Agreement

SOFTWARE-AS-A-SERVICE AGREEMENT

This SOFTWARE-AS-A-SERVICE AGREEMENT (the “Agreement”) is made as of the Effective Date set forth on the Statement of Work hereto (the “SOW”) by and between Invitext Technologies LLC, located at 7 Mallard Place, Secaucus, NJ 07094 (“Company,” “we,” “us,” or “our”) and (“Customer,” “you,” or “your”) as of the Effective Date (as defined by the latest date in the signature block of the Statement of Work or SOW. Invitext Technologies and Customer hereby agree to the following terms and conditions:

1. Service; Licenses.

a. Company will provide Customer with a white label version of Company’s mobile application and Software-as-a-Service product (collectively, the “Service”).

b. Company will customize the Service in consultation with Customer. Customer agrees to provide Company will all materials necessary and/or requested by Company in order to customize the Service, including without limitation Customer’s logo, brand, colors, marketing materials, and information relating to the relevant Event(s), as defined below (including without limitation location and timing of the event, seating charts, and relevant Event details) (collectively, the “Customer Data”). Customer agrees to provide all such Customer Data, at most, 15 days of the Effective Date of this Agreement. Customer acknowledges and agrees that failure to provide Customer Data within this time frame may delay the provision of Company’s services, and may otherwise interfere with the Event and/or Customer’s use of the Service. Customer hereby grants to Company a non-exclusive, nontransferable, nonsublicensable, license to use Customer Data as follows:

i. in the provision of the services under this Agreement; and

ii. in the Company’s marketing materials and otherwise to promote the Service and the services provided by Company.

c. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a non-exclusive, nontransferable, nonsublicensable, revocable license to use the Service during the term of this Agreement (the “Company License”), as follows:

i. The Company License will allow Customer to (A) use the Service for one or more events, as specified on Schedule A (each, an “Event”), and (B) provide the Service to Customer’s own customers and/or guests of the Event (collectively, the “Guests”). The Service will be provided in a white-label format, such that Customer may add its own branding to the Service, subject to the terms of Section 7 of this Agreement.

ii. The Company License will apply only with respect to, and for the duration of, the relevant Event(s) (as defined herein) for which Customer purchases the Company License. Upon the earlier of the completion of the Event(s), or the termination of this Agreement, the Company License will immediately terminate and be of no further force and effect.

d. Customer will provide customer support to its own Guests. Customer acknowledges and agrees that Company shall not be responsible or liable for any Guest complaints, or for any Guest’s use of the Service, in accordance with Section 11 of this Agreement.

e. Customer shall be solely responsible for submitting the Service to the Apple App Store, Google Play Store, or similar application marketplaces. Customer acknowledges and agrees that it, not the Company, shall be listed as the developer for any applications so submitted.

f. Customer is responsible for maintaining the confidentiality of any account Customer creates on the Service, and Customer is fully responsible for all activities that occur under its username and password, or the usernames and passwords of any of Customer’s Guests. Customer agrees to immediately notify Company of any unauthorized use of any such account or any other breach of security. Company will not be liable for any loss or damage arising from Customer’s failure to comply with this provision.

2. Pricing; Terms of Payment.

Customer agrees to pay the fees set forth in the SOW. Payments are due within 30 days of the date of the relevant invoice, as sent by Company to Customer. If Payment is not received within 90 days of the date of an invoice, Company may, in addition to any other remedies available to it at law or equity, suspend or limit Customer’s access to the Service, prevent new Events from being added to the Service, and/or suspend access to and/or support for existing Events.

3. Cancellation.

a. Cancellation of Services.Customer may cancel this Agreement at any time by contacting the Company in writing in accordance with Section 15 of this Agreement. In the event of cancellation, all outstanding invoices for Service Fees (as defined and set forth in the SOW) must be paid by Customer pursuant to the terms of Section 2 of this Agreement.

b. Cancellation of Event. Customer may cancel an Event at any time by contacting the Company in writing in accordance with Section 15 of this Agreement. The Company reserves the right, in its sole discretion, to archive any Events which have been cancelled, as of the date of notice of cancellation from the Customer. Customer shall only be entitled to a refund, if any, as follows:

i. If an Event is cancelled at least six (6) months before the scheduled date of the Event, Customer will receive a full refund of all Event Fees (as defined in the SOW) otherwise due and/or previously paid pursuant to Section 2 of this Agreement.

ii. If an Event is cancelled at least three (3) months before the scheduled date of the Event, but less than six (6) months before the scheduled date of the Event, Customer will receive a refund equivalent to 50% of all Event Fees otherwise due and/or previously paid pursuant to Section 2 of this Agreement.

iii. If an Event is cancelled less than three (3) months before the scheduled date of the Event, Customer will not be entitled to a refund of any Event Fees, and all payments due pursuant to Section 2 will remain due within, at most, 30 days of Customer’s notice of cancellation of the Event.

