Last Update: February 5, 2019
Thank you for applying to sponsor an Optimizely Event. These terms, together with the Registration Form and Prospectus (the “Sponsorship Package”), form the agreement (“Agreement”) made by and between the Optimizely entity identified on the Application Form (“Optimizely”) and the sponsor identified in the Application Form (“Sponsor” or “You”). This Agreement sets forth the terms and conditions under which Sponsor will participate as a sponsor of the Optimizely event identified on the Application Form (the “Event”). By signing this Agreement or by submitting an Application Form that references it, You are accepting the terms and conditions below. In consideration of the mutual promises contained herein, the parties agree as follows:
The Sponsorship Package defines the sponsorship opportunities and packages available for the Event. Any customizations to a Sponsorship Package must be pre-approved by Optimizely in writing. Subject to the foregoing, the terms and conditions of a Sponsorship Package will control in case of conflict between them and this Agreement.
Although each Sponsorship Package and its opportunities have been set, changes may need to be made. Optimizely reserves the right to make changes to the Sponsorship Package(s) at any time prior to the commencement of the Event. If changes to a sponsorship package are material, Optimizely will promptly notify Sponsor of the change(s) and Optimizely will make reasonable efforts to provide Sponsor a replacement of a similar nature, if requested by Sponsor.
Optimizely will use reasonable efforts to identify activities that have lead scanners in the Sponsorship Package as not all activities have lead scanners. If lead scanners are not available, Sponsor may purchase scanners from an Optimizely approved vendor for the activity(ies) it sponsors.
The Sponsorship Package will specify the fees and expenses associated with Your chosen level of sponsorship for the Event (“Sponsorship Fee”). Except as may otherwise be set forth in the Sponsorship Package, Payment is due net 30 days from the invoice date or prior to the start of the Event, whichever is earlier. Except as otherwise set forth herein, the Sponsorship Fee is non-refundable and non-cancelable. Optimizely reserves the right to revoke or prevent Sponsor’s Event participation in the event of non-payment.
Sponsor is solely responsible for obtaining any license(s) and/or permit(s) it requires in order to participate in the Event. Sponsor is solely responsible for the payment of all taxes (including sales and use taxes), license fees, expenses, or other charges applicable to its participation in the Event, including any taxes collected by Optimizely on Sponsor’s behalf, which shall be invoiced to Sponsor.
4.1. By Sponsor. The Sponsorship Fee is non-refundable and non-cancelable. In the event Sponsor wishes to cancel all or part of its participation in the Event, Sponsor must send notice of cancellation in writing to the Optimizely contact email listed in the Sponsorship Package. Sponsor shall be liable for one-hundred percent (100%) of the total Sponsorship Fee irrespective of the reason for Sponsor’s cancellation.
In the event of cancellation by Sponsor, Optimizely reserves the right to use or resell Sponsor’s canceled Sponsorship Package. Optimizely’s reallocation of Sponsor’s Sponsorship Package shall not excuse Sponsor from payment of the Sponsorship Fees.
4.2 By Optimizely. Optimizely reserves the right, at its sole discretion, to change the location, hours or dates of the Event. Optimizely will use reasonable efforts to notify Sponsors of any such changes as far in advance as possible.
Optimizely reserves the right to cancel the Event or to terminate this Agreement for any reason at any time upon written notice to Sponsor. Upon cancellation or termination by Optimizely, Optimizely’s sole liability to Sponsor, and Sponsor’s exclusive remedy, shall be a refund of the Sponsorship Fees paid by Sponsor under this Agreement. No such refund shall be due if Sponsor has violated this Agreement.
Sponsor agrees not to use any trademarks, trade names, logos, slogans or other intellectual property owned by Optimizely or its affiliated or subsidiary companies (“Optimizely Marks”), except as permitted in, and in accordance with, Optimizely’s Trademark Brand Guide, which is located at the following URL: https://www.optimizely.com/trademarks/ and incorporated into this Agreement by reference. In its sole discretion, Optimizely may withhold or withdraw permission to display items or distribute souvenirs, advertising or any other material containing the Optimizely Marks.
Sponsor grants Optimizely and its employees, agents, contractors or representatives, permission to use, reproduce, combine with other works, and publish worldwide in all media, Sponsor’s trademarks, product names or descriptions and logo(s) and any materials Sponsor provides for the purpose of, or as result of, Sponsor’s participation in Event (collectively with Optimizely Marks (“Marks”)), including, without limitation, posting on websites, or publishing in other print or electronic media, brochures, newsletters, advertisements, and magazines. Optimizely may edit materials only as necessary to conform them to a given media, e.g., changing the size of an image, but will not modify Sponsor’s trademarks or logos in any other way without Sponsor’s prior written consent.
