CREW

TERMS OF SERVICE

 

Last Modified: December 12, 2019

 

These Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between Speramus, Inc (“Crew”) and the customer identified in the applicable Order Form or other agreement (“Customer” or “you”) relating to the services provided by Crew (the “Services”). Crew and Customer are individually referred to as a “Party” and collectively as the “Parties”.

  1. Services.

    1. Scope of Services. Subject to the terms and conditions of this Agreement, Crew shall provide the Crew Platform subscription or other Crew development, customization, implementation and support services, as set forth in a Service Order (“Order”), including any Statement of Work (“SOW”) or other agreement incorporated into the Order, as further described and defined in Schedule A (the “Services”).

    2. Platform Terms of Use and Privacy Policy. By entering into this Agreement, Customer agrees to the Crew Platform Terms of Use located at https://www.home.crewapp.com/terms (“Terms of Use”), and the Crew Privacy Policy located at https://www.home.crewapp.com/privacy (“Privacy Policy”), which are incorporated herein by reference. Capitalized Terms not defined in this Agreement shall have the meaning set forth in the Terms of Use and Privacy Policy. To the extent the Terms of Use or Privacy Policy are inconsistent with the Terms of Service, the Terms of Service shall control. Customer shall make sure that all users of the Services, including all users of the Crew Platform, including the Crew app, made available by Customer, agree to the Terms of Use and Privacy Policy.

    3. Changes to Services. Crew reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Crew’s Services to its customers, the competitive strength of or market for Crew’s Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.

    4. Savings Clause. Crew’s failure to perform, or delay in performing, its responsibilities under this Agreement (including any Order or SOW) shall be excused if and to the extent that Crew demonstrates that such non-performance or delay is caused by: (i) the failure of Customer or Customer personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by Crew or Crew personnel at the request of Customer; (iii) any act performed by Customer or Customer personnel to the extent that such act was not otherwise agreed by the Parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of Crew systems.

    5. Third Party Services. Crew may make certain third-party products or services available to Customer, or may make its Services available to be used by Customer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which Crew makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement. Customer’s exclusive remedy with regard to Third-Party Services shall be against the Third-Party.

  2. Access and Use, Customer Restrictions.

    1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Crew hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable Order or SOW, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement and any additional terms in the applicable Order or SOW. Such use is limited to Customer’s internal use. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.

    2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Crew Platform, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Crew Platform, and third-party materials are and will remain with Crew and the respective rights holders in the third-party materials.

    3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services and Third-Party Materials (defined below), the applicable third-party services agreement, license agreement or Third-Party Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

      1. copy, modify or create derivative works or improvements of the Services;

      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

      3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;

      4. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;

      5. input, upload, transmit or otherwise provide to or through the Services or Crew Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

      6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Crew Platform or Crew’s provision of services to any third party, in whole or in part;

      7. remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;

      8. access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;

      9. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

      10. send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights;

      11. send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;

      12. attempt to gain unauthorized access to the Service or its related systems or networks;

      13. use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);

      14. use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

      15. engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, the Crew Platform, or which, as determined by Crew, may harm Crew or users of the Crew Platform or Services or expose them to liability;

      16. use any device, software or routine that interferes with the proper working of the Services or the Crew Platform;

      17. access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Crew’s detriment or commercial disadvantage; or

      18. otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.

    4. Service Management. Customer shall, throughout the Term, maintain within its organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement.

    5. Customer Obligations. In addition to any other provision of this Agreement, Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Materials (as defined in Section 5.2), including all Customer Data (as defined in Section 3.1); (ii) timely supply Crew with all necessary information and resources including, without limitation, all files, materials, data necessary for the Services, and access to information, personnel, systems and facilities, reasonably requested by Crew (and Crew shall be entitled to rely upon any instructions, guidelines or information provided to Crew by Customer); (iii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iv) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Service; (v) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (vi) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the Services.

    6. Suspension or Termination of Services. Crew may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Crew receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Crew to do so; or (b) Crew believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Crew; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Crew’s other rights or remedies, whether at law, in equity, or under this Agreement.

  3. Security.

    1. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.

    2. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.

  4. Fees; Payment Terms.

    1. Fees. Customer shall pay Crew the fees and expenses set forth in the applicable Order or SOW (“Fees”). Crew reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Term or then‑current renewal Term of Services, upon thirty (30) days prior notice to Customer.  Unless otherwise provided, all Fees are non-refundable.

    2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Crew’s income.

