WhenNow™ by Active Data, Inc.
1.1. WhenNow is a service (“WhenNow” or the “Service”) of our company Active Data, Inc. (“Active Data”, “us”, “our” or “we”). WhenNow is Software as a Service (SaaS) that lets users organize events (“Organizer”) and attend events (“Attendee”). Each event Organizer may create, manage, promote, sell tickets, collect fees, and account for events in accordance with our Terms of Service. WhenNow also enables event Attendee users to purchase or otherwise obtain tickets, passes or rights to attend events of interest. Users of all types may use our Service to promote events to others through various means including through certain third party social media services and applications.
1.2. “Terms of Service”, “Referenced Policies” and other “Agreements”, collectively our “Terms”, all relate to the proper, responsible and legal use of our services by users. A “user” (or “you” or “your”) is a person or organization that interacts with our software products or Service, in any way. You are a user when you interact with our Service to create an event as an event Organizer. You interact with our Service as a user when you buy a ticket or make a transaction through our Service as an Attendee. You interact with our Service as a user when you log-in or sign-up for WhenNow, and then just browse through our website or application, even if you do not use our Service for any other purpose.
1.3. If you use our Service in any way, it is important that you read these Terms and understand them. As an event Organizer, you agree to these Terms by registering, signing up or logging in. If you are an Attendee, you agree to these Terms by purchasing any item offered for sale, making any donation or by registering for any event, even if that event is free. By agreeing to these Terms, you agree to be bound by all of the provisions of these Terms including our policies that are incorporated by reference. If you do not agree, please do not register, log-in, or use any of our services.
1.4. If you agree to these Terms on behalf of a company or organization, you represent to us that you have actual authority to bind the company or organization to these Terms.
1.5.1. By you: Except as otherwise agreed between you and Active Data, – you may terminate your Service and these Terms by deactivating or deleting your account with us, provided that you have properly settled any open accounts with us. This includes payment due to us for our services that you used, if any, and your responsibility for user refunds, if any.
1.5.2. By us: Except as otherwise agreed between you and Active Data, – we may terminate your right to use the Service at any time if in our sole opinion, (i) you violate or breach any of these Terms or our referenced policies; (ii) you attempt to use, or actually use our Service to engage in an activity on our Prohibited Activities List; (iii) you abuse, misuse, or cause excessive use of our systems’ resources; (iv) your use of our Service would violate any local, state, national and other laws; (v) if your use would expose us to any presumed or actual legal liability; or (vi) we discover that you are attempting to breech or investigate our Service’s or Company’s security mechanisms, reverse engineer our codebase, scan our IP space or discover our Service’s methods. Reasonable efforts will be made to provide you with some level of advanced notice of any such termination, unless we think immediate termination is helpful to insure that our Service remains available for our other customers and users. For the avoidance of any doubt, you expressly agree that Active Data, our partners, and our affiliates shall not be liable to you or any third-party for any such termination of your right to use or otherwise access our Service.
18.104.22.168. Any attempt to access or modify unauthorized information or to interfere with normal system operations (commonly known as “hacking”), whether on the equipment of WhenNow or of any other computer system or network that is accessed by our Service, including any of our partner networks or services will result in immediate and permanent termination of this Agreement and may lead to other legal proceedings against you.
1.5.3. Any provisions in this Agreement that expressly control or affect a party’s rights after termination shall survive any termination or expiration of this Agreement, and shall remain in full effect after termination, including but not limited to indemnification, governing law, limitation of liability, disclaimers of warranty, and dispute resolution.
1.6. Active Data may provide an updated version of these Terms to you directly by email or other forms of communication that you have registered with us, or by posting it on our website at https://www.events.WhenNow.com/policies. If you choose not to be bound by any new or subsequent version of these Terms, please terminate your WhenNow account promptly thereafter and settle any monetary commitments you may have with us. If you do not terminate your account prior to a new version of the Terms taking effect, the most recent version of these Terms prior to the termination of your account shall remain in effect.
1.7. The following policies and other documents (each, a “Schedule”) are incorporated into the Terms by reference as if fully set forth here:
1.7.1. WhenNow End User License Agreement
1.7.3. WhenNow Attendee Refund Policy
1.7.4. WhenNow DCMA, Trademark and Copyright Policy
1.7.5. WhenNow Merchant Agreement for Event Organizers
1.7.6. WhenNow Site Usage Policy
2.1. The use of WhenNow is currently restricted to events that are organized and take place within the United States of America and its territories.
2.2. For the avoidance of doubt, each event has a defined Organizer, “Place”, “Start Time”, “Purpose” and an “Attendee Policy”.
2.2.1. The event Organizer’s name and contact information must be clearly shown.
2.2.2. The event Place may be a real physical or virtual location that is clearly shown.
2.2.3. The event Start Time is the local time at which the event begins and may include an end time.
2.2.4. The Purpose is a clear description of the activity at the event, and information on what Attendees can expect from the event.
2.2.5. The Attendee Policy must clearly state the Organizer’s policy on payment of event fees, cancellations, postponements, and if applicable, how an Attendee can request a refund of fees.
2.3. WhenNow is primarily a service that is used to manage events. Our website at www.WhenNow.com displays the current features and benefits of our Service and further guides users on its intended use.
2.4. As an event Organizer, you may use our Service to manage an event where people may attend for free or for a fee. The event must be a legal activity that abide by our Terms. The event activity may not be listed in these Terms as a “Prohibited Activity”. Abiding by these covenants constitutes an “allowable event.”
2.5. The Service provides a method to sell tickets and potentially sell other items that are directly associated with an allowable event (such as tee-shirts, dinner tickets, donations, etc.). Other uses of our Service may be possible and allowable; however, uses outside of holding organized allowable events are not the intended purpose of our Service.
2.6.1. You expressly agree that you must not use or attempt to use our Service if your event or activity is listed in this section of the Terms, or if any doubt exists as to the legality of the event. We reserve the right to immediately cancel your service and make refunds to any buyers (without recourse from you) if you use our Service for any illegal or Prohibited Activity. If you are unsure of whether or not your use of our Service would constitute an allowable event, please contact us for guidance.
22.214.171.124. Use of our Service for any activity that is illegal, or that violates any applicable laws or regulations.
126.96.36.199. You may not use WhenNow to simply sell items, products or services that are not associated with an allowable event. WhenNow is not a shopping cart application or a virtual storefront and is not to be used as such.
188.8.131.52. Any service providing peripheral support of illegal activities, such as selling or promoting drug paraphernalia, even if the activity is legal in certain jurisdictions.
184.108.40.206. Any sexually-oriented or pornographic services or materials, including dating sites, adult toy sales or for the purpose of sex-dating.
220.127.116.11. Telemarketing companies and activities through which telemarketing is deployed.
18.104.22.168. Pyramid or multi-level marketing distribution.
22.214.171.124. Collection agencies or firms involved in recovering or collecting past-due receivables or debts.
126.96.36.199. Sports forecasting, betting, or odds-making activities.
188.8.131.52. Check-cashing services.
184.108.40.206. Currency exchanges.
220.127.116.11. Gambling, including Internet gambling, lottery sales, or games of chance.
18.104.22.168. The sale of weapons or firearms, with the exception of an allowable event where the legal sale of weapons may take place at the event and not through our Service.
22.214.171.124. Online (virtual) pharmacies.
126.96.36.199. Prescription drug sales, except for licensed and legally-compliant bricks-and-mortar drug stores.
188.8.131.52. Sale of tobacco products, except for licensed and-legally compliant bricks-and-mortar drug stores and tobacco shops.
184.108.40.206. Electronic cigarettes, including any smoking devices or refill kits or juices.
220.127.116.11. Timesharing ventures or activities.
18.104.22.168. Anonymity services.
22.214.171.124. Securities trading or the sale of options, stocks, bonds, or other equity instruments.
126.96.36.199. Virtual currencies.
188.8.131.52. Sale of alcohol.
184.108.40.206. Remote technical support services.
220.127.116.11. Events promoting racism, violence, abuse, discrimination or other immoral activity, as determined by us in our sole opinion and discretion.
18.104.22.168. The selling, repairing or advertising of medical devices.
22.214.171.124. High risk activities; psychic services; travel reservation services; negative response marketing; sale of social media activity.
126.96.36.199. Using our Service as a mechanism to resell tickets as a 3rd party. Examples include ticketed concerts, ticketed sporting events, or any other event where you are acting as a third party to resell, redistribute, or furnish tickets.
188.8.131.52. Using our Service as a virtual credit card terminal, or where there is no bona fide good or service sold and/or delivered.
