Products Partner Agreement

This Products Partner Agreement (“Partner Agreement“) is entered into by and between Elk River Systems, Inc., a Montana corporation doing business as Eventgroove and its affiliates (“Eventgroove”, “Company,” “We,” “Us” or “Our”) and the Eventgroove preferred customer (“Partner“) indicated on any Company-provided: (i) online registration or order form or click through agreement or (ii) signed order form between the Parties (“Order Form”) effective as of the date of last signature (including digital signature) on the Order Form between the Parties that references this Partner Agreement (the “Effective Date”) and hereby incorporates by reference, supplements and amends the Eventgroove Products Terms of Sale at https://products.eventgroove.com/terms-of-sale/ (the “Terms of Sale“). In the event of any conflict between the Terms of Sale and this Partner Agreement, the terms of this Partner Agreement shall prevail. In the event of any conflict between an applicable Order Form and this Partner Agreement, the terms of the applicable Order Form shall prevail.

WHEREAS, Eventgroove has developed its ecommerce software platform and software services for the design, configuration, and sale of physical goods including print products, tickets, wristbands, posters, flyers, event badges, stickers and merchandise including bags, clothing, mugs, phone cases and other goods (including on-demand, design your own, special, non-standard, or other custom versions of the foregoing (“Custom Products”)) (collectively (including Custom Products) the “Products”);

WHEREAS, Partner desires to provide the Products to Partner’s employees, volunteers, customers and buyers (“Customer(s)”);

WHEREAS, Eventgroove desires to sell Partner and Partner’s Customers Products, subject to the terms and conditions set forth in the Terms of Sale as amended pursuant to this Partner Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows, notwithstanding any provision to the contrary under the Terms of Sale:

 

1. Definitions.

 

1. Capitalized term under this Partner Agreement shall be as defined in the Terms of Sale except as otherwise provided under this Partner Agreement.
2. References to You under the Terms of Sale shall mean Partner.
3. References to the Terms under the Terms of Sale shall include this Partner Agreement.
4. “Confidential Information” means business information of a confidential or proprietary nature (including Trade Secrets and information of commercial value), including the terms and conditions of this Partner Agreement and pricing, discounts, features, functionality, components, software, software code, technology, performance of software or Products and underlying technical or business information, which relates to the Discloser that is disclosed or provided to Recipient by or on behalf of Discloser pursuant to this Partner Agreement (or potential future purchases subject to this Partner Agreement), provided, however, that Confidential Information shall not include information that (1) is or becomes a part of the public domain through no act or omission of the Recipient; (2) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (3) is lawfully disclosed to the Recipient by a third party without restriction on disclosure, any existing non-use or confidentiality obligation or breach of this Partner Agreement; (4) is independently developed by the Recipient without use of or reference to any of the Discloser’s Confidential Information and without violating any of Recipient’s obligations under this Partner Agreement.
5. “Trade Secrets” means software, source code, code, software algorithms, specifications, models, formulas, samples, patterns, designs, plans, know-how, processes, questionnaires, methodologies, business methods, drawings, documents, innovations, technical information, data, business operations, current and prospective customer lists, financial information and projections, marketing and advertising plans, fee and pricing information including discounts, cost of services and materials and personnel information.

 

2. Identification as Partner.

 

SUBJECT TO PARTNER’S COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS PARTNER AGREEMENT, THE TERMS OF SALE (INCLUDING AS MODIFIED PURSUANT TO THIS PARTNER AGREEMENT), AND ANY STANDARDS OR GUIDELINES THAT EVENTGROOVE SPECIFICALLY PRESCRIBES, DURING THE TERM OF THIS PARTNER AGREEMENT, EVENTGROOVE GRANTS PARTNER A LIMITED, PERSONAL, NON-EXCLUSIVE, NON-SUBLICENSABLE, NON-TRANSFERABLE, REVOCABLE RIGHT TO USE EVENTGROOVE’S TRADEMARK “EVENTGROOVE” FOR USE UNDER THIS PARTNER AGREEMENT SOLELY IN CONNECTION WITH IDENTIFYING PARTNER AS AN EVENTGROOVE “PARTNER” IN CONNECTION WITH PARTNER’S AUTHORIZED PROMOTION OR DISTRIBUTION OF THE PROUCTS. PARTNER SHALL NOT ADVERTISE OR MARKET EVENTGROOVE’S PROUCTS WITHOUT CLEARLY IDENTIFYING EVENTGROOVE AS THE PROVIDER OF SUCH PRODUCTS. PARTNER SHALL PROMPTLY CEASE ANY USE OF EVENTGROOVE’S TRADEMARKS UPON REQUEST.

 

3. Partner Obligations.

 

1. Partner acknowledges and agrees that Partner’s and its Customers’ purchase of the Products shall be subject to the Terms of Sale.
2. Partner shall be solely responsible for all of the acts, omissions and breaches of its Customers (as if the act, omission or breach were committed by the Partner).

 

4. Non-Exclusive. The rights granted to Partner under this Partner Agreement are non-exclusive and nothing under this Partner Agreement will be deemed to prohibit Eventgroove from entering into any customer, distribution, reseller, VAR, end-user, license, subscription, services or other agreement with any party anywhere in the world either during or after the Term.

 

5. Confidentiality.

 

A Party or its affiliates may receive (“Recipient”) Confidential Information of the other Party or its affiliates (“Discloser”) and the Recipient shall keep all such Confidential Information confidential and protect it by using the highest degree of care that theRecipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than a commercially reasonable degree of care. The Recipient shall not disclose Confidential Information to any person or Entity other than their Representatives who have a need to know such Confidential Information provided that the Recipient remains responsible for the confidentiality and non-use of the information pursuant to this Section. Neither Party shall use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under this Partner Agreement. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations hereunder. This Section shall apply during the Term of this Partner Agreement and for three (3) years after this Partner Agreement’s termination, provided that, with respect to Confidential Information that constitute Trade Secrets, such rights and obligations will survive such termination perpetually until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Recipient or its Representatives provided that no termination shall relieve either Party from a prior breach. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section. 

 

Upon any termination or expiration of this Partner Agreement, the rights granted under Section 5 (Intellectual Property Rights) of the Terms of Sale will terminate and (a) Partner shall promptly destroy any and all Eventgroove Confidential Information and, upon Eventgroove’s request, have an officer of Partner confirm the same in writing and (b) Eventgroove shall promptly destroy any and all Partner Confidential Information and, upon Partner’s request, have an officer of Eventgroove confirm the same to Partner in writing. The foregoing requirements shall not apply to the extent that either Party is required (pursuant to the advice of independent legal counsel) by applicable law to retain any Confidential Information received from the other Party, in which case the receiving Party shall continue to protect such Confidential Information (e.g., as Trade Secrets, etc.) in accordance with the receiving Party’s obligations under this Partner Agreement, the terms of which will remain in effect with respect to such Confidential Information; otherwise, the terms of this Partner Agreement will remain in effect with respect to such Confidential Information.

 

Section 10 (Disclaimer of Warranties) of the Terms of Sale is hereby amended to add the following [bracketed/bold/underlined] provisions at the beginning of such Section:

 

“[Notwithstanding any provisions to the contrary under this Section 10 (Disclaimer of Warranties):

 

• Each Party represents and warrants to the other that (i) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (i) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of these Terms; and (iii) the execution, delivery and performance of these Terms does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and

 

• Company warrants that upon delivery the Products will conform materially in accordance with the applicable written or electronic documentation describing or specifying the functionality or limitations of the Products provided or made available by Company to Partner.]”

 

7. Limitation on Liability.

Section 11 (Limitation on Liability) of the Terms of Sale is hereby amended and replaced in its entirety as follows:

“11. Limitation on Liability.

(A) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(1) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, EQUITY HOLDERS, CONSULTANTS, AGENTS, INDEPENDENT CONTRACTORS, LICENSORS, SERVICE PROVIDERS, SUBLICENSEES, SUBCONTRACTORS, PARTNERS, ADVISORS, SUCCESSORS, ASSIGNS, AFFILIATES AND OTHER REPRESENTATIVES (“REPRESENTATIVES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND INCLUDING UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, NOR FOR ANY DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR GOODS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR REPUTATION, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY, LOSS OF TIME, INCONVENIENCE OR UNAUTHORIZED INTERCEPTION BY THIRD PARTIES INCLUDING OF ANY BUYER CONTENT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS OR LOSSES (“LOSSES”) INCLUDING ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD OR OTHERWISE LICENSED HEREUNDER;

 

(2) WITHOUT LIMITING THE FOREGOING, NEITHER PARTY (INCLUDING ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES) WILL BE LIABLE FOR LOSSES OF ANY KIND RESULTING FROM EITHER PARTY’S USE OF OR INABILITY TO USE THE SITE OR FROM ANY PRODUCTS INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED OR OTHERWISE PRESENT IN CONNECTION THEREWITH; AND

 

(3) EACH PARTY’S (INCLUDING ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES’) MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ALL LOSSES SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY BUYER TO EVENTGROOVE FOR THE SUBJECT ORDER(S) IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT.

