The following terms apply specifically to the use of the Sites by Wayfyndr’s Customers, as that term is defined by Wayfyndr’s Service Agreement; Wayfyndr’s Customers are entities that host events and gatherings using Wayfyndr’s services to help their patrons navigate the event and gathering by use of the Sites. The following terms apply to the Customer’s use of the Sites to administer their Wayfyndr account through the Sites as provided in the Wayfyndr Service Agreement.
15.1. Customer’s Access and Use Rights. Subject to the terms and conditions of your Wayfyndr Service Agreement, these ToS and your compliance thereof, and specifically in strict compliance with our AUP, we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Sites, during the applicable subscription term, solely for Customer’s internal purposes.
15.2 Customer Account Registration. By completing the registration process you agree to be fully responsible for all activities that occur under your password protected account (“Account”), including any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Sites. We may assume that any communications we receive under your Account have been made by Customer associated with the Account. Customer will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party on your behalf.
15.3 Customer’s Purchases Made Through the Sites. You authorize Wayfyndr to charge your credit card (or other payment instrument) for any products or services purchased and for any additional amounts (including any applicable taxes, late fees, additional service fees, and associated bank fees) that may accrue by or in connection with your Account. You are responsible for the timely payment of all fees and providing Wayfyndr valid credit card information for payment of such fees. Fee will be billed to the credit card you designate during the registration process. If you wish to designate a different credit card for payment you are responsible for changing such information in the appropriate Account settings. You acknowledge by using the Site that your electronic submissions constitute an agreement and demonstrate your intent to be bound by and pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Sites, including notices of cancellation, policies, contracts, and applications.
15.4. No Contingency on Future Releases and Improvements. Customer acknowledges their subscription to the Sites and/or Third Party Services are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of: (i) a certain Wayfyndr service beyond the current Subscription Term; or (ii) Third Party Services, or (iii) dependent on any public comments we make, orally or in writing, regarding any future functionality or feature.
15.5. Technical Support and Committed Uptime. Customer will be entitled to premium technical support and an uptime commitment, in accordance with the Service Agreement provided to you, which may be updated by Wayfyndr from time to time by agreement of the parties.
15.6. Subscribing to the Services. Customer will subscribe to the Sites by signing the Wayfyndr Service Agreement specifying the Services and the terms and conditions applicable to the Customer’s subscription to the Sites. Service requests shall be executed manually.
15.7. Account Administrators. The Administrators (“Admin(s)”) of a Customer’s Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by an Admin, is deemed a decision or action of Customer. An Admin may assign or add other Users to the Account as Admins, which possess important privileges and controls over the use of the Sites, Wayfyndr’s services, and the Account, including, without limitation: (i) control your (and other authorized users) use of the Account; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise change, all or part of the Customer Data (as defined below); and (iv) integrate or disable integration with Third Party Services. By using the Site and providing Admin authority you acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered. Customer is solely liable and responsible for understanding the settings, privileges and controls for the Sites, Account, Wayfyndr’s services, and for controlling whom Customer permits to become an Admin, or authorized user, on their Account and what are the settings and privileges for such users, including without limitation, the right of an Admin to invite other Admins, the right to access, post, modify or remove content, etc. Customer is responsible for the activities of all of its Account Users. Further, Customer acknowledges that any action taken by an Admin or other authorized user of Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no defense to any claim in this regard.
15.8. Customer Data. Customer Data is any data, file attachments, text, images, personal information, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Sites by the Customer or any Admin of the Customer’s Account and is processed by us on Customer’s behalf (the “Customer Data”). For the avoidance of doubt, Anonymous Information (as defined above) is not regarded as Customer Data. Customer retains all right, title, interest and control, in and to the Customer Data, in the form submitted to the Service. Subject to their Wayfyndr Service Agreement and these ToS, Customer grants us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display on the Sites, or as part of a Wayfyndr service, constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. The afore-mentioned license is hereby granted solely: (i) to maintain and provide you the Sites and Wayfyndr service contracted for as part of Customer’s Wayfyndr Service Agreement; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of these ToS; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you.
15.9. Responsibility for Customer Data Compliance. Customer represents and warrants that: (i) it has obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that it submits, posts or displays on or through the Sites or Wayfyndr service; (ii) the Customer Data is in compliance with, and subject to, our AUP (above); and (iii) the Customer Data submitted, Customer’s use of such Customer Data, and our use of such Customer Data, as set forth in these ToS, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the “Laws”); (c) violate any of your or third party’s policies and terms governing the Customer Data. Other than our security and privacy protection obligations expressly set forth in Section 11, we assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Wayfyndr shall not monitor and/or moderate the Customer Data and there shall be no claim against Wayfyndr of not acting so.
15.10. No Sensitive Data. Customer shall not submit to the Sites or any Wayfyndr service any data that is protected under special legislation and requires unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; (ii) any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and supplemented, or any similar legislation in other jurisdiction; and (iii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes.
15.12. Excessive Usage. We shall have the right, including without limitation where we, at our sole discretion, believe that Customer and/or any of its Users, have misused the Sites or any of Wayfyndr’s services in an excessive manner compared to the anticipated standard use (determined at our sole discretion), to offer the Subscription in different pricing and/or impose additional restrictions for the upload, storage, download and use of the Sites or Wayfyndr’s services, including, without limitation, restrictions on Third Party Services, network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, etc.
15.13. Pre-Released Services. Note that we may offer, from time to time, certain Wayfyndr services in a Beta version (the “Pre-Released Services”) and we use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. Such Pre-Released Services are governed by these ToS, provided that notwithstanding anything in these ToS or elsewhere to the contrary, in respect of Trial Service and Pre- Released Services, such services are licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or implied, of any kind, We make no promises that any Trial Service and/or Pre-Released Services will be made available to Customer and/or generally available in the future.
15.14. Customer Indemnification. Customer will indemnify and hold Wayfyndr and (as applicable) its subsidiaries, affiliates, partners, officers, directors, agents, and employees, harmless from and against any user or third party claims, demands, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) (“Claims”) due to, arising out of or related to: (i) Customer Data; (ii) Customer’s use or misuse of the Sites or Wayfyndr’s services except to the extent such Claims arise solely from a third party claim that Wayfyndr IP infringes third party rights or violates applicable law; (iii) disputes arising from transactions made via the Third Party Services, or Customer ’s relationship with any of its patrons; (iv) any breach of Customer’s representations and warranties; (v) Customer’s breach of the Wayfyndr Service Agreement, including the AUP and these ToS , and any other terms incorporated herein by reference; or (vi) Customer’s violation of any applicable law or Third Party Rights.
15.15. Limitation of Liability as to Customer.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WAYFYNDR BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT WAYFYNDR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WAYFYNDR’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PLATFORM FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY WAYFYNDR FOR THE SERVICES AND THAT IF WAYFYNDR WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED.