THE INTERACTIVE MEETING TECHNOLOGY, LLC SOCIALPOINT AUDIENCE ENGAGEMENT PLATFORM SOFTWARE AND SERVICES ARE MADE AVAILABLE SUBJECT TO THIS AGREEMENT.  PLEASE REVIEW THIS AGREEMENT CAREFULLY.

NOTWITHSTANDING THE FOREGOING, IF CUSTOMER AND IMT  HAVE ENTERED INTO A WRITTEN MASTER SUBSCRIPTION AGREEMENT (“MSA”) AND SUCH MSA REMAINS IN EFFECT AS OF THE ORDER DATE, SUCH ORDER SHALL BE INCORPORATED INTO AND DEEMED A PART OF THE MSA.  IN SUCH EVENT, THESE TERMS OF SERVICE SHALL NOT APPLY AND THE MSA SHALL GOVERN.

THESE TERMS OF SERVICE are entered into by and between IMT and Customer effective as of the Effective Date.

WHEREAS, IMT provides access to certain software applications on a software-as-a-service basis along with related professional services; and

WHEREAS, Customer desires to acquire access to such software applications and professional services as more fully described in the Order, as set forth in and subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties further agree as follows: 

1. Definitions.

In addition to the terms defined elsewhere in this Agreement, the below terms shall have the following meanings:

1.1 “Agreement” means these Terms of Service collectively with any other documents expressly incorporated into these Terms of Service.

1.2 “Competitor” means an individual or entity that, directly or indirectly, solicits, attempts to solicit, licenses, develops, sells, provides or contracts with individuals or entities with respect to services or software that are substantially similar to the Services.

1.3 “Competitive Use” means benchmarking, monitoring or testing availability or performance, or any other competitive use, including, but not limited to, creating services or software that are substantially similar to the Services.

1.4 “Confidential Information” means any and all confidential, non-public or proprietary materials, information or data which is disclosed or otherwise made available by or on behalf of Disclosing Party in any form, including, but not limited to, development and/or financial plans, ideas, concepts, improvements, specifications, trade secrets, processes, know-how, computer programs, products, sales and marketing plans, financial statements and business plans, and/or product plans.  Confidential Information shall also include any other information that is designated as confidential or proprietary or should reasonably be considered confidential or proprietary. IMT’s Confidential Information shall also include, without limitation, the terms of this Agreement, Usage Data, Software and Documentation.

1.5 “Customer” means the individual or entity that is agreeing to this Agreement in order to access the Services by submitting the Order.

1.6 “Customer Data” means data, content and information provided, uploaded, submitted and/or collected by, on behalf of or through Customer in connection with the Services.  Customer Data shall not include the Services, Software, IMT’s Confidential Information, Third Party Products or IMT’s or IMT’s Agents’ data, content or information.

1.7 “Disabling Code” means computer code designed to interfere with the normal operation of the Services, the Software or IMT’s, IMT’s Agents’ or a third party’s hardware or software, or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse or trap door, which is designed to delete, disable, deactivate, interfere with or otherwise harm the Services, the Software or IMT’s, IMT’s Agents’ or a third party’s hardware or software.

1.8 “Disclosing Party” means the party that discloses or otherwise makes available Confidential Information to the Receiving Party.

1.9 “Documentation” means the technical documentation, manuals and user guides generally made available by IMT to its customers from time to time at help.socialpoint.io that describe the functionality of the Services, as updated from time to time.  Documentation shall not include demos, marketing materials, proposals or similar content or any documentation regarding Third Party Products.

1.10 “Effective Date” means the date of the Order Form or the date the online order form or order is submitted through the Site, as applicable.

1.11 “IMT” means Interactive Meeting Technology, LLC, a Minnesota limited liability company, its successors and assigns.

1.12 “IMT’s Agents” means IMT’s employees and contractors.

1.13 “IMT Parties” means IMT and its affiliates, employees, members, managers, governors, agents, contractors, suppliers, representatives, successors and assigns.