4. Customer’s Use of the Service

Except as otherwise explicitly allowed by this Agreement, Customer acknowledges and agrees that it will not, nor will it authorize any third party to:

a. Copy, modify or make derivatives of, reverse engineer, disassemble, decompile or otherwise attempt to discover any portion of the source code or trade secrets of the Service.

b. Distribute, sell, sublicense, rent, or lease the Service, or otherwise provide third parties with use of the Service, other than as explicitly permitted by this Agreement.

c. Remove, obscure or alter any notice of any copyright, trademark, patent or other proprietary right related to the Service.

d. Publicly disseminate performance information or analysis regarding the Service.

e. Copy or capture, or attempt to copy or capture, any content from the Service (the “Content”) or any part of the Service, unless given express permission by Company.

f. Copy or adapt any object code contained within the Service, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Service, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to Content.

g. Use, or allow Guests to use, the Service to upload, post, store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:

i. any Content that is offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in Company’s sole and reasonable discretion;

ii. any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or

iii. any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful in Company’s sole and reasonable opinion;

iv. any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which will or might overburden, impair or disrupt the Service or servers or networks forming part of, or connected to, the Service, or which does or might restrict or inhibit any other user's use and enjoyment of the Service; or

v. any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.

h. Commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.

i. Rent, sell or lease access to the Service, or any Content on the Service.

j. Deliberately impersonate any person or entity or otherwise misrepresent Customer’s affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.

k. Sell or transfer, or offer to sell or transfer, access to the Service to any third party without the prior written approval of Company.

l. Collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.

m. Collect or use, or attempt to collect or use, personal data in a manner which violates Company’s Privacy Policy.

Customer agrees to comply with the above conditions, and acknowledge and agree that Company has the right, in its sole discretion, to terminate this Agreement or take such other action as we see fit if Customer breaches any of the above conditions or any of the other terms of this Agreement. This may include taking court action and/or reporting offending users to the relevant authorities.

5. Customer Bears Risk of Upload.

Company uses reasonable security measures in order to attempt to protect any content or information that Customer uploads, including without limitation any information, photographs or other images, or intellectual property (collectively, “Customer Content”). However, Company cannot guarantee that there will be no unauthorized copying or distribution of Customer Content nor will Company be liable for any copying or usage of Customer Content not authorized by Company. Customer hereby releases and forever waives any claims it may have against Company for any such unauthorized copying or usage of Customer Content, under any theory of liability. THE SECURITY MEASURES TO PROTECT CUSTOMER CONTENT USED BY COMPANY HEREIN ARE PROVIDED AND USED "AS-IS" AND WITH NO WARRANTIES OR ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.

Company may, in our sole discretion, remove any content posted on the Service, for any reason or no reason whatsoever. Notwithstanding the foregoing, we are not obligated to monitor content uploaded to the Service and we do not guarantee that we will remove any content that violates these Terms of Use or is illegal or otherwise objectionable.

Without limiting the foregoing, Company has the right to cooperate fully with any court or law enforcement agency or authority ordering or requesting that we disclose the identity of, or any other information about, anyone posting any materials on or through the Service. CUSTOMER AGREES TO WAIVE AND HOLD HARMLESS COMPANY, ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES, DURING, IN RESPONSE TO, OR AS A RESULT OF, ITS INVESTIGATIONS, AS WELL AS FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF SUCH INVESTIGATIONS, WHETHER BY SUCH PARTIES OR BY A COURT OR LAW ENFORCEMENT AGENCY OR AUTHORITY.

Notwithstanding the foregoing, Company cannot and does not undertake to review all materials before they are posted on the Service. Company cannot ensure that objectionable material will be promptly removed after it has been posted.

Company assumes no liability for any action or inaction taken by us or any of our affiliates, licensees, and/or service providers, regarding content, communications, or transmissions from or by any user or third party. Company has no liability or responsibility to anyone for performance or nonperformance of the aforementioned activities.

