Terms of Service
The following Terms of Service (“Terms of Service”) govern your access to and use of this website, including any subdomains and mobile versions (collectively, the “Sites”) as well as the Maestro Platform (defined below) which we offer to our business customers. By using our Sites or entering into an agreement for the Maestro Platform (the “Agreement”), you are accepting and agreeing to be bound by these Terms of Service.
In these Terms of Service, the words “Maestro,” “we,” and “us” refer to Maestro Interactive, Inc. The words “Customer” and “you” refer to the customer of our products or services, whether a corporation, government agency, or other entity, as identified on the cover page or other customer information section of the Agreement. You may not use the Maestro Services unless you accept these Terms of Service and have the power and legal right to form a contract with us. Any individual subscribing to our services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Terms of Service, and any individual having access to our software or services under Customer’s account may access and use them only in accordance with these Terms of Service.
a. "Authorized User” means an individual employee or agent of yours who has been assigned unique credentials to access and use the Maestro Services.
b. “Broadcast Hours” is the amount of time content is broadcast via the internet and made available to watch. This metric is calculated as the amount of hours content is sent from an encoder to the transcoding service which converts the source input into a variety of quality levels and formats to ensure playback on a wide variety of devices and bandwidth conditions.
c. “Customer Data” means the video content, data and information provided by Customer and made available to Maestro in the course of Customer’s use of the Maestro Service. For clarity, Customer Data may include User Data. Customer Data does not include Platform Generated Data.
d. “Customer Site” means the page(s) provided to you on the Maestro Service on which you may feature your content, offerings or services.
e. “Customer Success Manager” is a dedicated Maestro team member offering a consultative service to provide training, strategic advice, and best practices as needed via direct communication either over the phone during scheduled calls or email. All efforts will be made to accommodate requests however Maestro does not guarantee support outside of business hours, Monday-Friday 8am-5pm Pacific Time, unless arranged specifically in advance.
f. “End User” is any consumer or other end user who accesses your Content, enters into Transactions, engages in Merchandise Sales, or otherwise interacts with you and your branded areas within the Maestro Platform.
g. “End-User Support” is a service whereby Maestro will handle communication directly with end users, on your behalf, to resolve issues pertaining to ticketing and subscriptions according to your chosen refund and cancellation policies. End-User Support hours are Monday-Friday, 8am-5pm Pacific Time. If an event falls outside of these hours, Maestro will work with you to accommodate support.
h. “Event Support” is a service in which a person from the Maestro team is available in real-time to assist you with any technical issues that may arise during your event. This service must be requested at least one week in advance of the event, otherwise Maestro cannot guarantee availability but will make commercially reasonable efforts to accommodate the request.
i. “Intellectual Property Rights” means any and all rights arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other jurisdiction in the world: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations-in-part, reexaminations, reissues, and renewals related thereto), copyrights (including, but not limited to, any applications, registrations and renewals related thereto), trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, trade secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated.
j. “Maestro Platform” means the hosted, web-based technology platform developed by Maestro that permits its customers to upload, host, manage and edit content so that users may access and use such content, including all Updates, all Software incorporated therein, any written materials and other documentation that Maestro may make available, and all Intellectual Property Rights in the foregoing.
k. “Maestro Services” means access to and use of the Maestro Platform and the Platform Generated Data as described below.
l. “Merchandise Sales” means transactions that occur through Maestro via integration with third party ecommerce services such as Shopify.
m. “Order Form” means Maestro’s order form, as submitted by Customer and accepted by Maestro, that specifies the licenses and services being purchased by Customer, and that references these Terms of Service or is otherwise made a part of the Agreement.
n. “Ticketing and Subscription Transactions” or “Transactions” mean purchases of tickets or subscriptions that occur through the Maestro Platforms which requires the user to buy a ticket or subscription, as specified by you, in order to access the content or event.