1.14 “Order” means the Order Form or the online order form or the order for Services submitted through the Site.

1.15 “Order Form” means an order form signed by an authorized representative of each party that refers to this Agreement.

1.16 “Receiving Party” means the party to which the Disclosing Party discloses or otherwise makes available Confidential Information.

1.17 “Services” means the services and the Software made available to Customer as specified in the Order and Section 2.3 below.  The Services shall not include Third Party Products.

1.18 “Site” means IMT’s websites on which Orders can be placed from time to time, including, without limitation, www.socialpoint.io.

1.19 “Software” means the software products owned by IMT which shall be made available to Customer on a software-as-a-service basis through the Services.  Software shall include any new releases, updates, upgrades and modifications which IMT makes generally available to its customers, subject to this Agreement.  Software shall not include Third Party Products.

1.20 “Third Party Products” means services, software and products that are owned, performed and/or supplied by a party other than IMT.

1.21 “Usage Data” means data or information that is collected by IMT about Customer’s, User’s and/or participants’ use of the Software or Services or is derived from Customer’s  or User’s use of the Software or Services; provided such data or information is aggregated, de-identified and anonymized.

1.22 “User” means an individual employee or contractor of Customer who is authorized by Customer to access or use the Software and has been issued a unique username and password for the Software by Customer’s designated administrator.

2. Access to Services.

2.1 Services.  As long as Customer is current with its payment obligations, Customer may access and use the Services during the Subscription Term solely for Customer’s internal business purposes and in accordance with the terms of this Agreement.  The Services shall be provided in accordance with the terms and conditions of this Agreement.  All of Customer’s rights to the Services are subject to Customer’s compliance with the terms of this Agreement.

2.2 Support Obligations.  During the Subscription Term (as defined below), IMT shall directly or indirectly provide remote standard support related to the operation and functionality of the Software through the chat functionality of the Software from Monday to Friday between 9:00 a.m. and 5:00 p.m. (EST), subject to any support policy adopted or modified by IMT from time to time.  If IMT agrees to provide additional support, Customer shall pay the Fees for such additional support set forth in the Order, or, if no Fees are set forth in the Order, the Fees shall be IMT’s then current time and materials rates.  As between IMT and Customer, Customer is solely responsible for (i) purchasing support services for any Third Party Products, and (ii) licensing and/or purchasing additional Third Party Products necessary to access and use any new releases, updates, upgrades and modifications of or to the Services.  IMT does not support Third Party Products.  IMT shall have no obligation to provide support or maintenance relating to matters outside of the operation and functionality of the Software, including, without limitation, issues arising from Customer’s hardware, software, network or operating systems.

2.3 Hosting Obligations.  IMT shall use reasonable efforts to make the Software available except for (i) planned outages, which IMT shall use reasonable efforts to schedule outside of normal business hours and to provide advance electronic notice to Customer through the Software or otherwise, (ii) regular and emergency maintenance, which may be performed with or without notice, and (iii) those events described in Section 15 below.  IMT shall have no liability due to unavailability of the Software from these excluded events.

2.4 Fees.  Customer shall pay all fees set forth in the Order and reimburse IMT for all reasonable expenses incurred by IMT related to the performance of Services (collectively, “Fees”).  Unless otherwise specified in the Order, all Fees are due and payable on the Effective Date and must be prepaid in full prior to IMT’s performance and Customer’s access to or use of the Services.  Unless otherwise specified in the Order, Fees for additional services (i.e. Services not expressly included in the Order or Sections 2.3 above) that are requested by Customer and performed by IMT shall be invoiced in arrears at IMT’s then current time and materials rates.  All amounts paid by Customer are nonrefundable except as expressly set forth in this Agreement.  As between IMT and Customer, Customer shall be exclusively responsible for (i) payment of (or reimbursement for) any applicable taxes with respect to the Services; provided that Customer shall not be liable for any taxes based on IMT’s net income, and (ii) all expenses incurred by Customer in connection with this Agreement.

