Pink Elephant
The IT Management Experts
19th Annual International IT Service Management Conference & Exhibition
Las Vegas, NV - February 15-18, 2015

 

TERMS OF USE




PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS YOUR USE OF THE 19th Annual International IT Service Management Conference & Exhibition WEBSITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND ANY SUBSEQUENT MODIFICATIONS THERETO. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS PLEASE DO NOT USE AND DISCONTINUE YOUR USE OF THE 19th Annual International IT Service Management Conference & Exhibition WEBSITE.


Any capitalized terms have the meaning provided to them in Section 15.


1. PARTIES
In this Agreement, "You", "Your" and "Yourself" refers to the individual to whom the email containing the Authentication ID and the initial Password was addressed and, if applicable, the company, partnership or other organization for whom the individual works for; and "Pink" refers to Pink Elephant Inc.


2. AUTHENTICATION IDS
(a) Personal Use: You acknowledge that use of the Authentication ID and the associated Password is subject to the terms of this Agreement. The Authentication ID and initial Password issued to the individual by Pink is for such individual’s use only. The Authentication ID and Password may not be shared with any other Person.
(b) Control: You shall control and maintain the security of the Authentication ID and Password used by You in relation to Your access to the 19th Annual International IT Service Management Conference & Exhibition Website. You shall be solely responsible for all instructions, commitments and other actions or communications taken under Your Authentication ID and Password. You shall promptly report to Pink if Your Authentication ID and Password becomes known to any third Person.


3. LICENSE
(a) Grant by Pink: For the duration of the Term, and subject to the terms and conditions of this Agreement; such policies and procedures, which are established by Pink from time to time in relation to the access and use of the 19th Annual International IT Service Management Conference & Exhibition Website, Pink hereby grants to You a non-exclusive, non-transferable, revocable right, for Your internal business purposes, to access, view, display and, subject to Section 3(b), download copies of the Pink Content contained on the 19th Annual International IT Service Management Conference & Exhibition Website. The license granted herein is a personal license to You only. This license is a single user license and does not permit any other individual or Person to access and use the 19th Annual International IT Service Management Conference & Exhibition Website or use the Pink Content. Any use by another individual of the 19th Annual International IT Service Management Conference & Exhibition Website or the Pink Content shall require payment of a separate fee and agreement to a separate 19th Annual International IT Service Management Conference & Exhibition terms of use.
(b) Pink Content: Once downloaded, You may use the Pink Content in relation to any of Your internal information technology development projects.
(c) Restrictions on Use: Any rights not granted herein are strictly reserved by Pink. Neither You nor Company shall: (i) permit, any affiliate, or third Person, to use the 19th Annual International IT Service Management Conference & Exhibition Website or the Pink Content, (ii) re-license or sub license, lease, loan or otherwise distribute the Pink Content to any third Person; or (iii) use the 19th Annual International IT Service Management Conference & Exhibition Website or the Pink Content in the operation of a service bureau. Neither You nor Company shall, and shall not permit others to, reverse engineer, decompile, disassemble or translate any software used by Pink in relation to the 19th Annual International IT Service Management Conference & Exhibition Website or otherwise attempt to view, display or print such software’s source code.
(d) Conditions For Using 19th Annual International IT Service Management Conference & Exhibition Website: While visiting the 19th Annual International IT Service Management Conference & Exhibition Website, You may not, nor may You allow others to, directly or indirectly: (i) use the 19th Annual International IT Service Management Conference & Exhibition System in any manner that could damage, disable, overburden or impair the 19th Annual International IT Service Management Conference & Exhibition System; (ii) interfere with the security of, or otherwise abuse the 19th Annual International IT Service Management Conference & Exhibition System, in particular the 19th Annual International IT Service Management Conference & Exhibition Website; (iii) disrupt or interfere with any other Person’s use or enjoyment of the 19th Annual International IT Service Management Conference & Exhibition Website; (iv) upload, post or otherwise transmit on the 19th Annual International IT Service Management Conference & Exhibition Website any Objectionable Content or Virus or that imposes an unreasonable or disproportionately large load on the 19th Annual International IT Service Management Conference & Exhibition System; (v) use any robot, spider or other automatic program or device to monitor, copy, summarize, or otherwise extract information from the 19th Annual International IT Service Management Conference & Exhibition Website or the Pink Content in whole or in part; (vi) use or attempt to use another’s account, password, service, system or other information; (vii) create or use a false identity on the 19th Annual International IT Service Management Conference & Exhibition Website; (viii) attempt to obtain unauthorized access to the 19th Annual International IT Service Management Conference & Exhibition Website or portions of the 19th Annual International IT Service Management Conference & Exhibition Website that are restricted from general access; (ix) transmit on, to or from this 19th Annual International IT Service Management Conference & Exhibition Website spam, chain letters, junk mail or any other type of unsolicited mass e-mail; or (x) otherwise use the 19th Annual International IT Service Management Conference & Exhibition Website in a manner which is contrary to law.