o. “Platform Generated Data” means any data which may be generated, recorded or automatically collated by the Maestro Platform in the course of providing the Service including, without limitation, aggregated or anonymized data that cannot be linked to individual End Users, data relating to the frequency and mode of use of the features and functionality of the Service by End Users, preference settings and personalization of the Service by End Users, the time spent on different elements of the Service, the geographical location of End Users, types of browsers and devices and other technical and statistical information derived from the operation of the Maestro Platform and its use by End Users. For the avoidance of doubt, Platform Generated Data excludes Customer Data and User Data.
p. “Plans” refer to the packages offered to you which govern fees associated with your use of Maestro. Details of the Plan are included in the Order which may include usage as well as overage fees for each usage metric.
q. “Software” means all software, technology, implementation tools, editing tools, documentation, text, typefaces, graphics, logos, button icons, images, audio clips, designs, illustrations, configurations, displays, screens, concepts, storyboard process, and other materials.
r. “Unique Viewers” is our best estimate of the distinct number of people who visited a Site, measured as the sum of unique logged in users and unauthenticated devices.
s. “Update” means any functional improvement, bug fix, or other development that is incorporated into the Maestro Platform other than a Modification.
t. “User Data” means the data and information provided by Customer’s End Users to either Customer or to Maestro when they use the Maestro Platform, including, but not limited to, end user names, email or postal addresses, phone numbers and account information (excluding, for the avoidance of doubt, data generated or collected automatically by the Maestro Platform in the course of or in connection with end users’ use of the Service).
u. “Viewer Hours” The sum of all hours watched using Maestro streaming (live or on-demand). For example: If User A watches live for 30 minutes and User B watches an on-demand video for 30 minutes, that is 1 Viewer Hour.
3. Services And License
a. Use of Sites and Content. Maestro grants you a non-exclusive right to access and use the Sites and the data, material, content, or information herein (collectively, the “Content”). You agree to use the Services only for lawful purposes, comply with all rules governing any transactions on and through the Services and comply with applicable laws.
d. Customer Data and Security. Maestro shall put in place commercially reasonable security measures to protect against unauthorized access, alteration, disclosure, and destruction of the Customer Data, where possible employing industry standard technologies to do so. If Customer’s Order Form includes a Data Processing Annex, such Data Processing Annex shall have effect in accordance with its terms in relation to the processing of personally identifiable data as part of the Maestro Service.
e. Usage Limitations. In addition to these Terms of Service, your rights to access and use the Maestro Services are subject to the volumes of usage included in the Plans with usage above the volume included subject to overage fees. Such limitations are subject to change from time to time in the discretion of Maestro.
f. Availability. We will use reasonable efforts to make the Maestro Services available without material interruption, subject to periodic downtime for scheduled maintenance; however, the parties recognize that Internet connectivity issues, unavailability of third-party databases and systems, or other factors outside of our reasonable control may limit or restrict this availability from time to time. We will use reasonable efforts to restore service in the event of unplanned unavailability within our control, and to provide you with advance notice of any scheduled unavailability. If Customer’s Order Form includes service-level commitments, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached thereto. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and Maestro’s entire obligation, with respect to any service-level violation.
g. Maintenance and Support. If the Order Form or Maestro’s relevant documentation states that you will receive maintenance and/or technical support in connection with the Maestro Services, then (unless otherwise set forth in the Order Form or such Maestro documentation): (i) maintenance will consist of access to new features or performance improvements in the Maestro Services if and when Maestro makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) technical support will consist of first-level telephone or email assistance in accordance with Maestro’s standard practices and procedures.
h. Change in Services. Maestro reserves the right to modify the Sites, the Maestro Platform or any aspect of the Maestro Services at any time. To the extent new Content or features are added to our Sites or the Maestro Platform in the future, your use thereof is subject to these Terms of Service.
