1. Definitions. “Customer” refers to the individual or entity that has ordered from Educational Measures, LLC d.b.a Array (“Array”) the Services specified in a written Order. The term “Services” refers to any services which have been ordered by the Customer as provided in an Order. The term “Order” refers to any quote, proposal, purchase order, or any other such written form that is duly executed by Customer and Array. The term “Meeting” refers to any live, in-person and/or virtual meeting, conference, or event at and for which the Services are to be rendered. A “Participant” shall refer to any individual or entity which participates in a Meeting, regardless of whether such Participant’s participation through attendance at an in-person meeting, or, if such Participant is participating via a virtual meeting through electronic methods. Customer and Array may be referred to herein as a “party” or collectively referred to herein as the “parties”.
2. Applicability. These Terms and Conditions shall apply to and otherwise govern the provision of Services as set forth in each Order.
3. Independent Relationship. Array’s performance of the Services shall be as an independent contractor, and, the provisions of these Terms and Conditions are not intended to create any partnership, joint venture, agency or employment relationship between Array and Customer. Notwithstanding the authority granted to the parties herein, each party shall be solely responsible for and shall comply with all state and federal laws pertaining to employment taxes, income withholding, unemployment compensation contributions and other employment related statutes applicable to such party.
4. Provision of Services to Customer. Array agrees to provide, or cause to be provided to Customer, in a commercially reasonable manner, the Services. From time to time the parties may identify additional services that Customer may desire and that Array is willing to provide pursuant to these Terms and Conditions (the “Additional Services”). With the mutual written agreement of the parties, such Additional Services may be included in the Order’s definition of Services. The parties shall use good faith efforts to cooperate with each other in all matters relating to the provision and receipt of the Services and the payment of the Compensation.
5. Compensation. As “Compensation” for Array’s performance of the Services, Customer shall be obligated to pay Array those amounts set forth in the Order. Customer hereby agrees and acknowledges that it shall be responsible to pay Array for any additional amounts billed by Array because of Customer’s failure to perform its Duties (as defined below). In addition to the Compensation, Customer shall be obligated to reimburse Array for reasonable out-of-pocket expenses incurred by Array in its performance of the Services for Customer, which expenses may include, but shall not be limited to:
A. Hotel and travel expenses for the number of Array staff members required to deliver the Services;
B. Costs and expenses incurred by Array in shipping its equipment necessary to deliver the Services;
C. Costs charged to Array by the Meeting property, including but not limited to the audio-visual, shipping and receiving, and food and beverage departments. Such charges may include fees associated with Array's use of third-party audio-visual vendors, internet connections and bandwidth, loading dock use and equipment handling, and power supply;
D. On-site labor expenses if the Meeting site requires the usage of union labor;
E. Costs associated with customs, duties, international shipping brokerage or delays associated with Meetings outside of the United States; and
F. Any additional costs and expenses incurred by Array, required to deliver the Services.
Customer shall be required to remit to Array all invoiced amounts within thirty (30) days of the date of the invoice. In the event that Customer shall not remit the invoiced amounts to Array within thirty (30) days of the date of the invoice, then, Array shall be permitted to charge interest on such delinquent amount to the maximum extent permitted by law.
6. Customer’s Duties. As a condition to Array’s performance of the Services for the Compensation, Customer shall be obligated to perform the following “Duties”:
A. Promptly provide Array with the planned presentation slides, polling questions, cases, graphics, logos, files and all other required content (collectively, the “Content”) to be used at the Meeting so that Array shall have reasonable lead time to implement such Content into the Array software platform;
B. Appoint a representative to work with Array in order to enable Array to provide the Services required of it under the Order;
C. Ensure that all Meeting moderators, presenters and speakers are made available and accessible for adequate training by Array in advance of the Meeting start time, and;
D. For in-person Meetings, providing for the availability of adequate space and access for Array to set up and remove its equipment prior to and after the Meeting.
Customer hereby agrees and acknowledges that (i) in the event Customer shall fail to perform the aforementioned Duties, the Compensation payable to Array may be reasonably increased at Array’s sole discretion, and, that Customer shall be obligated to pay Array such amount; and (ii) the risk of production flaws at the Meeting increases as Content or other Meeting specification changes are issued nearer to the Meeting start time, especially within forty-eight (48) hours of the start time of the Meeting.
7. Cancellation and Rescheduling. If Customer cancels or reschedules the Meeting for any reason, Customer shall be liable to pay Array the following amounts:
A. If cancellation occurs within ninety (90) days of the scheduled Meeting, all costs and expenses incurred by Array up to the date of cancellation, as reasonably determined by Array; or
B. If cancellation occurs within seven (7) days of the Meeting, seventy-five percent (75%) of the fees set forth in the Order plus all costs and expenses incurred by Array up to the date of cancellation, as reasonably determined by Array; or
C. If the Meeting is rescheduled by Customer within sixty (60) days of the original Meeting date, all costs and expenses incurred by Array up to the date of notice of rescheduling, as reasonably determined by Array; or
D. If the Meeting is rescheduled by Customer within seven (7) days of the original Meeting date for a date more than sixty (60) days after the originally scheduled Meeting date, then all costs and expenses incurred by Array up to the date of notice of rescheduling, as reasonably determined by Array, and a one-thousand-dollar ($1,000) rescheduling fee.
8. Termination. Array shall have the right to terminate any Order up to thirty (30) days in advance of the anticipated delivery of the Services or the Meeting after providing written notice to Customer, and, in such event, Array shall be obligated to reimburse Customer for all Services which have already been paid for by Customer but have not yet been provided by Array.
9. Indemnification. Each party agrees, to the fullest extent permitted by law, to indemnify and hold harmless the other party, its officers, directors, employees and agents from any liabilities, damages and costs (including reasonable attorney’s fees and costs of defense) to the extent caused by the gross negligence of such party, such party’s contractors, or anyone for whom such party is legally responsible.
10. Exclusive Remedy. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY DAMAGES OR LOSS IN ANY WAY CONNECTED TO A PARTICIPANT, A MEETING, THE ORDER FORM AND/OR THE SERVICES, WHETHER DUE TO ARRAY’S GROSS NEGLIGENCE OR BREACH OF ANY OTHER DUTY (A “DEFICIENCY”) SHALL BE, AT ARRAY’S OPTION (I) FOR ARRAY TO CURE THE DEFICIENCY; OR (II) FOR ARRAY TO RETURN OR CREDIT OF AN APPROPRIATE PORTION OF ANY PAYMENT MADE OR TO BE MADE BY CUSTOMER WITH RESPECT TO THE DEFICIENCY.
11. LIMITATION OF LIABILITY: IN NO EVENT SHALL ARRAY BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, TORT OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF THE FORM, LEGAL THEORY OR BASIS OF RECOVERY OF ANY SUCH CLAIM AND EVEN IF THE REMEDY SET FORTH HEREIN SHALL BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE UNDER COLORADO REVISED STATUTE 4-2-719 NOR SHALL ARRAY’S LIABILITY EXCEED THE FEES PAID TO ARRAY BY CUSTOMER DURING THE 12 MONTH PERIOD PRIOR TO SUCH CLAIM. THE AMOUNTS PAID BY CUSTOMER TO ARRAY ARE CONSIDERATION FOR THE STATED LIMITS OF LIABILITY HEREIN. ARRAY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY CONTENT AND DATA OF CUSTOMER OR ITS AFFILIATES. ARRAY SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY CUSTOMER OR OTHERWISE WHICH ARE IN ANY WAY CAUSED BY ANY UNAFFILIATED THIRD PARTY, WHICH UNAFFILIATED THIRD-PARTY MAY INCLUDE, BUT, SHALL NOT BE LIMITED TO, CONVENTION CENTERS, HOTELS OR OTHER VENUE WHERE SUCH SERVICES MAY BE PROVIDED.