4. OTHER SERVICES
All of Pink’s other services and products are not included in this Agreement and shall be subject to payment of separate fees and the execution of a mutually agreeable agreement.


5. 19th Annual International IT Service Management Conference & Exhibition SYSTEM
(a) Operation of 19th Annual International IT Service Management Conference & Exhibition System: Pink shall use reasonable efforts to operate the 19th Annual International IT Service Management Conference & Exhibition System such that it is reasonably available for Your use. In addition, Pink shall use the same methods and procedures that Pink uses in respect of its own Internet web servers to protect the 19th Annual International IT Service Management Conference & Exhibition Server from unauthorized electronic intruders. Pink does not warrant and hereby disclaims that the 19th Annual International IT Service Management Conference & Exhibition System will be available on a "24/7" basis. You acknowledge that the 19th Annual International IT Service Management Conference & Exhibition System and the 19th Annual International IT Service Management Conference & Exhibition Website may not be available due to maintenance, repairs, upgrade or enhancement procedures undertaken by Pink from time to time or due to unanticipated failure of equipment, software or network devices. Further Pink has no responsibility regarding the availability or operation of any network, equipment or software; other than that contained in the 19th Annual International IT Service Management Conference & Exhibition System. (b) Changes by Pink: Pink may make changes to the 19th Annual International IT Service Management Conference & Exhibition System without notice to You as deemed necessary by Pink for the operation and update of the 19th Annual International IT Service Management Conference & Exhibition System.
(c) Disclaimer: You acknowledge and agree that Pink’s methods and procedures to secure the 19th Annual International IT Service Management Conference & Exhibition System may not prevent unauthorized electronic intruders to access the 19th Annual International IT Service Management Conference & Exhibition System through the Internet or through other form of electronic communication. If such unauthorized electronic intruders are able to bypass Pink’s firewall and safeguards, such unauthorized electronic intruder may change, delete or otherwise corrupt the contents and data contained in the 19th Annual International IT Service Management Conference & Exhibition Server. Except for the maintenance of appropriate firewall and safeguards that are designed to frustrate access from unauthorized electronic intruders, Pink shall not be liable to You, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
(d) Your Responsibilities: In addition to the other obligations contained in this Agreement:


You shall be responsible for procuring, installing, operating, supporting and maintaining its systems, including computer hardware and software and communication services (high speed Internet connections) necessary for You to access the 19th Annual International IT Service Management Conference & Exhibition System; and
You shall comply, at all times, with all applicable legal and regulatory requirements and with Pink’s conduct and security policies in respect of the use of the 19th Annual International IT Service Management Conference & Exhibition Website.


6. OWNERSHIP
You acknowledge and agree that Pink or its licensors or subcontractors owns, including all intellectual property rights, in and to: (i) Pink Content; (ii) 19th Annual International IT Service Management Conference & Exhibition Website; (iii) the 19th Annual International IT Service Management Conference & Exhibition Server and any software associated with the operation of the 19th Annual International IT Service Management Conference & Exhibition Server; and (iv) any modifications to any of the foregoing. You do not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the licenses granted herein.


7. FEES AND TAXES
You shall pay Pink the fees in such amounts as agreed to pursuant to the confirming correspondence between Yourself and Pink in respect of Your use of the 19th Annual International IT Service Management Conference & Exhibition Website. Such fees are exclusive of any and all applicable taxes. Activation will occur after payment has been received by Pink. Further, such fees do not permit any other individual or Person to use the 19th Annual International IT Service Management Conference & Exhibition Website or access the Pink Content. Fees for all and any Renewal Terms are payable and due prior to the anniversary of the activation date.
Fees for any Renewal Term are subject to change. Fees do not include taxes. You shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement, except for any taxes based on Pink’s net income.


8. CONFIDENTIALITY
(a) Obligation: Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement and who are under similar obligations of confidentiality as herein. Each Party must immediately report to the other any security breaches or unauthorized disclosure that comes to its attention.
(b) Subpoena: In the event that any Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental authority, such Party agrees to (i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request; (ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and (iii) if disclosure of such Confidential Information is required, exercise commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.