(B) ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE ON BEHALF OF THE APPLICABLE PARTY (INCLUDING ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES).

 

(C) THE LIMITATIONS AND EXCLUSIONS CONTAINED IN SECTIONS 11(A) AND 11(B) SHALL NOT APPLY TO: BREACHES OF SECTION 4 (SHIPMENT, COST OF DELIVERY, TAXES AND OTHER CHARGES ), SECTION 5 (PAYMENTS), SECTION 7 (CUSTOMER RESPONSIBILITIES BEFORE PLACING ORDERS), BREACHES OF TRADE SECRET CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5 OF THE PARTNER AGREEMENT OR INTENTIONAL MISCONDUCT. THIS SECTION DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

(D) EACH PARTY UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THESE TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC PROVISIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.”

 

8. Indemnification.

Section 12 (Indemnification) of the Terms of Sale is hereby deleted and replaced in its entirety as follows:

“12. Indemnification

• Indemnification by Company. Company will indemnify and defend the Partner from and against any claim brought by a third party against Partner alleging that Partner’s sale of the Products (excluding Products that Display Buyer Content such as Custom Products) as permitted hereunder infringes or misappropriates a third party’s valid U.S. issued patent, registered copyright, registered trademark or trade secret (an “IP Claim”). Company shall, at Company’s expense, defend such IP Claim and pay damages finally awarded against Partner in connection therewith, including reasonable fees and expenses of attorneys engaged by Company for such defense, provided that (a) Partner promptly notifies Company of the threat or notice of such IP Claim; (b) Company will have sole, exclusive control and authority to select defense attorneys, defend or settle any such IP Claim (provided that Company shall not settle or compromise any claim that results in liability or admission of any liability by Partner without Partner’s prior written consent); and (c) Partner fully cooperates with Company in connection therewith. If use of the Products by Partner or any of its Customers has become, or, in Company’s opinion, is likely to become, the subject of any such IP Claim, Company may, at Company’s option and expense (i) procure for Partner the right to continue using the Products as set forth hereunder; (ii) replace or modify the Products to make them non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Company, revoke Partner’s right to use the infringing portion of the Products and provided a pro rata refund of fees paid to Company for the unused portion of such infringing portion of the Products on the condition that Partner immediately ceases using any such infringing portion of the Products and destroys any infringing Products. Notwithstanding any provision to the contrary herein, Company will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (w) compliance with or display of designs, data, names, trademarks, service marks, service or trade names, taglines, logos, other designations, photographs, displays, audio, video, documents, material, instructions, specifications, software or hardware provided by Partner or any of its Customers including content selected or provided by Partner or its Customers in the design, implementation or use of the Products including Buyer Content, the URL, graphics, illustrations, logos, marks, data, text, messages, applications, files, information, communications or other content input into any Products or provided to Company in the course of performing any Products (collectively “Partner Content”); (x) modification of the Products by or on behalf of anyone other than Company or Company Representatives; (y) third-party documents, data, content, information, material, Web pages, messages, text, designs, logos, images, artwork, graphics, photographs, displays, audio, video, services, functionality, technology, software, copyrights, trademarks or other tangible or intangible property that is not owned by Company (“Third Party Material”); or (z) the combination, operation or use of any of the Products with any Partner Content or Third Party Material where the Products would not by themselves be infringing. The provisions of this Section state the sole, exclusive and entire liability of Company to Partner and Partner’s sole remedy with respect to an IP Claim brought by reason of purchase of, access to or use of the Products by Partner or any of its Customers.

 

• Indemnification by Partner. Partner shall indemnify, hold harmless, and defend Eventgroove and its affiliates and its and their respective Representatives from and against any Damages resulting from any Claim arising out of or relating to (a) Partner’s breach of any representation, warranty or obligation under this Partner Agreement, Partner Content and breach by any Customer of any representation, warranty or obligation under the Terms of Sale including an allegation that Buyer Content infringes, misappropriates or otherwise violates any Intellectual Property Right, and (b) allegations of negligent or intentional acts on the part of the Partner, its affiliates or Customers or its or their respective Representatives.