2.6.2. No High Risk Use. Our Service and any Software provided through it, are neither designed nor intended for use in a situation where the Service or Software’s failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (High Risk Use). You agree not to use the Service or Software in, or in conjunction with, High Risk Use. High Risk Use includes, for example: the controlling of human mass transportation or nuclear or chemical facilities, or the manipulation of Class III medical devices listed under the US Food, Drug, and Cosmetic Act.
3.1. WhenNow creates an interactive environment where Attendees and Organizers can interact and do business with each other. Given this free form environment, we cannot possibly control the actions of every Attendee or Organizer. As such, we cannot be held responsible for the actions, inactions, activities or comments of any or all of our Attendees, Organizers or other users. In consideration of the right to use our Service under these Terms, you agree to release us and our respective officers, directors, agents, partners and employees from any and all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in any way connected with disputes between or among you, other users of our Service, and any third parties, in connection with or arising out of the Service or its use.
4.1.1. Active Data warrants during the term of this agreement, to the best of Active Data’s actual knowledge, the Service does not infringe any valid patents, copyrights, trademarks, or other rights of any third parties. Active Data shall defend, indemnify, and hold harmless any user, its officers, agents, and employees from and against any claim, loss, damage, or expense (including court costs and reasonable attorney’s fees) brought in a court or other tribunal in the United States by an unaffiliated third party against a user and arising out of any breach of this subsection which results directly from your own internal use of the Service in compliance with these Terms. Active Data’s indemnity provided under this section shall not apply to any claim of infringement if (i) you are using a form of the Service that has been modified without our approval, to the extent such claimed infringement could have been avoided by use of an unmodified form of the Service; or (ii) the Service has been combined, operated or used with other software or data supplied without our prior written approval, to the extent such claimed infringement could have been avoided by the use of the Service without such other software or data; or (iii) the claim arises out of your actions or omission, including any reckless, willful or negligent actions or omissions.
4.1.2. As a user of our Service, you warrant to the best of your actual knowledge that (i) the content you add to the Service or modify does not and will not infringe any valid patents, copyrights, trademarks, or other rights of Active Data or any third parties; (ii) any and all transactions of Tickets or other Products do not and will not violate any applicable laws or regulations; (iii) you shall be responsible for the assessment, collection and remittance of all sales and other taxes generated by the offering and sales of Tickets and other Products; and (iv) your actions or omissions shall not breach these Terms or infringe or breach the rights of any third party. You agree to defend, indemnify, and hold harmless Active Data, its officers, agents, employees, merchant partners, banks, payment processors and authorized contractors from and against any claim, loss, damage, or expense (including court costs and reasonable attorney’s fees) brought in a court or other tribunal by an unaffiliated third party against Active Data and arising out of action, omission or circumstance state in this subsection.
4.1.3. Anyone seeking indemnification (each, an “indemnitee”) shall provide the indemnifying party (the “indemnitor”) with (i) prompt written notice of the existence of such claim, suit, action or proceeding; (ii) sole control over the defense or settlement of such claim; and (iii) assistance at the indemnitor’s request to the extent reasonably necessary for the defense or settlement of such claim or suit. Once the indemnitor has assumed the defense of an indemnitee, the indemnitee may nevertheless choose counsel to represent the indemnitee and participate in the defense or settlement of the claim in an advisory capacity, but solely at the indemnitee’s expense. The indemnitor may not settle or compromise a claim against an indemnitee by admitting liability or assessing damages on behalf of the indemnitee without the indemnitee’s prior written permission.
4.1.4. THE INDEMNIFICATION PROVISIONS OF THESE TERMS CONSTITUTE ACTIVE DATA’S SOLE LIABILITY, AND THE SOLE RECOURSE OF EACH ATTENDEE, ORGANIZER, USER, VISITOR AND BUYER IN RESPONSE TO ANY ALLEGATION OF INFRINGEMENT OR BREACH OF THIRD-PARTY RIGHTS BY THE SERVICE OR ACTIVE DATA.