Nothing in this Agreement will create an ownership interest by one party in the other party’s Marks. Any goodwill arising from the use of the Marks will accrue to the owner of the Marks
Sponsor may not issue any announcement or press release regarding the Event, or Sponsor’s participation in the Event, without the prior written consent of Optimizely.
Sponsor will not state or imply that its products or services are endorsed by Optimizely or Optimizely’s affiliate or subsidiary companies, and no approval by Optimizely or any of its affiliated or subsidiary companies of any of Sponsor’s content or participation in the Event will be deemed an endorsement.
In accordance with the Sponsorship Package, Sponsor may be assigned, or have made available to it, a booth, kiosks, exhibit space, conference room(s) or other space for its use during the Event (“Event Space”).
If the Sponsorship Package includes a booth then, when the booth map becomes available, Sponsor will be eligible to submit its booth preference selection. Booth placement is determined solely by Optimizely in its discretion.
Sponsor must confine all demonstrations, promotional activities, and representatives to Sponsor’s designated Event Space. No signs, literature, “chair-drops”, collateral, equipment, furniture, or promotional items may be placed, distributed or posted outside of the Sponsor’s designated Event Space.
Sponsor shall not mark, deface or otherwise damage any furnishings or equipment that is provided, including but not limited to kiosk structures, or the premises. Sponsor shall return all furnishings and equipment, and the premises in as good condition as they were received. Sponsor shall be liable for any damage caused by its failure to adhere to this provision.
Sponsor shall not assign, lend, or share Sponsor’s event space, without Optimizely’s prior written approval.
Sponsor (including its personnel, agents and representatives) must wear identification badges while at the Event and shall conduct its Event participation in a professional manner so as not to be objectionable to Optimizely, other Sponsors, participants, or the public.
Sponsor shall not bring or invite any nonregistered individuals to the Event or any program, session or other activity related to the Event.
Unless approved by Optimizely in advance, Sponsor shall not bring beverages, food, photographers or videographers to the Event. If approved by Optimizely, Sponsor shall comply with any additional conditions required by Optimizely. Sponsor shall not distribute any giveaways, prizes or collateral that would be considered potentially dangerous or destructive, including; pocket knives, box knives, adhesive decals, glitter, laser pointers, or dart guns. Sponsor shall not advertise, market or promote any services or products that compete with Optimizely. “Promote” includes signage, products, demos, presentations, giveaways, and any other marketing pieces.
Anyone visiting, viewing or otherwise participating in the Space is deemed to be the invitee or licensee of Sponsor while so visiting, viewing or otherwise participating in Sponsor’s exhibit or Space, rather than the invitee of Optimizely.
Sponsor shall comply with all applicable laws, rules, regulations, ordinances, codes and statutes with respect to the conduct of its exhibit. Optimizely reserves the right to restrict or prohibit exhibits or content which, because of noise, method of operation, content, or any other reason, are objectionable or otherwise detract from or are out of keeping with the character of the Event as a whole. Optimizely reserves the right to close, remove or require changes in any exhibit or to remove any of Sponsor’s personnel, agents, representatives, independent contractors, invitees or guests who are deemed detrimental to Optimizely, the Event, other sponsors, or the public.
Any non-public terms and conditions of this Agreement, including the Sponsorship Package and the Sponsorship Fee, are the confidential information of Optimizely. Sponsor will not disclose the existence of this Agreement or such terms to any third party without Optimizely’s prior written consent. Sponsor must not disclose the existence of the event until it has been publicly announced by Optimizely.
EXCEPT FOR THE WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER PARTY, NOR ITS SUPPLIERS, AGENTS, REPRESENTATIVES OR EMPLOYEES MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EACH PARTY WARRANTS THAT IT HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT ITS PARTICIPATION IN THE EVENT WILL NOT VIOLATE ANY OTHER AGREEMENT OR UNDERSTANDING BETWEEN THE PARTY AND A THIRD PARTY. ANY OPTIMIZELY MARKS AND ANY EVENT SPACE PROVIDED TO SPONSOR UNDER THIS AGREEMENT, IS LICENSED AND PROVIDED ON AN “AS IS” BASIS. OPTIMIZELY SHALL NOT BE LIABLE FOR PREEXISTING CONDITIONS OF THE SPACE OR FOR CONDITIONS OUTSIDE OF OPTIMIZELY’S DIRECT CONTROL THAT ARISE DURING THE PERIOD OF SPONSOR’S USE.