12. Representations and Warranties. Array represents and warrants that the Services provided hereunder shall be performed in a commercially reasonable manner. ARRAY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE. ARRAY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE. Customer warrants that no portion of the Content infringes or will infringe upon any patent, copyright, trade secret or other proprietary right of a third-party, and Customer hereby agrees to indemnify, defend, and hold harmless Array from and against any third-party liabilities, suits, causes of action, claims or expense (including reasonable attorneys’ and experts’ fees) arising from any breach or claimed breach of this warranty.
13. Ownership. All methodologies, procedures, management tools, workshops, manuals, software, data files, concepts, ideas, inventions, know-how and other intellectual property Array has developed, created, or acquired (“Array’s Intellectual Property”) are, and shall remain, the sole and exclusive property of Array or any third-party vendor. All methodologies, procedures, management tools, workshops, manuals, software, data files, concepts, ideas, inventions, know-how, documentation, and other intellectual property Array develops as part of the Services shall be the sole and exclusive property of Array. Customer shall not have or acquire any right, claim, title, or interest in or to any of Array’s Intellectual Property. Notwithstanding anything herein to the contrary, Customer shall be prohibited from using Array’s Intellectual Property or Confidential Information (as defined below) in any manner to engage in any business which is competitive with the business of Array.
14. Usage Data. Array collects a variety of types of personal information and data from a Participant which includes the name and email address of the Participant, and, certain data relating to Participant responses provided at a Meeting (collectively, the “Usage Data”) so that Array (i) can make available Meeting content engagement data, reports, and analytics to Customer upon specific request from Customer, or as directed by the Customer; and (ii) may make use of such Usage Data in an aggregated format with no personally identifiable information in order to improve its services and products. Array’s use of such Usage Data shall be in conformance with all applicable laws and regulations (including, but not limited to, any state laws or regulations), including, all applicable data protection, data security or privacy laws, including without limitation the EU General Data Protection Regulation 2016/679 (the “GDPR”) and any national implementing legislation relating thereto, to which Array is subject. Array represents and warrants that: (a) Array is processing Usage Data in its capacity as a service provider (“Processor”) on behalf of Customer (“Controller”) for the limited purpose of providing services under this Agreement; (b) it shall not use Usage Data for any purposes other than to provide the Services or to improve Array’s services and products; (c) Array will maintain, and cause its employees to maintain, the confidentiality of all Usage Data and not disclose the Usage Data to any third-parties unless the disclosure is either at the Controller's request or instruction or is otherwise required by law; (d) Array shall not sell or share the Usage Data; (e) Array acknowledges and hereby certifies that it understands its compliance obligations under this Agreement as to Usage Data; (f) it shall promptly notify Controller in the event it is unable to comply with the obligations under this Agreement as to the Usage Data; (g) Array shall not combine/ append any personal information provided by the Controller with other data; (h) shall have sufficient processes in place to ensure the security of Usage Data; (i) shall allow and reasonably assist Controller, on the provision of sufficient notice from Array, to take reasonable and appropriate steps to stop and remediate the unauthorized use of Usage Data; (j) shall allow Controller to conduct an audit to confirm Array’s compliance with its obligations regarding the Usage Data; (k) shall promptly notify and give the Controller its full cooperation and assistance in responding if the Array or Controller receives any complaint, notice, communication or data subject request (e.g., access, deletion, correction etc.) regarding their personal information contained in the Usage Data; and (l) if Array shall utilize the services of a third-party to assist with the processing of Usage Data, then, Array shall obtain the consent of Controller prior to doing so, and, if Controller consents and such third-party is retained, Array shall cause such third-party to be bound to the terms of this Section 14.