5. DISCLAIMER OF WARRANTY. Active Data created WhenNow using current best practices, modern methods and known vendors in an attempt to make our Service easy to use, flexible, simple, and cost effective. However, because we allow our users to modify, change and update portions of the Service for their own use, we cannot control the operation of the Service or the actions of any users. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY STATED IN THESE TERMS, OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACTIVE DATA DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACTIVE DATA DOES NOT WARRANT OR REPRESENT THAT ANY SERVICE WILL BE FREE FROM ERRORS, OR THAT ITS USE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT THE SERVICE WILL WORK WITH ANY THIRD-PARTY SOFTWARE, DATA OR EQUIPMENT, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. IN NO EVENT SHALL ACTIVE DATA BE LIABLE FOR ANY INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SERVICE OR THESE TERMS, HOWEVER CAUSED, EVEN IF ACTIVE DATA HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. ACTIVE DATA SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE SERVICE, OR ANY COMPONENTS THEREOF, OR OTHERWISE, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS. ACTIVE DATA WILL NOT BE RESPONSIBLE TO PROVIDE SUPPORT FOR ANY SERVICE THAT YOU OR ANY THIRD PARTY HAS ATTEMPTED TO MODIFY.
6. LIMITATION OF LIABILITIES. The liability of Active Data under these Terms for any claim whatsoever related to any Service or these Terms, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the greater of the total amount of fees paid by the user to Active Data which apply to the recurring use of the Service excluding any one-time charges or professional service fees, hereunder in the one-year period next preceding the claim. Active Data shall not be liable to you or any other person or entity (or anyone claiming under or through you or any other person or entity) for incidental, indirect, special or punitive damages arising from these Terms (including loss of profits, use, data or economic advantage) regardless of whether previously advised of the possibility of such damages, claims or demands.
7. FEES AND TAXES. You agree to pay our non-refundable Service fees in the amounts and on the terms set forth in our current Fee Schedule. Most fees are deducted from the revenue generated by your event transactions, such as selling tickets to your event. You agree to pay all applicable sales, use, personal property, and other similar taxes associated with the rights granted and the Services provided pursuant to these Terms. If we do not receive payment in full of any fees when due, then we in our sole discretion may terminate your account and pursue collection activities, and we reserve the right to charge you for our costs of collection, including all court costs and attorney’s fees.
8. ASSIGNABILITY. We may, without your consent or approval, freely assign these Terms and our rights and obligations under these Terms, whether to an affiliate or to another entity in connection with a corporate transaction, public, private or otherwise.
9. SURVIVAL. All license and Service provisions of these Terms shall terminate upon termination of these Terms. All accrued but not paid Fee obligations and provisions, and all provisions used to construe each party’s rights under applicable law (including this provision) shall survive in accordance with their terms.
10. NOTICES. Notices to you may be sent via either email or regular mail to the address you provided when you signed up for our Service. You may contact us by postal mail at Active Data, Inc., 190 Brodhead Road, Suite 300, Bethlehem, PA 18017, or by email to email@example.com.
11. SEVERABILITY. If any provision of these Terms shall be held to be invalid, illegal, or unenforceable, the same will be severed from thee Terms, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Without limiting the foregoing, it is expressly agreed and understood that each and every provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth herein shall remain in full force and effect.
12. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, and the federal laws of the United States of America, as an agreement made therein, without reference to any conflicts of laws provisions or policies. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
13. ARBITRATION. Any dispute between the parties that cannot be amicably resolved shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The arbitrator shall decide the arbitration on the submission of documents, by audio conference, and by video conference. The parties and the witnesses shall not be required to travel to enter testimony or evidence. The award of the arbitrator shall be final and binding on the parties, and may be entered and enforced in any court or tribunal of competent jurisdiction.
14. INDEPENDENT CONTRACTORS. The parties to these Terms are independent contractors and are not agents or representatives of each other. Each party represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. Neither party shall misstate or misrepresent its relationship hereunder. Nothing in these Terms shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, co-owners, joint ventures, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in these Terms, neither party is granted the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title, or interest of the other party.
15. NO WAIVER. No party shall, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of these Terms. Further, the express waiver by either party of a particular breach of these Terms shall not be construed as nor constitute a continuing waiver of such breach or of breaches of the same or other provisions of these Terms.
16. ENTIRE AGREEMENT. The parties hereto acknowledge that these Terms, including all Schedules, are the complete and exclusive statement of agreement respecting the subject matter hereto and supersede all prior understandings and other communications between the parties relating hereto. Except as expressly stated in these Terms, any additional or contradictory terms or conditions of any purchase order, accounting report or communication between the parties, or any other document, shall be of no effect unless signed in hard copy by both parties.
17. DATE OF AGREEMENT. This Agreement is dated May 2, 2016. Prior versions of this Agreement are dated as follows:
END OF THIS AGREEMENT.