6. Relationship of the Parties.

Nothing contained in this Agreement shall be construed as creating any partnership, joint venture, agency, or other form of enterprise between the parties hereto. Neither party shall have the authority to contract for or bind the other party in any manner whatsoever.

7. Intellectual Property.

a. Company retains all proprietary rights in the Service. The Service contains or may contain copyrighted, trademarked, and patented material, and other proprietary information, which information belongs to Company and its licensors. Except where we have given Customer express written permission, Customer may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. Except where otherwise specified in this Agreement, all Content is protected material of Company. Distribution of Content to others is strictly prohibited. Customer agrees that Company would be irreparably harmed by any violation or threatened violation of this section and that, therefore, Company shall be entitled to an injunction prohibiting Customer from any violation or threatened violation of this section, without posting bond, in addition to any other right or remedy it may have.

b. All data or information uploaded to and/or contained on the Service, including without limitation any such data or information uploaded or provided by the Customer or any information relating to Events (collectively, the “Service Data”), shall be proprietary to Company. Customer acknowledges and agrees that it may not export, copy, or otherwise use any Service Data without prior written permission from the Company.

8. Copyright Policy.

Company prohibits the submission or posting of any information that infringes or violates the copyright rights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity.

Pursuant to Title 17, United States Code, Section 512(c)(2) or for any other claim of copyright infringement, you hereby agree that notifications of claimed copyright infringement be sent by certified mail to:

7 Mallard Place, Secaucus, NJ 07094

When contacting us, please make sure that you include the following information:

a. a statement that you have identified content on the Service that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act;

b. a description of the copyright work(s) that you claim have been infringed;

c. a description of the content that you claim is infringing and a description of where such content can be located;

d. your full name, address and telephone number, a valid email address on which you can be contacted, and your Company user name if you have one;

e. a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and

f. a statement by you that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

In addition, if you wish for your notice to be considered as a notice pursuant to the United States Digital Millennium Copyright Act 17 U.S.C. Section 512(c), please also include the following:

g. with respect to your statement that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, confirmation that such statement is made under penalty of perjury; and

h. your electronic or physical signature (which may be a scanned copy).

Company will process any notice of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) 17 U.S.C. 512(c)(3) or other applicable copyright law. U.S. law provides significant penalties for submitting such a statement falsely. Under appropriate circumstances, persons who repeatedly submit infringing or unlawful material will be prohibited from posting further submissions.

The foregoing process applies to copyright only. If you discover any content that you believe to be in violation of your trademark rights, please report this to us by mail or email at 7 Mallard Place, Secaucus, NJ 07094 or [EMAIL]. In all other cases, if you discover content that infringes any or violates any of your other rights, which you believe is defamatory, pornographic, obscene, racist or otherwise liable to cause widespread offence, or which constitutes impersonation, harassment, spam or otherwise violates these Terms of Use or applicable law, please report this to us at 7 Mallard Place, Secaucus, NJ 07094 or [EMAIL].

9. Repeat Infringer Policy.

In accordance with the DMCA and other applicable laws around the world, Company has adopted a policy that it will promptly terminate without notice any user's access to the Service if that user is determined by Company to be a "repeat infringer." A repeat infringer includes, without limitation, a user who has been notified by Company of infringing activity violations more than twice and/or who has had any user-submitted content removed from the Service more than twice. Company may also at our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

In addition, Company accommodates and does not interfere with standard technical measures used by intellectual property rights owners to protect their materials.

Please note that we do not offer refunds to Members whose accounts are terminated as a result of repeated infringement of these Terms of Use.

10. Modifications to Service.

Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Customer acknowledges and agrees that Company shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Service.

11. Limitation of Liability.

In no event shall Company be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the Service, or use thereof. Nothing contained on the Service or in any written or oral communications from Company or its employees or agents shall be construed to make any promise, covenant, or guaranty, all of which are explicitly disclaimed hereby, contrary to the statements and disclaimers contained in this paragraph.

The content and functionality on the Service, the content and functionality of the Service, and the services provided by employees of Company are offered "as is" without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Company makes no warranties, express or implied, as to the functionality, merchantability, or fitness for a particular purpose of the Service; or about the ownership, accuracy, completeness or adequacy of the Service’s content or that the functionality of the Service will be uninterrupted or error-free or free from virus or third party attack. Customer hereby acknowledges that Customer’s use of the Service is at Customer’s sole risk. UNDER NO CIRCUMSTANCES SHALL COMPANY, ITS OFFICERS, OWNERS, EMPLOYEES OR AGENTS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT DIRECTLY OR INDIRECTLY RESULT FROM USE OF, OR INABILITY TO USE, THE SERVICE OR THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.