15. Confidentiality. Each party may provide to the other, and each party may come into possession of information relating to the other party's business, which is considered confidential (the "Confidential Information"). Confidential Information shall include, without limitation, all of Array's Intellectual Property, all information marked confidential, all patents and trade secrets of the parties (as defined under the applicable state trade secret law), all personally identifiable information and all information relating to each party's business plans and operations, products, costs, marketing statistics, all information, statistics, reports, data, lists, future plans, business affairs, process information, technical information, finances, marketing plans, and pricing strategy. Neither party shall (i) disclose any of the other party's Confidential Information to any person other than such party’s officers, directors, and, employees who have a need to know such information; (ii) permit any person or for such party to use such Confidential Information of the other party for any purpose other than for a purpose relating to the Services to be provided by Array; (iii)allow any third-party to examine or reproduce any Confidential Information without the prior written consent of the other party. Notwithstanding the foregoing, the confidentiality obligations set forth in the preceding sentence shall not apply in the instance such party’s Confidential Information has become public, or disclosure is required by a valid subpoena, court order or applicable law. Each party shall exercise at least the same degree of care to protect the confidentiality of the other party’s Confidential Information which it exercises to protect the confidentiality of its own similar Confidential Information, but in no event less than reasonable care. Each party shall immediately notify the other party of any theft or unauthorized disclosure, reproduction or use of any Confidential Information, or any part of such information. Notwithstanding anything herein to the contrary, Customer shall be prohibited from using Array’s Intellectual Property or Confidential Information in order to engage in any business product or services which is competitive with the business of Array.
16. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by electronic mail to such party’s email address as provided in the Order.
17. Assignment. Neither this Agreement nor any of the rights, benefits or obligations hereunder may be assigned by Customer (whether by operation of law or otherwise) without the prior written consent of Array. This Agreement may be assigned by Array after providing Customer fifteen (15) days’ notice of such assignment.
18. Severability. If any term or other provision of these terms and conditions is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of these terms and conditions shall nevertheless remain in full force and effect. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify these terms and conditions so as to effect the original intent of the parties as closely as possible in an acceptable manner as originally contemplated to the greatest extent possible.
19. Injunctive Relief. Customer agrees that damages cannot reasonably compensate Array in the event of a violation of the covenants and restrictions in Paragraphs 13 and 15 of this Agreement and that it would be difficult to ascertain the damages which would be suffered by Array. By reason thereof, injunctive relief is essential for the protection of Array. Customer hereby agrees and consents that Array may obtain preliminary and permanent injunctive relief in order to prevent a threatened or continued violation of the terms of this Agreement, including, without limitation, any subsequent acts, or contracts, which by their nature would result in inevitable disclosure or use of Array’s Confidential Information, or Array’s Intellectual Property. Such injunctive relief shall be in addition to any other remedies available to Array at law or in equity. Any such injunction shall be available upon the posting of a bond in the amount of $1,000.00, and Customer hereby consents to the issuance of any such injunction upon the posting of such bond.
20. Governing Law. This Agreement shall be interpreted in accordance with and governed by, and construed according to, the laws of the State of Colorado. The parties hereto agree that in the event that any dispute arises in any way relating to or arising out of these terms and conditions, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs. Venue for purposes of any action brought in connection with or arising out of this Agreement shall be conclusively presumed to be in the State of Colorado, City and County of Denver and the parties hereby irrevocably consent to jurisdiction in the Colorado State courts and the U.S. Federal courts in said state and county. Notwithstanding the foregoing, Array. may, in its sole discretion, bring an action for injunctive relief in any other court of competent jurisdiction to enforce the provisions of Paragraphs 13 or 15 of this Agreement.
21. Force Majeure. Any delay in or failure of performance by a party under this Agreement shall not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, epidemic, pandemic, quarantine, power outages, war, or failures of the Internet.
22. Entire Agreement. These Terms and Conditions, along with any Order to which these Terms and Conditions govern, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, whether written or oral, between Array and Customer, and no waiver, alteration, or modification of any of the provisions of these Terms and Conditions shall be binding unless in writing and signed by a duly authorized representative of each party. In the event of any inconsistency between the terms of these Terms and Conditions and any Order, these Terms and Conditions shall prevail.