4. Customer Responsibilities
a. Generally. You retain full responsibility for your and your Authorized Users’ and your End Users’ use of the Maestro Services. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Maestro Services, including, without limitation, modems, hardware, software (including web browsers and operating systems), networking, web servers and the like, for ensuring the security of such equipment (as well as other security measures described below), and for all uses of Customer account or equipment with or without Customer’s knowledge or consent. For clarity, the preceding sentence does not diminish any usage restrictions or limitations set forth in the Agreement.
b. End User Terms. You must post on your Customer Site or otherwise provide an agreement to your End Users, which will be applicable to any Transactions or Merchandise Sales, or otherwise viewing or using your branded areas or Customer Content through the Maestro Services. For your convenience, we have provided a default End User License Agreement (the “Default EULA”) which is set as the default agreement between you and your End Users unless you choose to modify the EULA or provide your own terms. However, we make no representations and warranties with regard to the content of the Default EULA and whether it will meet your needs with regard to your contemplated Merchandise Sales, Transactions, or other interactions with your End Users. If you choose not to use our Default EULA, your separate agreement with your End Users shall, at a minimum, contain a disclaimer of warranties and limitation of liability with regard to Maestro, which are at least as protective of Maestro as those set forth in the Default EULA.
c. General Restrictions. You may not: (i) copy, reproduce, modify, adapt, decompile, disassemble, or reverse engineer the Maestro Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) use, modify, reproduce, sublicense, distribute, loan, lease, sell, license, or otherwise distribute or provide third parties with access to the Maestro Services, or use them for time sharing or similar purposes for the benefit of any third party, except as expressly permitted under these Terms of Service; (iii) remove, modify or obscure any copyright or proprietary notices contained in the Maestro Services or any output thereof; (iv) breach, disable, tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Maestro Services; (v) provide Customer Content that violates our Content Guidelines (described below); (vi) introduce or transmit any virus or other malicious code to or through the Maestro Services; (vii) access or use (or permit a third party to access or use) the Maestro Services for purposes of monitoring the availability, performance or functionality of the Maestro Services or for any other benchmarking or competitive purposes (viii) access or use (or permit a third party to access or use) the Maestro Services for any unlawful purpose or any manner not authorized by these Terms of Service.
d. Content Guidelines. All Customer Content must comply with the following Content Guidelines. Customer Content may not include any content that:
i. violates any laws, contains any threats, is abusive, harassing, vulgar, obscene, indecent, violates any person's rights of privacy or publicity, is defamatory, libelous, hateful, contains any disparaging statements or opinions regarding racial, gender or ethnic background, or is otherwise tortious or objectionable;
ii. infringes any intellectual property rights or other rights of any party, including, but not limited to any patent, trademark, trade secret, copyright or other proprietary rights;
iii. contains any private information about an identifiable person without that person's permission, or any content soliciting any personal or private information from any individual;
iv. you know or have reason to know is false, misleading, or fraudulent;
v. you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or
vi. contains links to any websites containing content violating any of the foregoing requirements, or links to any websites for purposes of disrupting the operations of such website, harassing the owners of such website, or other objectionable or illegal purposes.
e. Compliance. Customer is solely responsible for ensuring that Customer and its Authorized Users are aware of and comply with these Terms of Service, and all laws and regulations that pertain to your use of the Maestro Services or the information made available through the Maestro Services. Customer represents and warrants that it and its Authorized Users are knowledgeable as to all federal, state, and local laws and regulations pertaining to Customer’s business, operations or intended use of the Maestro Services. Customer is solely responsible for the lawful operation of any promotions, sweepstakes or contests Customer administers or offers via the Maestro Services, including any necessary bonding and registration with any State authority and any required Terms of Service; and developing and communicating rules governing Customer’s promotions, sweepstakes or contests Customer administers or offers using the Maestro Services, which rules must state the basic parameters of the giveaway, including, but not limited to, how to enter, when to enter and any eligibility requirements. Customer is also solely responsible for maintaining any Customer Data in accordance with applicable laws, and for responding to data requests from End Users and taking other measures required by data privacy and security laws.
f. Cancelled Events. Maestro is not a party to the agreement between an End User and you for the sale and purchase of access to content using our system to provide ticketing or subscriptions, or other Maestro Services. If you cancel, reschedule, or amend in any way an event it is your responsibility to communicate with your End Users and update or remove the event. We reserve the right to remove any event that has been cancelled.
