FREE TRIAL AGREEMENT
BY CLICKING THE "I AGREE" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE ACTEVA RSVPsm ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS AND ALL ASSOCIATED TECHNOLOGY AND ANCILARY SERVICES (COLLECTIVELY, THE "SERVICE"). 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND SUCH ENTITY AGREES TO ENSURE THAT ITS EMPLOYEES, AND OTHER INDIVIDUALS THAT OBTAIN ACCESS TO THE SERVICE THROUGH ITS FACILITY(IES) AND/OR OWNED AND/OR LEASED EQUIPMENT, COMPLY WITH ITS OBLIGATIONS PURSUANT TO THE AGREEMENT AS IF THEY WERE THE ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
Your completion of the registration process for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement and the Privacy Policy of Web2Web Marketing, Inc., a Delaware corporation dba Acteva.com (hereafter “Acteva”), , having its principal place of business at 60 Spear Street, 9th Floor, San Francisco, California 94105, as updated from time to time, which are incorporated herein by this reference and are available on the www.actevarsvp.com website.
1. License Grant and Restrictions
Acteva hereby grants you a non-exclusive, non-transferable, worldwide (in countries where use of the Service is not prohibited by the laws of the United States of America) license to use the Service, solely for your own internal business purposes (provided such internal business purposes are not competitive with the current and/or future business of Acteva), within the limitations applicable to the version to which you have subscribed, during the 30 consecutive day period commencing upon your completion of the registration process (“License Term”), and subject to the terms and conditions of this Agreement. Thereafter, in order to use the Service, you must purchase the appropriate paid subscription for such use. All rights not expressly granted to you are reserved by Acteva and its licensors.
You agree not to access the Service if you are a competitor of Acteva. In addition, you agree not to access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You agree not to: (i) license, sublicense, sell, resell, transfer, assign, or distribute the Service to any third party; (ii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You agree not to interfere with or disrupt the integrity or performance of the Service or the data contained therein or attempt to gain unauthorized access to the Service or its related systems or networks.
2. Your Responsibility to Monitor Usage of the Service
You agree to be held completely and exclusively responsible for all activity occurring under your user account(s) and to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including, but not limited to, copyright, privacy, spam, export control, and obscenity laws and regulations. Additionally, you agree not to use the Service for any illicit and/or immoral purpose(s) or in any way that might damage the reputation of Acteva, including, but not limited to, incorporating any pornographic material within any e-mails or registration pages you build using the Service. You agree to notify Acteva immediately of any known or suspected breach of the terms of this Agreement or violation of any law(s) and/or regulation(s) by you or your users and immediately make all reasonable efforts to stop and mitigate the effects of such breach(es) and/or violation(s) and prevent future breaches and/or violations.
3. Customer Data
Acteva does not own any data, information or material ("Customer Data") that you submit to the Service in the course of using the Service. You, not Acteva, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and IP Rights ownership of and/or right to use all Customer Data. For purposes of this Agreement, “IP Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. You hereby warrant to Acteva your ownership of the IP Rights for all Customer Data and/or your right to use such data in conjunction with the Service. You agree you are completely and exclusively responsible for maintaining back up copies of Customer Data and other disaster recovery tasks with respect to the Customer Data and Acteva shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any/all Customer Data. You agree and acknowledge that Acteva has no obligation to retain the Customer Data, and may irretrievably delete all Customer Data upon the expiration of the License Term and/or termination of this Agreement.
4. Intellectual Property Ownership
You acknowledge that the Service, constitutes Acteva’s exclusive proprietary information and technology (and its licensors, where applicable) and all rights, title, and interest in and to the Service, including, but not limited to, all related IP Rights, shall at all times be and remain exclusively the property of Acteva (and its licensors, where applicable). You hereby agree that all rights, title, and interest including, but not limited to, all related IP Rights, in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service (collectively referred to as “Product Suggestions”) shall automatically be assigned to and remain irrevocably the sole property of Acteva. You hereby agree to sign any documents necessary for Acteva to perfect its ownership rights, including, but not limited to IP Rights and any Product Suggestions you make to Acteva and represent and warrant that all such Product Suggestions are original and that you have ownership of all rights in such Product Suggestions necessary for you to make the assignment listed above. This Agreement is not intended to and does not convey to you any rights of ownership in or related to the Service and/or the IP Rights owned by Acteva and/or its licensors. The Acteva and ActevaRSVP name, the Acteva and ActevaRSVP logo, and the product names associated with the Service are trademarks of Acteva or third parties, and no right or license is granted to use them.