2.5 Disputes. If Customer disputes any statement of Fees or portion of any invoice, Customer shall notify IMT within ten (10) days from the date of receipt of such statement or invoice (and in any event prior to payment) with sufficient detail to allow the parties to resolve the dispute in good faith; otherwise, such amounts shall be deemed approved and undisputed for all purposes.  Overdue amounts shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, until paid.  In the event that any amounts become more than ten (10) days overdue, IMT may suspend its performance of the Services and/or Customer’s access to or use of the Services.  IMT shall have no liability due to such suspension.  Customer shall be responsible for all charges, fees and expenses (including, but not limited to, reasonable attorney’s fees) incurred by IMT in enforcing or attempting to enforce Customer’s payment obligations hereunder, regardless of whether suit is commenced.

3. Customer Data, Ownership and Restrictions.

3.1 Customer Data and Information.

3.1.1 Ownership.  IMT acknowledges and agrees that as between IMT and Customer, Customer is and shall remain the exclusive owner of Customer Data and all patent, copyright, trade secret, trademark and other intellectual property rights therein.  Customer is solely responsible for the accuracy, integrity and reliability of Customer Data.

3.1.2 Processing.  IMT agrees to maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Customer Data. In respect to Customer Personal Information (as defined in the DPA), IMT’s Data Processing Addendum, which is available at https://www.socialpoint.io/data-processing-addendum/ (the “DPA”), is hereby incorporated herein by reference and deemed a part hereof. Notwithstanding anything to the contrary in this Agreement or the DPA, IMT may collect and use Usage Data to develop, improve, support, and operate the Services.

3.1.3 Use and Deletion of Customer Data.  Customer hereby grants to IMT and its contractors and suppliers a non-exclusive license to use, host, sublicense, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, Customer Data as necessary to provide the Services, as specified under Third Party Licenses (as defined below), or as otherwise permitted by this Agreement.  Customer shall have sixty (60) days from the expiration or termination of this Agreement to copy, export or download Customer Data from the Services.  After such period of time, IMT may delete or destroy such Customer Data.  IMT shall have no liability for such deletion or destruction.

3.1.4 Marks.  Customer grants to IMT and its contractors and suppliers a non-exclusive license to use Customer’s names, logos and/or marks solely to the extent necessary to provide the Services.  IMT acknowledges that Customer is the owner of such names, logos and/or marks and agrees to include any reasonable mark notice specified by Customer in writing to IMT.  IMT further agrees that its use of any such names, logos and/or marks shall inure to the benefit of Customer.

3.1.5 Customer Feedback.  Notwithstanding the foregoing, if Customer provides any suggestions, recommendations, feedback, improvements or similar matters related to the Services, including, without limitation, the Software, to IMT or IMT’s Agents, Customer hereby grants, and/or warrants that the owner has expressly granted to IMT, a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, transferable, sublicensable license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, such matters in any media or medium, or any form, format or forum now known or hereafter developed.

3.1.6 Customer Identification.  Unless otherwise requested by Customer either in a written notice under Section 14 below, IMT may use Customer’s name, logo and/or marks to identify Customer as a customer of IMT in IMT’s customer lists, on IMT’s website or in IMT’s similar materials.

3.2 Ownership.  Customer acknowledges and agrees that as between Customer and IMT, IMT is and shall remain the exclusive owner of the Services (including, without limitation, the Software), IMT’s Confidential Information, IMT’s marks, names, logos, work product, content, data, services, products, software, hardware and related materials and information, and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Customer shall not challenge or assist any third party to challenge IMT’s ownership or the validity or enforceability of such rights.  Except as expressly granted by IMT in this Agreement, no rights or obligations are to be implied from this Agreement and no license is hereby granted, directly or indirectly, under any patent, trade secret, trademark, copyright or other intellectual property right now held by, which may be obtained by or which are or may be licensable by IMT. IMT expressly reserves all rights not expressly granted by IMT in this Agreement.