h. Your Security Measures. You agree to limit access to administrative privileges on your Customer Site to only those Authorized Users who have a need to know the output of the same as a part of their official duties for you. You must immediately deactivate (or notify us to deactivate) the access credentials of any of Authorized User who has been terminated or who no longer has a need to know. You shall ensure that your Authorized Users keep their access credentials secure and that individual credentials are assigned to and known by no more than one Authorized User. You shall take reasonable and appropriate (and all legally mandated) administrative, technical, and physical security measures to prevent unauthorized physical or electronic access to the Maestro Services by any unauthorized persons, and to prevent any unlawful access to or use of Your Data. You shall also use industry standard security measures to maintain the security of your equipment used in connection with the Maestro Services, including without limitation all account passwords and files, and the use of such equipment.
5. Fees and Payment
a. Fees. In consideration for our providing the license and services under the Agreement, you agree to pay us the monthly subscription fees and overage fees beyond that included in the Plan selected and set forth in your Order, as well as any applicable service fees (e.g. as associated with End User Transactions). For example, Maestro charges each End User a service fee of 15% of the face value of the ticket or subscription purchased, which will be payable to Maestro. Maestro will use the service fee in part to pay the payment processing fees due to Stripe associated with the ticket or subscription transactions. We will process your payment via credit card in US dollars.
b. Renewal Fees. For each subscription Renewal, recurring fees will be billed and paid at the rates specified in the Order Form or, if applicable, such other rates as we may establish with notice to you prior to Renewal.
c. Excess Usage Fees. Our service plans may include usage limits as indicated in the Order Form or our applicable published documentation. If usage under your account exceeds the applicable limits, we may upgrade you to a higher service plan as needed to cover the additional usage and charge you for the difference in service plan fees at our then-current published rates.
d. Billing; Payment. Unless otherwise specified on the Order Form, we will bill you in advance at the beginning of the subscription period and each Renewal (and, in the case of excess usage fees, upon upgrading you to a higher service plan). All payments shall be made in U.S. dollars via the payment methods approved based on the plan you have selected, in accordance with instructions provided by Maestro. If the Order Form specifies payment by credit card or another method that we can initiate, you authorize us to initiate such payment at that time, and in any case, any invoice not paid within thirty (30) days of the invoice date will be overdue. Overdue amounts will accrue interest at the rate of 1% per month, but in no event greater than the highest rate of interest allowed by law. If at any time an invoice remains unpaid for ninety (90) days, Maestro may (in addition to termination rights set forth herein or in the Agreement) suspend Customer’s access to the Maestro Services and may engage a collections agency to collect the full amount due, including the Total Minimum Commitment specified in the Order Form, and any additional usage fees.
e. Taxes. The fees for Transactions specified in the Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Maestro will collect sales taxes on Transactions and remit such taxes to the applicable authorities in any state or country in which we have a nexus. In all other states and countries, you will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than our U.S. federal and state income taxes, associated with your End User Transactions and Merchandise Sales. Please contact your Maestro Customer Success Representative for more information.
f. Changes. The volume of usage included and usage overages fees in each Plan may change from time to time as communicated to you by Maestro 30 days in advance of any change and go into effect upon the subsequent monthly Renewal of your Plan.
g. Plans: Unless otherwise specified in your Order Form, current details of each Plan along with outlines of included usage and overage fees are detailed here.
h. End User Transactions and Payouts.
i. In order to receive payouts from End User Transactions, our Customers must register for a Stripe account (although we reserve the right to change the payment provider we use at any time, and we will provide notice to all Customers prior to implementing such change). Your use of Stripe is subject to Stripe’s Terms of Service, as they may be modified from time to time. Please note that if you are not approved by Stripe to obtain a Stripe account, you will not be able to receive payouts from End User Transactions.