    3. Payment. Customer shall pay the Fees as set forth in the applicable Order or SOW. Unless otherwise indicated on the Order Form or SOW, all Fees will be due and payable prior to commencement of the Services, and all recurring monthly Fees prior to the beginning of each month of the Services term.  Payment terms shall be strictly enforced, and late payments shall be assessed monthly interest at the lesser of 1.5% and the maximum rate permitted by applicable law, plus all expenses of collection. If Customer believes that Crew has billed Customer incorrectly, Customer must contact Company no later than 60 days after receipt of the applicable invoice or billing, in order to receive an adjustment or credit.  Inquiries should be directed to Crew’s Customer Support department

    4. Expenses. Except as otherwise agreed to in an Order or SOW, Customer agrees to reimburse Crew for all preapproved, reasonable and necessary out-of-pocket expenses properly incurred or paid by Crew in connection with, or related to, the performance of the Services.

    5. Late Payment. Should Customer fail to make timely payments pursuant to the Agreement, Crew may suspend further performance of any or all Services. If Customer fails to pay any due and payable amounts within 10 calendar days after receipt of Crew’s written notice that such amounts are past due, Customer shall be deemed to be in material breach of this Agreement.

  5. Intellectual Property Rights.

    1. Services and Crew Materials/Customer-Specific Content. All right, title and interest in and to the Crew Materials, including all Intellectual Property Rights therein, are and will remain with Crew and, with respect to third-party materials included as part of Third-Party Services, the applicable Third-Party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the third-party materials. Customer has no right, license, or authorization with respect to any of the Crew Materials except as expressly set forth in this Agreement. All other rights in and to the Crew Materials are expressly reserved by Crew. “Crew Materials” means the Services, the Crew Platform, specifications, documentation, and Crew systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services, including all data collected by the Crew Platform and Services. Notwithstanding the above, Crew Materials shall not include any text, images, graphic designs, audio, video or other proprietary content provided by Customer specific to the identification of Customer (“Customer-Specific Content”). To the extent Crew obtains any rights to the Customer-Specific Content, Crew hereby assigns to Customer all right, title and interest in and to the Customer-Specific Content. To the extent Customer obtains any rights to the Crew Materials, Customer hereby assigns to Crew all right, title and interest in and to Crew Materials. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

    2. Customer Intellectual Property License. Customer grants to Crew a limited, non-exclusive, royalty-free right and license to use the Customer Materials as necessary to fulfill Crew’s obligations under this Agreement for the purpose of providing the Services. “Customer Materials” means all content and all other information in any form or media, including but not limited to Customer Data and all other documents, data, know-how, ideas, specifications, software code and other materials, provided to Crew or through the Crew Platform by or on behalf of Customer or an Authorized User, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any intellectual property rights, including all trademarks, trade names, service marks, trade dress, designs, artwork and logos of Customer associated with the Services and all Customer-Specific Content.  Customer further grants to Crew, on a perpetual basis, a right and license to use aggregated and de-identified Customer Data for the purposes of improving the Services.

    3. Feedback. If Customer or any Authorized User transmits or provides any communications or materials to Crew by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or the Crew Platform (“Feedback”), Crew is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Crew on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Crew is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Crew is not required to use any Feedback.

  6. Publicity. Customer agrees that Crew may use Customer’s business name, website URL and logo on its websites and in its marketing materials, identifying Customer as a current or former customer of Crew.

  7. Support.

    1. First Level Customer Service. Crew will provide first level customer service to all Authorized Users, including without limitation, Authorized User sign-ups,cancellations,and answering general customer service questions.

    2. Second Level Technical Support. Crew will provide second level technical support to Customer relating to technical aspects of the Crew Platform which will include in-app, email, and phone support between the hours of 9 am and 5 pm Pacific Time, Monday through Friday, except federal holidays or days on which the banks in San Francisco, California are closed for business. Crew will provide support at no cost to the Customer. 

  8. Confidentiality. 

    1. Confidential Information.  From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. For clarification purposes, all Crew pricing information and other terms of an Order shall be the Confidential Information of Crew. Customer acknowledges that Crew does not wish to receive any Proprietary Information from Customer that is not necessary for Crew to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Crew may reasonably presume that any unrelated information received from Customer is not Confidential Information.

    2. Non-Disclosure/Non-Use.  The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.   Notwithstanding the above, Crew may use for development, diagnostic and corrective purposes any data and information it collects relating to the Services. Each Party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of three (3) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Recipient. Notwithstanding the above, the survival period for Confidential Information that qualifies as trade secrets will last as long as the information qualifies as a trade secret under applicable federal, state or local law.

  9. Term and Termination.

    1. Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Order or SOW. 