3.3 Proprietary Materials.  Customer acknowledges that the Services are proprietary to IMT and are protected by intellectual property and other laws.  Customer further acknowledges that Third Party Products are proprietary to their respective suppliers and are protected by intellectual property and other laws.  Customer agrees not to change or delete any copyright or proprietary notices contained on or provided through the Services or Third Party Products.

3.4 Restrictions on Use.  Customer and Users shall not, and shall not assist any third party to, (i) sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any part of the Services, Third Party Products or Documentation except as expressly permitted in this Agreement, (ii) decompile, reverse engineer or otherwise attempt to discover any underlying code which is part of the Services or Third Party Products or have any right to receive a copy of any source code, (iii) use the Services, Third Party Products or Documentation other than in accordance with this Agreement and the Documentation, in an unauthorized manner or in a manner that would interfere with or disrupt the accuracy, integrity and reliability of the Services or IMT’s and/or IMT’s Agents’ hardware or software, (iv) export any part of the Services, Third Party Products or Documentation outside of the United States without IMT’s prior written consent and in accordance with applicable law, (v) use the Services or Third Party Products to post, upload or transmit any Disabling Code or any data, content or materials of any type that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or similar rights of IMT or a third party or that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret or any proprietary or other right of IMT or a third party, and/or (vi) copy the Documentation other than as necessary for use of the Services.

3.5 Accessibility.  As between IMT and Customer, Customer shall be solely responsible for (i) providing, maintaining and ensuring compatibility with the access requirements for the Services, and all hardware, software, electrical or other physical requirements for use of the Services, including, without limitation, telecommunications and internet service provider access, connections, links, web browsers or other equipment, programs and services required to use the Services, and (ii) obtaining and maintaining any necessary consents or authorizations in connection with Customer Data.

3.6 User Accounts.  Each User may not have more than one (1) User account and may not share his or her password with any third party.  The security, confidentiality and integrity of each User account and password is Customer’s sole responsibility and Customer agrees to bear all liability for the same as well as all use and/or charges incurred from use of the Services with all User accounts and/or passwords, including, but not limited to, unauthorized charges.  Customer shall take all reasonable steps to ensure that no unauthorized person shall have access to User accounts or passwords and shall immediately notify IMT of any unauthorized access or use of which Customer becomes aware.  Notwithstanding anything to the contrary, Customer hereby authorizes IMT to use, sublicense and disclose User account information (i) if required by applicable law or where necessary to enforce this Agreement and/or to protect any of IMT’s or other parties’ legal rights, and (ii) in an aggregated form which does not include User-identifying information.

4. Third Party Terms.

Access to the Services may include hardware, software elements and other proprietary materials from IMT’s third party suppliers that are subject to license rights and restrictions (collectively, the “Third Party Licenses”).  In such event, Customer’s rights to and the provision of the Services are expressly subordinate and subject to the Third Party Licenses.  The Third Party Licenses shall be made available through the User portal in the Software, and where commercially reasonable, IMT will provide copies of the Third Party Licenses upon written request.  By agreeing to this Agreement, Customer acknowledges access to and an opportunity to review the Third Party Licenses.  If IMT’s rights provided by a third party supplier are limited, suspended or terminated for any reason, the rights of Customer shall also be so limited, suspended or terminated.  To the extent of any conflict between the terms of this Agreement and the terms of a Third Party License, the terms of the Third Party License shall control with respect to the applicable Third Party Product.

5. Term and Termination.

5.1 Term.  Unless otherwise specified in the Order, this Agreement will commence upon the Effective Date and shall remain in effect through the subscription end date specified in the Order, unless earlier terminated in accordance with the terms of this Agreement.  The period of time during which Customer may access and use the Services (the “Subscription Term”) shall commence on the subscription start date and continue through the subscription end date, each as specified in the Order; provided that Customer may also have limited rights to access certain parts of the Services before and after the Subscription Term but only as expressly set forth in this Agreement.  The subscription start date cannot be more than six (6) months from the Effective Date.  The Subscription Term shall only be subject to renewal if and as expressly specified in the Order.