5. Warranties
Each party represents and warrants that it has the capacity and authority to enter into this Agreement. You represent and warrant that you are not located in, under the control of, or a national or resident of a country(ies) to which the United States maintains an embargo. You also warrant that you are not a person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders and that the Service and/or any information acquired through the use of the Service, will not be used for nuclear activities, chemical or biological weapons or missile projects, or any other illegal use or use not consistent with the purpose of this Agreement, unless specifically and expressly authorized by the United States government for such purposes.
6. Indemnification
Acteva shall have no indemnification obligation under this Agreement. You agree to indemnify and hold Acteva, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and/or warranties; (iii) a claim arising from the breach by you or your users of this Agreement; or (iv) a claim arising from any infringement, including, but not limited to, copyright, and/or trademark, and/or patent infringement, arising from your combination of the Service with any of your and/or a third party’s(ies’) product(s), service(s), hardware or business process(es).
7. Disclaimer of Warranties
EXCEPT FOR ACTEVA’S WARRANTY SPECIFICALLY LISTED IN SECTION 5, ACTEVA AND ITS LICENSORS MAKE NO REPRESENTATION(S), GUARANTY(IES), OR WARRANTY(IES) AS TO ANY MATTER WHATSOEVER. THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ACTEVA AND ITS LICENSORS.
8. Limitation of Liability
YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT ACTEVA IS PROVIDING THE SERVICE SOLELY FOR TRIAL AND EVALUATION AND WITH THE EXCEPTION OF LIABILITY FOR DEATH AND/OR PERSONAL INJURY AND/OR LIABILITY FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION(S) PURSUANT TO SECTION 6, UNDER NO CIRCUMSTANCE(S) SHALL EITHER PARTY (INCLUDING ITS/THEIR LICENSOR’S(S’)) BE LIABLE FOR ANY DAMAGES, DIRECT OR INDIRECT, INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM AND/OR CONNECTED WITH YOUR USE OF THE SERVICE AND/OR THE MARKETING, DELIVERY, INSTALLATION, FURNISHING MAINTENANCE OR SUPPORTING OF THE SERVICE BY ACTEVA (OR ITS LICENSOR(S), IF APPLICABLE). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER SUCH INCIDENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE PARTIES TO THIS AGREEMENT HEREBY AGREE THAT THE LIMITATIONS ON AND EXCLUSIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WERE FREELY NEGOTIATED AND ARE AN INTEGRAL PART OF THE BARGAIN IN THAT THE SERVICE ORDERED PURSUANT TO THE TERMS OF THIS AGREEMENT WOULD NOT HAVE BEEN AVAILBLE FOR THE SAME PRICE AND UNDER THE SAME TERMS AND CONDITIONS HAD SUCH LIMITATIONS ON AND EXCLUSIONS OF LIABILITY NOT BEEN INCLUDED IN THIS AGREEMENT. IF FOR ANY REASON ANY OF THE FOREGOING LIMITATIONS ON AND/OR EXCLUSIONS OF LIABILITY ARE VOIDED OR ARE NOT EFFECTIVE, THE PARTIES AGREE THAT WITH THE EXCEPTION OF LIABILITY FOR DEATH AND/OR PERSONAL INJURY AND/OR LIABILITY FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION(S) PURSUANT TO SECTION 6, EACH PARTY'S (INCLUDING ITS/THEIR LICENSOR’S(S’)) AGGREGATE LIABILITY RELATED TO THIS AGREEMENT, IF ANY, SHALL NOT EXCEED $50 DOLLARS.