    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

      1. either Party may terminate this Agreement, including any Order or SOW, effective on written notice to the other party, if the other party materially breaches this Agreement or the applicable Order or SOW, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days (ten (10) days for any failure to pay amounts due) after the non-breaching party provides the breaching party with written notice of such breach; and

      2. either Party may terminate this Agreement (including all Orders and SOWs), effective immediately upon written notice to the other Party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

    3. Surviving Terms. Any provision or other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

  10. Representations and Warranties.

    1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

    2. Additional Crew Warranties. Crew represents and warrants to Customer that Crew will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

    3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Crew that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Crew and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Customer and the provider of Third-Party Services.

    4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, SECTION 10.2, ALL SERVICES AND CREW MATERIALS ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND CREW DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR CREW MATERIALS. CREW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CREW MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CREW MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND MATERIALS.

  11. Indemnification.

    1. Crew Indemnification. Subject to the limitations set forth below, Crew shall indemnify, defend and hold harmless Customer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an affiliate of Customer) that Customer’s use of the Services (excluding Customer Materials and Third-Party materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

      1. access to or use of the Services or Crew Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Crew;

      2. modification of the Services or Crew Materials other than: (i) by or on behalf of Crew; or (ii) with Crew’s written approval in accordance with Crew’s written specification;

      3. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Crew; or

      4. act, omission or other matter described in Section 11.2.

    2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Crew and its officers, directors, employees, agents, stockholders, successors and assigns (each, a “Crew Indemnitee”) from and against any and all Losses incurred by such Crew Indemnitee in connection with any Action by a third party that arises out of or relates to any: (a) Customer Materials, including any processing of Customer Materials by or on behalf of Crew in accordance with this Agreement; (b) use of any Third-Party Services or Third-Party Materials, (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or (e) Customer’s violation or alleged violation of applicable law.

    3. Exclusive Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CREW’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND CREW MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

  12. Limitations of Liability.

    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL CREW OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CREW UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO CREW IN THE 6 MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  13. Force Majeure. Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.

  14. Miscellaneous.

    1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

    2. Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand U.S. mail or electronic mail to the address listed in the Order or SOW. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

    3. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    4. Non-Solicitation/Non-Hire.  During the term of this Agreement and any Order or SOW, and for a period of one (1) year following the expiration or termination of this Agreement (including any Order or SOW), Customer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Crew at any time during the term, or in any manner induce or attempt to induce any employee of Crew to terminate their employment with Crew, or (ii) materially interfere with the relationship of Crew with any individual who at any time was an employee of Crew.

    5. Entire Agreement. This Agreement, together with the Web Order, Order, SOW and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

    6. Assignment Neither Party may assign this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party; provided, however, that, notwithstanding the foregoing, Crew may assign this Agreement to (i) any affiliate or (ii) a third party by way of merger, acquisition, consolidation or sale or transfer of all or substantially all of its assets or membership units. Any purported assignment of rights in violation of this Section is void.

    7. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

    8. Amendment and Modification; Waiver. Except as otherwise provided, no waiver or modification of this Agreement including any Order or SOW will be binding upon either Party unless made in writing and signed by duly authorized representatives of such Party, and no failure or delay enforcing any right will be deemed a waiver of such right.

    9.  Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    10.  Governing Law. All matters relating to the Services, the Crew Platform and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).

    11. Arbitration

(a) Scope, Governing Rules. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall exclusively be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).

(b) Authority of Tribunal, Judicial Review. The award rendered by the arbitrator shall be final and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction.

(c) Selection of Tribunal. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.

(d) Seat of Arbitration. The seat or place of arbitration shall be San Francisco, California, USA, and the Parties waive any objection to arbitration taking place in Denver.

  1. Attorneys’ Fees. In the event that any arbitration or any other action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.

 

 

SCHEDULE A

SELECTED SERVICES DESCRIPTIONS

 

The Crew Platform provides team and corporate communication, scheduling, and task management delivered via mobile and web applications.

 

The primary features of the Crew Platform are the:

  • iOS and Android mobile application and web application, allowing front-line teams to:

    • Check their schedule.

    • Request shift coverage.

    • Access their company information.

    • Communicate via one-to-one, one-to-many, and team chats.

  • Command Center – a web-based administrative tool enabling:

    • Organizational control and visibility over all subscribed locations.

    • Permissions to define role-based access to view and perform functionalities. E.g., Ability to assign user roles to view reports and incidents.

    • Scheduling compliance.

    • Top-down communication.

    • Front-line team analytics and data.

  • Integrations, such as:

    • Identity management (hires, terminations).

    • Schedule integration.

    • Other back of house system integrations.

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80% lower turnover at Affinity Living Group

Crew is here for you.

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