5.2 Termination.  Either party may terminate this Agreement for cause if (i) the other party breaches a material term or condition of this Agreement and fails to cure such breach within ten (10) days of receipt of written notice of the breach for payment breaches or thirty (30) days of receipt of written notice of the breach for other obligations, (ii) the other party makes an assignment of all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors (collectively “Petitions”), if such Petitions are not dismissed within sixty (60) days of filing, or (iii) the other party fails to inform the terminating party of a Petition in writing within five (5) business days of the filing of the Petition.  In addition, IMT may terminate this Agreement on written notice to Customer prior to the subscription start date.  In such event, Customer’s sole and exclusive remedy shall be for IMT to return the Fees actually paid by Customer.

5.3 Effect of Termination.  Upon termination of this Agreement, (i) Customer’s rights to access and use the Services and other rights under this Agreement shall immediately terminate, (ii) Customer shall return to IMT all IMT Confidential Information received by Customer (and all copies and reproductions thereof), or, if IMT so requests, immediately destroy any such IMT Confidential Information (and all copies and reproductions thereof), and certify such return and/or destruction to IMT, and (iii) Customer shall pay IMT for all Fees not yet paid by Customer.

6. Representations and Warranties.

Customer represents and warrants that (i) this Agreement constitutes the legal, valid and binding obligation of Customer enforceable against Customer in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) Customer has all requisite authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by Customer, (iii) Customer’s signature and delivery of this Agreement and Customer’s performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which Customer is bound or to which its properties are subject, (iv) Customer shall comply with all applicable laws related to Customer’s performance under this Agreement, (v) Customer owns or has the rights and/or authorization necessary for IMT to use Customer Data under this Agreement and to provide the Services, and (vi) Customer is not a Competitor and shall not attempt to engage in or engage in, or assist a third party to attempt to engage in or engage in, any Competitive Use of the Services.

7. Confidential Information.

7.1 Confidentiality Obligations.  Receiving Party shall (i) keep all Confidential Information confidential, (ii) use Confidential Information only to the extent permitted under this Agreement or as otherwise necessary to fulfill its obligations under this Agreement, (iii) use the same degree of care Receiving Party uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information, (iv) not “reverse engineer,” make derivatives or adaptations of, duplicate or copy in any fashion any Confidential Information, in whole or in part, without the prior written consent of IMT, (v) immediately notify Disclosing Party of any use or disclosure of Confidential Information not permitted by this Agreement of which Receiving Party becomes aware, and (vi) only disclose or otherwise make available Confidential Information to its employees and contractors who must each have a need to know, provided that Receiving Party informs all such employees of the obligations under this Agreement and any such contractors are obligated in writing to comply with duties of confidentiality and non-disclosure at least as protective of Confidential Information as this Agreement. IMT may also disclose Customer’s Confidential Information to its affiliates, contractors, suppliers and sub-processors and their employees and contractors to make available the Services and Software and perform its obligations under this Agreement.

7.2 Exceptions.  Receiving Party shall have no obligation to preserve the confidentiality of any information which (i) is or becomes publicly available by any means other than unauthorized disclosure, or (ii) is independently developed by Receiving Party without reliance on any Confidential Information.  Receiving Party shall bear the burden of proof for relying on any of the foregoing exceptions.  Notwithstanding anything to the contrary, in the event that Receiving Party is legally compelled to disclose any Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, Receiving Party may disclose such Confidential Information, provided that Receiving Party (a) notifies IMT as soon as practicable prior to making such legally compelled disclosure, (b) provides any reasonably requested assistance to Disclosing Party in obtaining a protective order, and (c) only discloses that portion of  Confidential Information that, in the opinion of Receiving Party’s legal counsel, it is legally compelled or otherwise required to disclose. Notwithstanding anything to the contrary, it shall not be a breach of this Agreement for a party to disclose the existence or the terms of this Agreement in order to enforce the terms hereof.

