PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH THE ORDER FORM (AS DEFINED BELOW) AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THIS “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE SERVICES (“YOU” OR “CUSTOMER”), AND CRISP, INC. AND ITS SUBSIDIARIES (“CRISP”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
BY EXECUTING THE ORDER FORM, CHECKING A BOX AGREEING TO THE TERMS, OR OTHERWISE SUBSCRIBING TO USE THE SERVICES ON BEHALF OF CUSTOMER, THE PERSON EXECUTING THE ORDER FORM, CHECKING SUCH BOX OR OTHERWISE SUBSCRIBING IS ACCEPTING THE TERMS ON BEHALF OF CUSTOMER AND AGREEING THAT CUSTOMER IS BOUND BY THIS AGREEMENT. THE PERSON EXECUTING THE ORDER FORM, CHECKING A BOX AGREEING TO THE TERMS OR OTHERWISE SUBSCRIBING TO USE THE SERVICES ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER. THE TERMS OF THE ORDER FORM ARE HEREBY INCORPORATED HEREIN BY THIS REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
- DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Crisp Solution.
- “Authorized User” means each of Customer’s employees, agents, partners and independent contractors who are authorized to access the Crisp Solution pursuant to Customer’s rights under this Agreement.
- “Crisp Solution” means the Crisp software-as-a-service application identified in the Order Form that allows Authorized Users to access certain features and functions through a web interface.
- “Connector Credentials” means login or account credentials used by Customer to access certain third party accounts for which it intends to use the Crisp Solution (e.g. Customer’s accounts with retail partners).
- “Connector Data” means content or information obtained, at the direction of the Customer, through the connection of the Crisp Solution to a third-party data source.
- “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including Connector Credentials and Connector Data but not including Usage Data.
- “Documentation” means the technical materials provided by Crisp to Customer in hard copy or electronic form describing the use and operation of the Crisp Solution.
- “Error” means a reproducible failure of the Crisp Solution to substantially conform to the Documentation.
- “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
- “Order Form” means the written order form or other ordering documentation, including an online subscription form, entered into by the parties hereunder and referencing this Agreement, identifying the applicable Services to be made available by Crisp, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.
- “Professional Services” means professional services provided by Crisp to Customer as described in the Order Form (as may be further elaborated in any statement of work).
- “Service Level Agreement” means the Service Level Agreement attached to this Agreement as Exhibit A.
- “Services” means any services provided by Crisp to Customer under this Agreement as set forth in the Order Form, including, but not limited to, provision of the Crisp Solution.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Crisp Solution.
- PROVISION OF SERVICES.
- Subject to the terms and conditions of this Agreement, including Customer’s payment of the fees set forth in the Order Form (“Fees”), Crisp will provide Customer with access to the Crisp Solution. On or as soon as reasonably practicable after the effective date set forth in the Order Form, Crisp will provide Customer with Access Protocols for Customer and its Authorized Users to access the Crisp Solution. Customer will prevent unauthorized access to, or use of, the Crisp Solution, and notify Crisp promptly of any such unauthorized use known to Customer.
- Support Services. Subject to the terms and conditions of this Agreement, Crisp will exercise commercially reasonable efforts to provide support for the use of the Crisp Solution in accordance with its standard policies and procedures.
- Service Level Agreement. Subject to the terms and conditions of this Agreement, Crisp will exercise commercially reasonable efforts to comply with the Service Level Agreement.
- Subject to the terms and conditions of this Agreement, including Customer’s payment of the fees set forth in the Order Form (“Fees”), Crisp will provide Customer with access to the Crisp Solution. On or as soon as reasonably practicable after the effective date set forth in the Order Form, Crisp will provide Customer with Access Protocols for Customer and its Authorized Users to access the Crisp Solution. Customer will prevent unauthorized access to, or use of, the Crisp Solution, and notify Crisp promptly of any such unauthorized use known to Customer.
- INTELLECTUAL PROPERTY; DATA.
- License Grant. Subject to the terms and conditions of this Agreement, Crisp grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form to access and use the Crisp Solution in accordance with the Documentation.
- Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Crisp Solution, Licensed Material or Documentation (collectively, the “Crisp Materials”), except as expressly allowed herein; (b) modify, adapt, alter or translate the Crisp Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Crisp Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Crisp Solution, except as permitted by law; (e) interfere in any manner with the operation of the Crisp Solution or the hardware and network used to operate the Crisp Solution; (f) modify, copy or make derivative works based on any part of the Crisp Solution or Documentation; (g) access or use the Crisp Solution to build a similar or competitive product or service; (h) attempt to access the Crisp Solution through any unapproved interface; or (i) otherwise use the Crisp Materials in any manner that exceeds the scope of use permitted under Section 3(a) (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Crisp Solution will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Crisp or its licensors on the Licensed Material or any copies thereof.
- Ownership. The Crisp Materials, and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of Crisp and its suppliers. All rights in and to the Crisp Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Crisp and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Crisp Solution, Documentation, or any part thereof.
- License to Licensed Material. Subject to the terms and conditions of this Agreement, Crisp grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12(f) (No Assignment)), non-sublicensable license to use the Licensed Material for Customer’s analytics and data processing purposes.
- Open Source Software. Certain items of software may be provided to Customer with the Crisp Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Crisp makes such Open Source Software, and Crisp’s modifications to that Open Source Software, available by written request at the notice address specified below.
- Feedback. Customer hereby grants to Crisp a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Crisp will not identify Customer as the source of any such feedback.
- Usage Data. Customer also grants Crisp a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, fully paid license to use, reproduce, display, distribute, transmit, perform, and create derivative works of the Customer Content in an aggregated or de-identified form (such data, once in aggregated or de-identified form, the “Usage Data”) during and after the term to: (A) improve the Services and Crisp’s related products, services, and technology; (B) provide analytics and benchmarking services; and (C) generate and disclose statistics regarding use of the Services, provided, however, that no statistics will be disclosed to third parties in a manner that would identify Customer without Customer’s consent.
- License Grant. Subject to the terms and conditions of this Agreement, Crisp grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form to access and use the Crisp Solution in accordance with the Documentation.
- DATA.
- Connector Credentials. Customer agrees to provide to Crisp any Connector Credentials solely via the Crisp Solution.
- Data Security. Crisp shall (a) maintain and enforce an information security program including safety, physical and technical security policies and procedures with respect to its processing of Customer Content that meets or exceeds industry standard practices, (b) store Connector Credentials provided by Customer hereunder in secured, encrypted form, (c) delete any Connector Credentials within one business day of a written request from Customer for such deletion, (d) periodically test its systems for potential areas where security could be breached and monitor for suspected breaches, (e) promptly report to Customer any breach of security or unauthorized access to Customer Content that Crisp detects or becomes aware of, (f) use diligent efforts to mitigate any breach of security or unauthorized access to Customer Content in a timely manner, and (g) use the Connector Data in compliance with any information security and confidentiality obligations required by third-party retail or distribution partners whose third party accounts are accessed by the Customer via the Connector Credentials up to the extent the terms of such information security or confidentiality obligations are provided to Crisp, provided that if Crisp is unable to comply with any such information security or confidentiality obligations, Crisp may terminate this Agreement immediately upon notice to Customer.
- Connector Credentials. Customer agrees to provide to Crisp any Connector Credentials solely via the Crisp Solution.
- FEES AND EXPENSES; PAYMENTS.
- Fees. The Fees and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged to your Payment Method (as defined below) on the specific billing date indicated on your “Account” page. The length of your billing cycle will depend on the type of subscription that you choose when you sign-up for the service, monthly or annual. In some cases your payment date may change, for example if your Payment Method has not successfully settled or if your paid subscription began on a day not contained in a given month. Visit Crisp’s website and click on the “Account” page to see your next payment date. Crisp may authorize your Payment Method in anticipation of subscription or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period. Fees shall be due and payable upon receipt of an invoice provided by Crisp.
- Payment Methods. To use the Services you must provide one or more current, valid, accepted methods of payment, as may be updated from time to time, which may include, if applicable, an account for ACH payment (a “Payment Method”). You authorize Crisp to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to Crisp for payment of Fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, Crisp may suspend your access to the service until Crisp has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
- Updating your Payment Methods. To update your Payment Method, please email AR@gocrisp.com. Crisp may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize Crisp to continue to charge the applicable Payment Method(s).
- Changes to the Price and Subscription Plans. Except as otherwise expressly provided for in this Agreement, any price changes, changes to your subscription plan or changes to required Payment Methods shall be communicated in writing by notice to Customer no later than thirty (30) days’ prior to the implementation of such changes. If Customer does not agree to such changes in price or subscription plan, Customer has the right to terminate this Agreement without penalty within thirty (30) days.