9. TERM
(a) Initial Term: The initial term of this Agreement shall commence on the date that Pink forwards to You an Authentication ID and the initial Password, and shall continue for a period of twelve (12) months (the "Initial Term") unless terminated earlier pursuant to the provisions of this Agreement.
(b) Renewal Term: Unless: (i) either Party notifies the other Party at least sixty (60) calendar days prior to the expiration of the Initial Term, or the then Renewal Term, as the case may be, of its desire not to renew this Agreement; (ii) this Agreement is earlier terminated in accordance with the provisions hereof or; (iii) You have not paid the then renewal Fee; this Agreement shall automatically renew for successive renewal periods of twelve (12) months each (the "Renewal Term").


10. TERMINATION
(a) Termination Rights: Subject to Sections 10(d), Pink may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if:


You infringe the intellectual property rights of Pink or its licensors or performs a prohibited activity as described in Section 3(d); or


You breach any other provision of this Agreement and such breach continues for a period of thirty (30) days after delivery of a written notice by Pink requiring the correction of such failure.


In addition and to the extent applicable, if the individual to whom Pink issued the Authentication ID and Password leaves the employ of the Company for whom such individual works for and the Company does not assign this Agreement to another employee of the Company pursuant to Section 16(g), Pink may terminate this Agreement.
(b) Waiver: The waiver by either Party of a breach or default of any provision of this Agreement by the other Party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by such Party shall constitute a waiver.
(c) Effect of Termination: Upon the termination or expiration of this Agreement for any reason Pink shall terminate and invalidate Your Authentication ID.
(d) Survival of Covenants: Notwithstanding the termination or expiration of this Agreement for any reason, the covenants set out in this Section 10(d) and in Sections 5(c), 6, 8, 11, 12, 13, 14, 16(c) and 16(h) of this Agreement shall survive any such termination or expiration.


11. DISCLAIMER
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO THE 19th Annual International IT Service Management Conference & Exhibition SYSTEM OR THE PINK CONTENT THAT ARE THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT ANY OF THE FOREGOING ITEMS WILL MEET EITHER YOUR OR COMPANY’S NEEDS OR WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME OR WILL BE ERROR FREE.


12. INDEMNITY
(a) Intellectual Property Indemnity: Pink shall defend at its own expense any claim, proceeding or suit (hereinafter referred to in this Section 12 as a "Claim") brought against You or the Company to the extent such Claim alleges that any of the Pink Content or the 19th Annual International IT Service Management Conference & Exhibition Website infringes any copyright of a third Person in a country that is a signatory to the Berne Convention, and will indemnify and pay all damages which by final judgment or settlement may be assessed against You on account of such infringement, provided that Pink is given:
13. LIMITATION OF LIABILITY
(a) Consequential Damages: IN NO EVENT SHALL PINK BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR LOST SAVINGS EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation of Direct Damages: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY YOU AGAINST PINK OR ANY OF ITS EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING A BREACH BY PINK OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT (WHETHER OR NOT A FUNDAMENTAL BREACH), YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM PINK PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT PAID BY YOU PURSUANT TO THIS AGREEMENT TO PINK IN THE IMMEDIATE SIX MONTHS PRECEDING THE DATE OF THE CLAIM.


14. DISPUTE RESOLUTION
All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, shall be arbitrated and finally resolved, pursuant of the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be conducted in the City of Toronto, Ontario. The language of the arbitration shall be conducted in English.