8. Indemnification.

8.1 Indemnification by Customer.  To the fullest extent permitted by law, Customer shall indemnify, defend and hold IMT Parties harmless from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, counterclaims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees) (collectively, “Claims”) arising out of or related to (i) Customer’s access to and use of the Services, (ii) Customer’s breach of the terms of this Agreement, and/or (iii) claims that any Customer Data or Customer’s or its supplier’s other hardware, software or products (or the provision of the Services in connection therewith) violate or in any way infringe on any patent, copyright, trademark, trade secret or any proprietary or other right of a third party.  Customer may not settle any such Claim(s) without the consent of IMT where the settlement involves a remedy other than the payment of money.  IMT shall provide reasonably requested assistance at Customer’s expense to enable Customer to defend Claim(s).  IMT may participate in the defense or settlement of any Claim(s).

8.2 Indemnification by IMT.  IMT shall indemnify, defend and hold Customer harmless from and against all Claims to the extent arising out of a third party’s claim that the Software owned by IMT infringes its valid United States patent, copyright, trade secret or other intellectual property rights. Customer shall (i) promptly notify IMT in writing of any Claim of which it becomes aware, (ii) permit IMT sole control to defend, compromise or settle such Claim, and (iii) provide reasonable information, assistance and authority (at IMT’s reasonable expense) to enable IMT to defend such Claim. Subject to the foregoing, Customer may otherwise participate in the defense or settlement of such Claim at its own expense. If the Software is held or is reasonably believed by IMT to infringe a third party’s patent, copyright, trade  secret or other intellectual property rights, IMT may, in its sole discretion, (a) modify the Software so that it is non-infringing, (b) replace the infringing portion of the Software with a non-infringing substitute of similar functionality, (c) obtain a license for Customer to continue to use the Software, and/or (d) terminate the Order or affected portion thereof upon thirty (30) days notice and provide Customer a prorated refund of any prepaid Fees for the terminated portion of the Order based on the remaining period for which such Fees apply. This Section 8.2 shall not apply to the extent the applicable Claim arises out of a Third Party Product, Customer’s breach of this Agreement, acts or omissions other than by IMT or IMT’s Agents, a modification of the Software by anyone not expressly authorized by IMT, use of a non-current release of the Software, or use of the Software with any other services, hardware or software not provided by or through IMT. THIS SECTION 8.2 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND IMT’S SOLE LIABILITY FOR ANY THIRD PARTY CLAIM THAT THE SOFTWARE INFRINGES A THIRD PARTY’S PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.

9. Disclaimer and Limitation of Liability.

9.1 Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IMT PARTIES DO NOT MAKE AND THEY HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO THE SERVICES, OR WITH RESPECT TO ANY INFORMATION OR OTHER MATERIALS RELATED TO OR PROVIDED THROUGH THE SERVICES AND THEY ARE ALL PROVIDED ON AN “AS IS” BASIS.  ALL THIRD PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS AND IMT PARTIES DO NOT MAKE AND THEY HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO THIRD PARTY PRODUCTS.

9.2 Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IMT PARTIES BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES EXCEPT TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER, NOT TO EXCEED THE FEES PAID BY CUSTOMER TO IMT UNDER THE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.  THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT.  Customer must bring any claims arising in connection with this Agreement or the Services within one (1) year of the date of the cause of action accrued.

9.3 Acknowledgement. CUSTOMER AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY.  SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE MAY NOT APPLY TO CUSTOMER.

10. Relationship.

The parties are independent contractors, and nothing in this Agreement shall be construed to make the parties partners, joint venturers, representatives or agents of each other, nor shall either party so represent to any third person.  No employer-employee relationship is intended to be created by this Agreement.  IMT Agents may perform or provide the Services (or any portion thereof) in IMT’s sole discretion.  IMT acknowledges and agrees that it is responsible for any Services performed or provided by IMT’s Agents as if IMT performed or provided such Services hereunder.  IMT is solely responsible for the payment of any compensation to IMT’s Agents, including taxes, contributions and benefits.  Customer will not have any obligation to directly pay any amount to IMT’s Agents, including, but not limited to, “overtime” or premium payments.  Customer acknowledges and agrees that it is responsible for all acts and omissions of Users and its and their employees, contractors and agents.  All acts and omissions of Users and Customer’s employees, contractors and agents shall be deemed Customer’s acts and omissions.