- No Refunds; Credits. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, other than termination by Crisp due to Customer’s breach pursuant to Section 11(b), you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, Crisp may provide a refund, discount, or other consideration to some or all of Crisp’s subscribers (“Credits”). The amount and form of such Credits, and the decision to provide them, are at Crisp’s sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate Crisp to provide Credits in the future, under any circumstance.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Crisp’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Crisp Solution to Customer. Customer will make all payments of Fees to Crisp free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Crisp will be Customer’s sole responsibility, and Customer will provide Crisp with official receipts issued by the appropriate taxing authority, or such other evidence as Crisp may reasonably request, to establish that such taxes have been paid.
- Interest. Any amounts thirty (30) days’ past due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
- Promotions. Certain Services may start with promotional pricing or free trials (“Promotion”). Promotion eligibility is determined by Crisp at its sole discretion and Crisp may limit eligibility or duration to prevent Promotion abuse. To the extent applicable, the duration of the Promotion period of your subscription will be specified during sign-up and is intended to allow new and certain former subscribers to try the service. Crisp reserves the right to revoke the Promotion and put your account on hold in the event that Crisp determines that you are not eligible. For combinations with other offers, restrictions may apply. Crisp will charge the Fees for your next billing cycle to your Payment Method at the end of the Promotion period and your subscription will automatically renew unless you cancel your subscription prior to the end of the Promotion period. To view the applicable Fees and end date of your Promotion period, visit Crisp’s website and click the “Account” page.
- Fees. The Fees and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged to your Payment Method (as defined below) on the specific billing date indicated on your “Account” page. The length of your billing cycle will depend on the type of subscription that you choose when you sign-up for the service, monthly or annual. In some cases your payment date may change, for example if your Payment Method has not successfully settled or if your paid subscription began on a day not contained in a given month. Visit Crisp’s website and click on the “Account” page to see your next payment date. Crisp may authorize your Payment Method in anticipation of subscription or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period. Fees shall be due and payable upon receipt of an invoice provided by Crisp.
- CUSTOMER CONTENT AND RESPONSIBILITIES.
- License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Crisp to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Crisp to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants Crisp a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services and (b) to use the Customer trademarks, service marks, and logos as required to provide the Services. By using the Services, you expressly authorize Crisp to access your Connector Data maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. Crisp will submit Connector Credentials to such third parties. You hereby authorize and permit Crisp to use and store information submitted by you to accomplish the foregoing. For purposes of this Agreement, and solely to provide the Connector Data to you as part of the Services, you grant Crisp a limited power of attorney, and appoint Crisp as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN CRISP IS ACCESSING AND RETRIEVING CONNECTOR DATA FROM THIRD PARTY SITES, CRISP IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. The Customer Content, and all worldwide intellectual property rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Crisp in this Agreement are reserved by Customer.
- Customer Warranty. Customer represents and warrants (1) that it has all necessary permissions and consents necessary to provide Crisp the Customer Content and Connector Credentials and import the Connector Data into the Crisp Solution, in each case, for the uses set forth herein and (2) that Customer Content and its use hereunder will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Crisp’s system or data; and (e) otherwise violate the rights of a third party. Crisp is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Crisp Solution contrary to or in violation of the representations and warranties of Customer in this Section 6(B) (Customer Warranty) constitutes unauthorized and improper use of the Crisp Solution.
- Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Crisp Solution. Customer will have the ability to export Customer Content out of the Crisp Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
- PROFESSIONAL SERVICES. Where the parties have agreed to Crisp’s provision of Professional Services, the details of such Professional Services will be set out in the Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in this Agreement.
- License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Crisp to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Crisp to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants Crisp a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services and (b) to use the Customer trademarks, service marks, and logos as required to provide the Services. By using the Services, you expressly authorize Crisp to access your Connector Data maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. Crisp will submit Connector Credentials to such third parties. You hereby authorize and permit Crisp to use and store information submitted by you to accomplish the foregoing. For purposes of this Agreement, and solely to provide the Connector Data to you as part of the Services, you grant Crisp a limited power of attorney, and appoint Crisp as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN CRISP IS ACCESSING AND RETRIEVING CONNECTOR DATA FROM THIRD PARTY SITES, CRISP IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. The Customer Content, and all worldwide intellectual property rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Crisp in this Agreement are reserved by Customer.