Sponsor will indemnify and hold Optimizely, its parent, affiliates and subsidiary companies, and their officers, directors, employees and agents (the “Indemnified Parties”) harmless for and from any alleged or actual claim for any costs, losses, or fines, penalties, or expenses (including reasonable attorneys’ fees) arising from or related to: (1) any damages to real or personal property, or personal injury to any person, directly or indirectly caused by Sponsor or Sponsor’s employee or contractor in connection with the Event; (2) any failure to comply with any applicable laws and regulations, including those related to the collection, use, sharing, disclosure and storage of personal information; and (3) any claim that the Indemnified Parties’ use of any content provided by Sponsor for the Event infringes or misappropriate any third party’s intellectual property, publicity, privacy, confidentiality or other right, provided that in no event will the Indemnified parties’ approval or use of Sponsor’s products or any other materials provided by Sponsor for the Event, or the Indemnified Parties’ approval of Sponsor’s use of Event marks, affect the Indemnified Parties’ right of indemnification as described in this paragraph. This provision will survive the termination or expiration of this Agreement.
To the maximum extent permitted by applicable law, neither party shall be liable to the other for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data, or use, incurred by the other, whether such action is in contract or tort, even if the other party has been advised of the possibility of such damages. Optimizely’s entire liability for damages hereunder shall in no event exceed the Sponsorship Fee paid by Sponsor under this Agreement. This Section shall not apply Sponsor’s obligations under Sections 11 (Indemnity) or to either party’s liability for fraud, death or personal injury to the extent caused by its intentional misconduct or gross negligence.
Sponsor will ensure that it maintains full and comprehensive insurance policies with reputable insurers to cover any liability that may reasonably arise during the course of the Event, and will provide Optimizely, or its designated agent, with a copy of its certificate of insurance upon request. For events in the United States, the certificate of insurance must evidence the following coverage: (a) Commercial General Liability in the amount of $2,000,000 combined single limit and (b) Workers Compensation providing statutory coverage and Employers Liability in the amount of $1,000,000.
Sponsor authorizes Optimizely to provide contact information, including its address, phone number, fax number, email address and contact person, to the Optimizely event and marketing team, and any Optimizely vendor contracted to conduct work for this Event, as well as to the Event location owner and its employees, agents and contractors.
Notwithstanding any other terms or conditions of this Agreement, if Optimizely provides Sponsor with Personal Data (as defined by the General Data Protection Regulation 2016/679 (“GDPR”) and related European Union statutes and regulations)) in connection with the Event, Sponsor will ensure that it uses such information in compliance with applicable laws including, without limitation, GDPR and U.S. CAN-SPAM Act.
Further, for any Personal Data, Optimizely and Sponsor will each be considered a controller. Each will, at a minimum, (a) not transfer Personal Data outside of the EU without adequate contractual protections in place; (b) recognize that Data Subjects (as defined in the GDPR) may have the right to obtain certain information about the processing of their Personal Data through a Subject Access Request (as defined in the GDPR), or may request rectification, erasure or blocking of their personal data under European Union laws and regulations; (c) agree to provide reasonable assistance as necessary to the other to enable compliance with Subject Access Requests and to respond to any other queries or complaints from Data Subjects, … (z) In the event of a dispute or claim brought by a data subject or the Data Protection Authority concerning the processing of Shared Personal Data against either or both parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
16.1 Term, Survival, and Severability. The term of the Agreement will be from the day the Sponsor’s application is accepted by Optimizely until one calendar day following the end of the Event. Any clause, that by its nature is intended to survive, will survive. If any provision of these Terms is held invalid, illegal or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that these Terms otherwise remain in full force and effect. Further, the provision that is held to be invalid, illegal or unenforceable shall remain in effect to the extent possible under applicable law.
16.2 Relationship and Assignment. Nothing in this agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, designate any party as the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party. The rights granted by this Agreement are personal in nature. Sponsor may not assign this Agreement in whole or part to any third party without the prior written consent of Optimizely.
16.3 Force Majeure. Optimizely shall not be responsible for any loss or damage resulting from failure to perform under this Agreement or to conduct the Event as currently scheduled in whole or part as a result of riot, strike, civil disorder, act of war, failure of facilities, earthquake, storm, fire, flood, or other acts of God, or any reason of any kind whatsoever beyond the reasonable control of Optimizely. In such event, Optimizely will make reasonable efforts to reschedule the Event. Notwithstanding any other terms or conditions of this Agreement, should it ultimately be impossible to hold the Event due to a force majeure event, Optimizely may retain or will be due such portion of the Sponsorship Fee as necessary to compensate Optimizely for expenses reasonably incurred up to the time the force majeure event occurred. All payments in excess of such expenses shall be refunded.
16.4 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
16.5 Governing Law; Jurisdiction. For Event(s) occurring in North America, this Agreement and all matters arising out of or relating to it is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in San Francisco County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts, or for Event(s) occurring anywhere else in the world this Agreement and all matters arising out of or relating to it is governed by the laws and courts of England and Wales, without regard to choice or conflict of law rules thereof.
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