11. Compliance with Applicable Laws.

Customer agrees that Customer will not use the Services in violation of federal, state or local law or other applicable rules or regulations. If Customer accesses the Services from outside the United States, Customer does so at Customer’s own risk and responsibility for compliance with laws of Customer’s jurisdiction.

12. Governing Law and Disputes.

This Agreement shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles.  Any action arising out of or relating to this Agreement shall be brought only in the state or federal courts of Hennepin County, Minnesota, and all parties expressly consent to such courts’ jurisdiction and irrevocably waive any objection with respect to the same.

13. Entire Agreement and Amendment.

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof.  There are no warranties, representations or agreements among the parties with respect to the subject matter hereof, except as set forth or referred to herein.  The Order Form shall be incorporated herein by reference and deemed a part hereof upon signature by an authorized representative of each party, or, if applicable, the Order submitted through the Site shall be incorporated herein by reference and deemed a part hereof upon the Effective Date.  To the extent of any conflicts between this Agreement and an Order, the terms of the Order shall control except where an Order expressly states that it modifies a specific provision of this Agreement in which event the terms of such Order will control but only with respect to such Order.  This Agreement may not be amended except in a writing that is duly signed by the parties hereto.

14. Notices.

Except as otherwise provided, notices under this Agreement shall be in writing and shall be deemed given when (i) delivered personally, (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, (iii) sent via email, or (iv) upon written confirmation of delivery by recognized international carrier sent by overnight service, to the respective party as set forth below.  A party may change its notice address upon five (5) days written notice to the other party.

To IMT:

Interactive Meeting Technology, LLC

Attn: IMT Legal Notices

P.O. Box 50

Le Sueur, MN 56058

Email: info@interactivemeetingtechnology.com

To Customer:   As set forth in the Order.

15. Force Majeure.

IMT shall not be responsible for delays or failures of performance resulting from acts beyond their reasonable control. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, delays or failures of Third Party Products, power failures, earthquakes and other disasters.  In such an event, the delayed party shall use reasonable efforts to resume performance.

16. Equitable Relief.

It is recognized that damages in the event of a breach or threatened breach of certain provisions in this Agreement will be difficult, if not impossible, to ascertain.  It is therefore agreed that either party, in addition to, and without limiting, any other remedy or right that it might have, shall have the right to an injunction against the other party issued by a court of competent jurisdiction, enjoining the other party from violating the provisions of this Agreement. This Section 16 shall not limit any remedies otherwise available to the parties.

17. Miscellaneous.

Section and subsection headings are not to be considered part of this Agreement.  They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof.  Customer may not assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of IMT, and any attempted assignment without IMT’s prior written consent shall be null and void.  For the avoidance of doubt, IMT may assign this Agreement, or any of its rights or obligations hereunder, in the event of a merger or the transfer of all or substantially all of such party’s assets or such party’s restructuring.  All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Should any provision of this Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of this Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force and effect. Nothing in this Agreement is intended to confer upon any person other than the parties hereto and any third party beneficiaries identified herein, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement.  Each of the parties hereto have been represented by independent legal counsel or afforded the opportunity of representation by independent legal counsel.  Any sections (or portions thereof) that either expressly by their terms, or in order to give full effect to their provisions must, survive the expiration or termination of this Agreement, shall so survive. Either party’s failure to insist upon strict enforcement of any provisions of this Agreement shall not be construed as a waiver of any provision or right.  To be effective, any such waiver must be in writing and signed by the waiving party, and shall be effective only in the specific instance and for the specific purpose for which given. Customer agrees to sign and deliver such other documents, instruments and agreements and to take such further action as is reasonably requested by IMT to consummate or to evidence the consummation of the transactions contemplated herein.