 

9. Term; Termination.

 

1. This Partner Agreement is effective as of the Effective Date and shall continue for an initial term of three (3) years and will renew for successive one (1) year periods to the extent there is an active Order Form unless either Party provides the other Party written notice of non-renewal at least one hundred eighty (180) days prior to the date the then current term ends (the “Term”).
2. Either Party may terminate this Partner Agreement for no reason or any reason upon ninety (90) days’ prior written notice. Either Party may also terminate this Partner Agreement or an applicable Order Form if the other Party fails to cure a material breach of this Partner Agreement within ten (10) days after notice of such breach. Upon notice, Company may suspend Partner’s participation as a customer, partner or distributor for breach of this Partner Agreement or may terminate this Partner Agreement if Company determines in its sole discretion that termination is necessary to comply with applicable laws or to avoid liability or harm to its Products, business, prospects, reputation, customers, subscribers, licensees or to other third parties. Except where an exclusive remedy may be specified in this Partner Agreement, the exercise by either Party of any remedies (including termination) under this Partner Agreement are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
3. Upon any expiration or termination of this Partner Agreement, Partner shall (1) cease to be a customer, purchaser, Buyer, partner or distributor of the Products; (2) immediately cease all advertising, marketing, prospecting, distribution and other activities with respect to the Products; (3) cease use (to the extent use was permitted hereunder prior to expiration or termination) of the Products, documentation, other Company content, and any trademarks and return or destroy (as Company may direct in its sole discretion) any and all copies of such Products, documentation, other Company content, and any trademarks; (4) immediately pay Company any outstanding unpaid amounts; and (5) pay Company the amounts, if any, which are or become due under any Order accepted prior to the date of termination as such amounts become due.
4. Any Products sold or distributed prior to the termination or expiration of the Partner Agreement will survive in accordance with the terms of the Terms of Sale, provided that in no event may such Products be extended or renewed without the prior written consent of Company in its sole discretion. The Parties agree to continue cooperating to carry out an orderly termination of their relationship, and to the extent a purchaser or Buyer desires to purchase Products (including renewals or increasing its use of any Products) following termination of this Partner Agreement, Partner shall refer the Customer to Company and fully cooperate with Company in connection therewith without further compensation. Company will have no liability of any type arising from termination of this Partner Agreement in accordance with its terms to Partner, any of its Representatives or to any Customers or their Representatives. To the extent a purchaser or Buyer notifies Partner or Company that it wishes to terminate an Order with Partner prior to the end of the term of such Products as set forth in such Order and purchase Products through another partner, Company customer or distributor or Company, then Partner agrees to reasonably cooperate with Company in transferring applicable access or other requisite rights to the Products under the terminated Order to Company, Customer or Customer’s selected alternate partner or Company customer or distributor.
5. Survival. The provisions of the Terms of Sale and Sections 1 (Definitions), 3 (Partner Obligations), 4 (Non-Exclusive), 5 (Confidentiality), 7 (Limitation on Liability), 9(c)-(e) (Term; Termination), 10 (General; Amendments), 11 (Entire Agreement) of this Partner Agreement shall survive any expiration or termination of this Partner Agreement.

 

10. General; Amendments.

THE PROVISIONS OF THIS PARTNER AGREEMENT (INCLUDING ANY MODIFICATION TO THE TERMS AND CONDITIONS OF THE TERMS OF USE SET FORTH HEREIN) SHALL APPLY SOLELY TO PARTNER (SUBJECT TO PARTNER’S COMPLIANCE WITH THE TERMS HEREIN) AND COMPANY, AND THE UNMODIFIED TERMS AND CONDITIONS OF THE TERMS OF SALE (UNALTERED BY ANY TERMS OR CONDITIONS OF THIS PARTNER AGREEMENT) SHALL APPLY TO ANY CUSTOMER, BUYER OR OTHER ENTITY (EXCEPT FOR PARTNER) AND COMPANY.

 

The Products provided to Partner shall be deemed to include any customer support services indicated on the Order Form.

 

Each Party shall be responsible for its own compliance with applicable law.

 

No amendment to or modification of this Partner Agreement shall be effective unless it is in writing, identified as an amendment to this Partner Agreement and signed by authorized representatives of each Party.

 

11. Entire Agreement.

 

The second sentence of Section 21 (Miscellaneous) of the Terms of Sale is hereby amended and restated in its entirety as follows:

“[Except as provided under the Partner Agreement,] these Terms constitute the entire agreement between the Parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both Parties.”