9. Termination and Survival.
Acteva may terminate this Agreement and your access to the Service, at its sole discretion, at any time with immediate effect by sending an e-mail to the contact e-mail address given by you as part of the registration process. This Agreement shall automatically terminate upon the expiration of the License Term. Any terms of this Agreement which by their nature should extend beyond its termination shall remain in effect, and apply to the parties and respective successors and permitted assignees, including, but not limited to, the terms and provisions of sections 4, 6, 7, 8, and 9.
10. General Provisions
This Agreement may not be assigned by you without the prior written approval of Acteva.
This Agreement is governed by the internal laws of the State of California, without consideration of conflict of laws provisions. If any dispute arises under the terms of this Agreement and the parties cannot resolve such dispute, the parties agree to submit the dispute to binding arbitration. The arbitration shall be held under the auspices of the American Arbitration Association (“AAA”). The parties agree to file any complaint or grievance within one year of the complained of activity. The arbitration shall be in accordance with the AAA's then-current procedures or equivalent. The arbitrator shall be either a retired judge, or an attorney who is experienced in contract disputes and licensed to practice law in the State of California ("the Arbitrator"). The arbitration shall take place in the City and County of San Francisco. The parties shall equally share the fees and costs of the Arbitrator. Each party will deposit funds or post other appropriate security for its share of the Arbitrator's fee, in an amount and manner determined by the Arbitrator, ten (10) days before the first day of the hearing. The Arbitrator shall award attorneys' fees and costs to the prevailing party or the substantially prevailing party. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award.
Arbitration shall be the exclusive final remedy for any dispute between the parties, however, the terms of this section 10 shall not prevent Acteva from seeking injunctive relief when it deems it necessary to prevent your further breach of your obligations pursuant to this Agreement.
No text or information set forth on any purchase order, preprinted form or document (other than an Acteva order form acceptable to Acteva, if applicable) shall add to or vary the terms and conditions of this Agreement with the exception of Acteva texts, information and materials described and/or referred to in this Agreement.
Order forms may not be altered by you, except by filling in the information requested on such forms, without the express written permission of an authorized representative of Acteva on a separate document.
If any provision(s) of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties hereto with respect to the invalid or unenforceable provision(s), with all other provisions of the Agreement remaining in full force and effect.
The section headings contained in this Agreement are provided for reference purposes only and shall not affect the construction and interpretation of this Agreement.
No joint venture, partnership, employment, or agency relationship exists between you and Acteva as a result of this Agreement and/or use of the Service.
The failure of Acteva to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by an authorized representative of Acteva in writing.
This Agreement, together with any applicable order form acceptable to Acteva and the Privacy and Security Policies of Acteva, comprises the entire agreement between you and Acteva and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
The parties to this Agreement shall promptly execute and deliver any and all additional documents, instruments, notices, and other assurances, and shall do any and all other acts and things, reasonably necessary in connection with the performance of their respective obligations under this Agreement and to carry out the intent of the parties. All notices, communications, and consents required to be given to Acteva must be in writing and addressed to Acteva to be notified at their address set forth below, or as later designated in writing:
Acteva:
Ed Lemire
Web2Web Marketing, Inc.
60 Spear Street, 9th Floor
San Francisco, CA 94105
With a copy to:
Law Offices of Joshua A. Ridless
244 California Street, Suite 300
San Francisco, CA 94111
Fax: (415) 480-1398
11. Modification to Terms
Acteva reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement regarding the Service. You agree to review any revisions to this Agreement. Your continued use of the Service after any modification to this Agreement constitutes your consent to such changes and your consent to be bound by the terms in the modified Agreement. If there are any discrepancies between a version of this Agreement and a more recent version of this Agreement the most recent version of this Agreement shall prevail.
12. Questions
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support@actevarsvp.com.
All rights reserved. Web2Web Marketing, Inc., 60 Spear Street, 9th Floor, San Francisco, CA 94105