15. DEFINITIONS
In this Agreement the following terms shall have the following meanings:
"Authentication ID" means a security mechanism by which You identify Yourself to the 19th Annual International IT Service Management Conference & Exhibition System and together with Your Password gains access thereto.
"Confidential Information" means this Agreement; the Pink Content, the 19th Annual International IT Service Management Conference & Exhibition Website, including the software necessary to operate the 19th Annual International IT Service Management Conference & Exhibition Website and any software used or licensed by Pink in relation to the 19th Annual International IT Service Management Conference & Exhibition System; and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas set out in the Pink Content and other intellectual property rights of a Party, provided, however, that Confidential Information shall not include any data or information which:
"Customer Content" means the information and data provided by the You.
"Initial Term" shall have the meaning ascribed to it in Section 9(a).
"Objectionable Content" means content that infringes any applicable laws, regulations or third party rights, including, without limitation, content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any Person;s intellectual property rights;
"Party" means either Pink or You; and "Parties" means both of them.
"Password" means a series of letters, number and/or symbols that used in conjunction with the appropriate Authentication ID will permit access to the 19th Annual International IT Service Management Conference & Exhibition Website.
"Person" means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, governmental authority or other entity or organization.
"Pink Content" means such information, documents, templates multi media files, news items and other material that Pink may upload onto the 19th Annual International IT Service Management Conference & Exhibition Website.
"19th Annual International IT Service Management Conference & Exhibition Server" means that computer server located at Pink’s premises, or a third party provider of hosting and/or network services, that houses the 19th Annual International IT Service Management Conference & Exhibition Website.
"19th Annual International IT Service Management Conference & Exhibition System" means the 19th Annual International IT Service Management Conference & Exhibition Website, 19th Annual International IT Service Management Conference & Exhibition Server and such devices, and peripherals physically located with the 19th Annual International IT Service Management Conference & Exhibition Server including all computer hardware, software, network elements, and electrical and telecommunications infrastructure located behind the Point of Access.
"19th Annual International IT Service Management Conference & Exhibition Website" means the set of world-wide web pages hosted by Pink, or its subcontractor, through which You may access pursuant to the terms and conditions of this Agreement.
"Point of Access" means Pink’s, or its subcontractor’s, border router, which is used to establish connectivity from the 19th Annual International IT Service Management Conference & Exhibition System to Pink’s, or its subcontractor’s, Internet service provider, or the public Internet.
"Renewal Term" shall have the meaning ascribed to it in Section 9(b).
"Term" means collectively the Initial Term and any Renewal Term.
"Virus" means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users; the term "Virus" will also be deemed to include worms, cancelbots, trojan horses, harmful contaminants (whether self replicating or not) and nuisance causing or otherwise harmful applets; and

16. MISCELLANEOUS
(a) Headings: The division of this Agreement into articles, sections, schedules and other subdivisions and the inclusion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
(b) Entire Agreement: This Agreement, together with any agreements and other documents to be delivered pursuant hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties. Except as expressly provided in this Agreement, there are no representations, warranties, conditions other agreements or acknowledgments, whether direct or collateral, express or implied, that form part of or affect this Agreement.
(c) Notice: Every notice or other communication hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by a national courier service, or if sent by fax (receipt of which is confirmed) to the Person at the address set forth in the communication containing the Authentication ID, or such other address as may be designated in writing hereafter, in the same manner, by such Person. Any such notification shall be deemed delivered (a) upon receipt, if delivered personally, (b) on the next business day, if sent by national courier service for next business day delivery or if sent by fax.
(d) Modifications: This Agreement may be modified only upon written agreement by the Parties hereto.
(e) Relationship: Nothing herein shall be deemed to constitute either Party as an agent, representative or employee of the other Party, or both Parties as joint venturers or partners for any purpose. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other Party. Neither Party will have the authority or right to represent or obligate the other Party in any way except as expressly authorized by this Agreement.
(f) Enurement: This Agreement shall enure to the benefit of and be binding upon each of the Parties hereto and their permitted successor and assigns.
(g) Assignment: Neither this Agreement nor any of the rights or obligations hereunder may be assigned by You without the prior written consent of Pink, except and to the extent applicable, if the individual to whom Pink issued the Authentication ID and Password leaves the employ of the Company for whom such individual works for, the Company may name another employee, agent or contractor to take such individual’s place by giving written notice to Pink of the alternate individual.
(h) Governing Law: This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario, Canada (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). Subject to Section 14, the Parties hereto agree to submit to the jurisdiction of the courts of the Province of Ontario, Canada and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.
(i) Severability: In the event that any provision (or any portion of a provision) of this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.
(j) United Nations Convention: The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto.
(k) Press Releases: The Parties may not disclose the existence of this Agreement or the relationship between the Parties, unless the Parties mutually agree to issue a press release in such form and content that the Parties may mutually agree. In the event that a Party is obligated to issue a press release due to regulatory requirements, the other Party shall not prevent the issuance of such press release provided that such Party has an opportunity to review such press release and that the contents of such press release are factually accurate. Notwithstanding the preceding, Pink may include the name of the Company in its marketing materials and the fact that Company is a customer of Pink’s 19th Annual International IT Service Management Conference & Exhibition product.


By using the 19th Annual International IT Service Management Conference & Exhibition Website, You agree: (1) that You have read and understood the terms stated above; (2) you intend to form a legally binding contract among Pink and You; (3) a printout of the terms stated above will constitute a "writing" under any applicable law or regulation; and (4) You agree to abide by all the terms of the agreement stated above.