ii. When you use Stripe to facilitate End User Transactions, funds from your Transactions with End Users will initially be deposited into our Stripe account, and we act as the custodian of such funds before we disburse such funds into your account. We reserve the right to establish limits on the total amount of any given Transaction or cumulative Transactions within a specified time period. We may also in our discretion impose a reserve requirement on your account. The service fees you pay to us in connection with End User Transactions include the fees charged by Stripe for such Transactions. We will retain the service fee charged to End Users as noted above, and we will use the service fee to pay the Stripe fees associated with those Transactions.
iii. You hereby appoint Maestro as your agent with respect to facilitating the receipt of payments from End Users through Stripe for payments on the Maestro Service, and the disbursement of those payments to your account. You agree that you will treat a payment by an End User to Maestro on your behalf in the same manner as if it were paid directly to you, and you will fulfil all Transactions for which the End User has paid regardless of whether you ever receive such funds from Maestro. Customers are generally responsible for handling their End User refunds and cancellations, with the exception of Customers who have purchased the “End-User Support” add-on through their enterprise plan.
iv. Please note that the timing of our payouts to you may differ depending on whether the payout is from an event or a subscription. With regard to ticket sales, the following shall apply:
95% of (Customer earnings for a given Ticket - chargeback fees - refunds that occurred within 3 days of the Ticket Event Date) are paid out 3 days after the Ticket Event Date.
The remaining (5% - chargeback fees - refunds) is paid out 60 days after the event date for that ticket
v. With regard to subscription sales, the following shall apply:
95% of (Customer earnings for a given Subscription - chargeback fees - refunds) are paid out 30 days after the date of each transaction.
The remaining (5% - chargeback fees - refunds) is paid out 60 days after the date of each transaction.
vi. For Customers using our e-commerce solution (currently integrated with Shopify) Maestro acts as a sales agent for the Customer’s store. In this situation, all orders and payments are processed directly by Shopify. In these Transactions, at the point of purchase, Shopify automatically deducts 5% from the pre-tax and shipping total, and pays that amount to Maestro.
i. Ticketing or Subscription Fee: Each Ticketing or Subscription Transaction incurs a license fee calculated as a percentage of the face value (i.e. the price) you set for the ticket or subscription. This fee is passed onto your End User as a Service Fee added at the time of purchase and is inclusive of all processing fees associated with the transaction. If you do not wish to pass the Service Fee to the End User, you alternatively have the option to effectively pay this fee yourself in which case it will be deducted from your earnings prior to payout.
j. Merchandise Fee: Merchandise transactions incur a fee as a percentage of the gross sales value excluding shipping and taxes and are automatically deducted at the point of purchase. If you are using our e-commerce solution, this will be deducted by Shopify as noted above.
k. Tipping. Tipping may be available for certain Transactions, e.g. when an End User views live-streaming content, if tipping is enabled, the user may leave a tip. Tips will be allocated 90% to the Customer and 10% to Maestro. The payout schedule for tips may be determined on a case-by-case basis depending on the type of content.
6. Term And Termination
a. Duration and Automatic Renewal. Your subscription for the Maestro Services will remain in effect throughout the initial subscription term specified in the Order Form (unless terminated as set forth below), and will automatically renew for successive periods of one year or such other duration as may be specified in the Order Form (each, a “Renewal”) unless either party gives the other party written notice of non-renewal at least thirty (30) days in advance. The Agreement will expire at the end of your subscription as described above.
b. Termination. Unless otherwise stated in your Order Form (e.g. for Enterprise and Business accounts), Maestro reserves the right to terminate a Customer’s Agreement, or terminate the Maestro Platform, the Maestro Services, or any features or functionality therein, at any time, with or without cause, and with or without prior notice. In the event that we terminate a particular Customer’s Agreement prior to the expiration of that Customer’s active and fully-paid subscription, we will issue to such Customer a prorated refund of prepaid fees for the period affected by our termination. However, if we terminate an account because the Customer has committed a violation of these Terms (including without limitation a violation of our Content Guidelines listed above), we reserve the right to terminate that account without any refund whatsoever. In addition, we reserve the right to de-activate the login credentials of any individual Authorized User of an account at any time without notice if we believe such Authorized User has violated these Terms. No refunds will be provided due to de-activations of any Authorized User so long as the account itself has not been terminated.
