mail. If such notice is addressed to Eventival any such notices shall be sent to email@example.com.
Any notices to the Customer shall be sent to the e-mail account of the Customer provided to Eventival.