TO THE GREATEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT IN NO EVENT WILL COMPANY HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THE AGREEMENT AND/OR THE SERVICE, INCLUDING, BUT NOT LIMITED TO LOST PROFITS; LOST DATA; LOSS OF GOODWILL; COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT; WORK STOPPAGE; EQUIPMENT FAILURE OR MALFUNCTION; ILLEGAL, IMMORAL OR FRAUDULENT ACTIVITY; PERSONAL INJURY; PROPERTY DAMAGE; OR ANY OTHER DAMAGES OR LOSSES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH SUCH LIABILITY IS BASED.

In the event that any of the foregoing limitations are deemed to be unenforceable, to the greatest extent permitted by law, Customer agrees that the entire aggregate liability of Company and sole remedy available to Customer in any case in any way arising out of or relating to the Agreement and/or the Service shall be limited to monetary damages that in the aggregate may not exceed the lesser of $100.00 or the sum of any amount paid by Customer to Company during the three months prior to notice to Company of the dispute for which the remedy is sought.

12. Indemnity by Customer.

Customer agrees to indemnify and hold Company, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, arising out of or related to:

a. Customer’s use of the Service in violation of this Agreement and/or arising from a breach of this Agreement including without limitation Customer’s representations and warranties set forth above;

b. any third party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from Customer’s use of the Service;

c. any activity related to Customer’s use of the Service, be it by Customer, any of Customer’s Guests, or by any other person accessing the Service with or without Customer’s consent unless such activity was caused by the act or default of Company.

13. Attorney Fees.

In the event that Company is successful in whole or in part in any action or proceeding related to or arising from this Agreement, Customer shall be responsible for Company’s attorneys' fees and costs.

14. Privacy.

Customer agrees to use the Service in accordance with Company’s Terms of Use and Privacy Policy, located at www.joinvenuex.com/terms and www.joinvenuex.com/privacy, respectively.

15. Notices.

Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be sufficiently given or made by delivery or by post or by telecopy or similar facsimile transaction (with confirmation of accurate or complete transmission obtained by sender) or by other electronic means of communication to the respective Parties. Any notice so given shall be deemed conclusively to have been given and received when so personally delivered or posted or so telecopied or transmitted, except that any notice delivered after 5:00 p.m. on the date prior to a non-business day shall be deemed to have been received at 9:00 a.m. on the first business day following delivery. Any party may change its address, facsimile transmission number, or other contact information by notice to the other of them in the manner set out above. Notices to Company and Customer will be sent to the addresses and/or email addresses set out in the SOW.

16. Jurisdiction and Choice of Law; Dispute Resolution.

If there is any dispute arising out of the Service, by using the Service, Customer expressly agrees that any such dispute shall be governed by the laws of the State of New Jersey, without regard to its conflict of law provisions, and Customer expressly agrees and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New Jersey, for the resolution of any such dispute. Acceptance of the terms and conditions of this Agreement constitutes Customer’s consent to be sued in such courts and to accept service of process outside the State of New Jersey with the same force and effect as if such service had been made within the State of New Jersey. Customer hereby agrees to accept service of process for any action hereunder by certified mail return receipt requested which service shall have the same force and effect as though service had been effected by personal service in the applicable jurisdiction. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.

17. Arbitration Provision/No Class Action.

Except where prohibited by law, as a condition of using the Service, Customer agrees that any and all disputes, claims and causes of action (collectively, "Claim") arising out of or connected with the Service, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. The parties shall split the arbitration and/or mediator costs. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of New Jersey, County of Hudson, or the United States District Court for the District of New Jersey. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of New Jersey, County of Hudson, or the United States District Court for the District of New Jersey.

18. No Third Party Beneficiaries.

Customer agrees that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

19. Entire Agreement

This Agreement contains the entire agreement between Customer and Company regarding the use of the Service.

20. Severability; Waiver

If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. In addition, Company’s failure to enforce any term of this Agreement shall not be deemed as a waiver of such term or otherwise affect Company’s ability to enforce such term at any point in the future.

21. Headings

The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

Please contact us with any questions regarding this agreement. Invitext is a trademark of Invitext Technologies LLC.