c. Effect of Termination; Survival. Maestro may terminate your use of your Customer Site or any of the Sites at any time without notice. In addition, upon expiration or termination of the Agreement for any reason, all outstanding fees will immediately become due and payable, your subscription for the Maestro Services will automatically terminate, and you will immediately cease using the same. The following provisions will survive expiration or termination of the Agreement: Sections 4 c, e, f, g, 5 (to the extent of any outstanding payment obligations), 6, 7, 8, 9, 10, 11, and 12.
7. Intellectual Property, Data, And Security
a. Digital Millennium Copyright Act. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any Content accessible on or from the Maestro Platform infringes your copyright, you may request removal of that Content by submitting written notification to our copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
i. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the service are covered by a single notification, a representative list of such works from the service;
iii. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
iv. information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
vi. a statement that the information in the notification is accurate; and
vii. under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Upon removing any allegedly infringing material, the Company will notify the alleged infringer of such takedown. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. It is Maestro’s policy to terminate the accounts of repeat infringers, in accordance with the DMCA. Our designated copyright agent or authorized official to receive notifications and counter-notifications of claimed infringement is: firstname.lastname@example.org
b. Maestro Intellectual Property. As between Maestro and Customer, Maestro is and will remain the sole owner of the Maestro Services and all software and technologies embodied in or used to provide the Maestro Services, including the Maestro Platform and the Platform Generated Data, and all Intellectual Property Rights therein or relating thereto. We reserve all rights in the foregoing other than the limited, non-exclusive license and access rights that we expressly grant to you in these Terms of Service. If you provide any suggestions or other feedback in relation to our products and services, we will be free to use (or not use) the same without restriction and without any compensation or other obligations to you.
c. Customer Data. Maestro acknowledges and agrees that, as between Customer and Maestro, all worldwide right, title and interest in and to the Customer Data is and shall remain the exclusive property of Customer, subject only to the rights expressly granted to Maestro under this Agreement. The parties acknowledge and agree that we will transmit, store, and otherwise process Customer only as a data processor, and not as a data controller.
d. Our Security Measures. We will employ reasonable and appropriate data security and backup procedures, and other safeguards to reasonably protect Your Data as stored or otherwise processed by the Maestro Services.
a. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by one party to the other in connection with the Agreement or the Maestro Services that is designated as confidential or should be reasonably understood to be confidential (including our pricing). The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Terms of Service. Notwithstanding the foregoing, the receiving party may disclose the other party’s Confidential Information (a) to employees and personnel, including the employees, agents, and personnel of affiliates and its subcontractors, that have a need to know such information, provided that each such person is under a duty of nondisclosure that is consistent with the confidentiality and nondisclosure provisions herein, and (b) to the extent the receiving party is legally compelled to disclose such Confidential Information, provided that the receiving party shall give advance notice of such compelled disclosure to the other party, and shall cooperate with the other party in connection with any efforts to prevent or limit the scope of such disclosure or use of the Confidential Information. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
b. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 9.
c. Remedies. The parties recognizes that the Confidential Information is of a special, unique, extraordinary and intellectual character, which gives it peculiar value, the loss of which may not be reasonably or adequately compensated in damages in any action at law and that a breach of this Section 8 may cause irreparable injury and damage. In addition to any other remedies in equity or at law, the disclosing party will be entitled to seek the remedies of injunction, specific performance and other equitable relief to prevent a breach of this Section 8 by the receiving party without the necessity of proving damages.
a. EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE, THE MAESTRO SERVICES AND ANY RELATED MATERIALS OR SERVICES WE MAY FURNISH UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. MAESTRO DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
a. By Maestro. We will defend and indemnify you against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against you to the extent based upon an allegation that the Maestro Services, as furnished by Maestro hereunder and used by Customer within the scope of these Terms of Service, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MAESTRO WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE MAESTRO SERVICES. Maestro will have no liability under this paragraph to the extent that any Claims are based on any combination of the Maestro Services with products, services, methods, content or other elements not furnished by Maestro or otherwise approved by Maestro, or any use of the Maestro Services in a manner that violates these Terms of Service or our applicable documentation.
b. Mitigation Measures. In the event of any Claim or potential Claim covered by the preceding paragraph, Maestro may, in its discretion, seek to mitigate the impact of such Claim by modifying the Maestro Services to avoid the infringement, and/or by suspending or terminating your access to the Maestro Services upon reasonable notice (provided, in the case of such suspension or termination, that we will refund a portion of any fees that you have prepaid for the then-current subscription period, based on the portion of that subscription period that is affected by our suspension or termination).
c. By Customer. You will defend and indemnify us against any Claims (i) arising from or related to your violation of the Agreement, (ii) based upon an allegation that the Customer Data or other trademarks delivered to Maestro by Customer, when used as permitted hereunder, infringe any copyright or any U.S. patent or trademark rights of any third party; or (iii) made by a Customer or other party arising from or related to your cancellation of a Transaction or event, or otherwise arising out of or related to any Customer Content or the manner in which you operate your account or use the Maestro Services.
d. Procedures. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
11. Limitation Of Liability
a. Wavier of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAESTRO AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, (COLLECTIVELY, THE “MAESTRO ENTITIES”) WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAESTRO SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY ERASURE, DAMAGE OR DESTRUCTION OF CUSTOMER DATA. CUSTOMER SHALL BE RESPONSIBLE FOR MAKING BACKUP COPIES OF CUSTOMER DATA.
b. Liability Cap. THE CUMULATIVE LIABILITY OF THE MAESTRO ENTITIES FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO MAESTRO UNDER THE AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
c. Basis of Bargain. The foregoing exclusions of damages and limitations of liability, and the allocation of risk they represent, are an essential, bargained-for part of the Agreement, and will apply to the fullest extent permitted by law, even if any limited remedy fails of its essential purpose.
a. Publicity. Maestro may identify Customer, by name and by logo, as a customer of the Maestro Services on Maestro’s website and other marketing and investor materials. Otherwise, neither party will issue any press release or other public communications regarding the parties’ relationship under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld.
b. Assignment. You may not assign the Agreement, in whole or in part, without our prior written consent, which will not be unreasonably withheld. Any attempt by you to assign the Agreement without such consent will be null and of no effect. We may assign the Agreement to any of our affiliates or to any successor or acquirer of our business or of our rights or assets associated with the Maestro Services. Subject to the foregoing, the Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
c. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation, or the like, so long as such party makes every reasonable effort to perform as circumstances permit.
d. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Maestro Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by such export laws and regulations.
e. Government Rights. If Customer is the U.S. government or any agency or other division thereof, Maestro’s software and services are furnished under the Agreement as “commercial items,” and more specifically as “commercial computer software” and “commercial computer software documentation” (as applicable), as those terms are defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to such software and services (and to any associated technical data or other materials) are limited to those rights expressly granted in these Terms of Service.
f. Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, its remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
g. Waiver. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
h. Limitation on Claims. Any cause of action or claim you may have arising out of or relating to these Terms or the Site must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
i. Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify by notice as described above. Notices will be deemed to have been given upon receipt.
j. Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the state of California, County of Los Angeles, or the United States District Court for the Central of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be effected by delivery of the summons to the address of the party specified on the Order Form or such other address as either party may specify by notice as described above.
k. Revisions to Terms of Service. We may change these Terms of Service and our policies from time to time. We may inform you of any such changes by posting the revised version to our website at the same URL as the original version. Unless otherwise agreed by the parties, any such changes will take effect for your subscription upon the next Renewal if we have posted or otherwise informed you of the revision prior to the deadline for giving non-renewal notice.
l. Entire Agreement. These Terms of Service combined with the Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.