- WARRANTIES AND DISCLAIMERS.
- Limited Warranty. Crisp represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Crisp further warrants to Customer that the Crisp Solution will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Crisp Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Crisp Solution in combination with other products, equipment, software or data not supplied by Crisp; or (c) any modification of the Crisp Solution by any person other than Crisp or its authorized agents. Provided that Customer notifies Crisp in writing of any breach of the foregoing warranty during the Term, Crisp will, as Customer’s sole and exclusive remedy, provide the support described in Section 2(b) (Support Services) or, at Crisp’s option, refund the fees paid by Customer for the Services which gave rise to the breach. Crisp further represents and warrants that it will use commercially reasonable efforts to ensure that the Crisp Solution does not and will not contain or introduce (including through the applicable software implementation process) any virus, bug, worm, Trojan horse, back-door, or any disabling, shut-down, time-lock or time-out device, any security vulnerability, any unauthorized software, or any other disruptive, damaging or corrupting code or feature which could adversely impact the performance or functionality of the platform, or which could permit damage or unauthorized access to, adversely impact, interfere with or otherwise harm any software, firmware, hardware, computer system, network, data or electronically stored information of Customer.
- Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7(a) (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CRISP MATERIALS ARE PROVIDED “AS IS,” AND CRISP MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CRISP DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE CRISP SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
- Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any products or features available to Customer on a trial, beta, early access, or similar basis (“Beta Services”), (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services are provided without any warranties of any kind and are provided on an “as-is” basis, (c) Sections 7(a) (Limited Warranty) and 10(a) (By Crisp) and (d) Crisp will have no liability arising out of or in connection with Beta Services.
- Limited Warranty. Crisp represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Crisp further warrants to Customer that the Crisp Solution will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Crisp Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Crisp Solution in combination with other products, equipment, software or data not supplied by Crisp; or (c) any modification of the Crisp Solution by any person other than Crisp or its authorized agents. Provided that Customer notifies Crisp in writing of any breach of the foregoing warranty during the Term, Crisp will, as Customer’s sole and exclusive remedy, provide the support described in Section 2(b) (Support Services) or, at Crisp’s option, refund the fees paid by Customer for the Services which gave rise to the breach. Crisp further represents and warrants that it will use commercially reasonable efforts to ensure that the Crisp Solution does not and will not contain or introduce (including through the applicable software implementation process) any virus, bug, worm, Trojan horse, back-door, or any disabling, shut-down, time-lock or time-out device, any security vulnerability, any unauthorized software, or any other disruptive, damaging or corrupting code or feature which could adversely impact the performance or functionality of the platform, or which could permit damage or unauthorized access to, adversely impact, interfere with or otherwise harm any software, firmware, hardware, computer system, network, data or electronically stored information of Customer.
- LIMITATION OF LIABILITY.
- Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO CRISP DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CRISP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (1) ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 OR (2) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- CONFIDENTIALITY.
- Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Crisp. Customer Content will be considered Confidential Information of Customer.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Crisp). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in Section 9(b) (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing as to the form, content and timing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Crisp. Customer Content will be considered Confidential Information of Customer.
- INDEMNIFICATION.
- By Crisp. Crisp will defend at its expense any suit brought against Customer, and will pay any settlement Crisp makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging (1) Crisp’s breach of Section 4(b) of this Agreement, or (2) the Crisp Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Crisp Solution becomes, or in Crisp’s opinion is likely to become, the subject of a claim of infringement, Crisp may, at Crisp’s option: (a) procure for Customer the right to continue using the Crisp Solution; (b) replace the Crisp Solution with non-infringing software or services which do not materially impair the functionality of the Crisp Solution; (c) modify the Crisp Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Crisp Solution and Documentation. Notwithstanding the foregoing, Crisp will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Crisp Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Crisp Solution in combination with other products, equipment, software or data not supplied by Crisp; or (iii) any modification of the Crisp Solution by any person other than Crisp or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Crisp, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- By Customer. Customer will defend at its expense any suit brought against Crisp, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer Content, or (c) Customer’s breach or alleged breach of Sections 6(b) (Customer Warranty).
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- By Crisp. Crisp will defend at its expense any suit brought against Customer, and will pay any settlement Crisp makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging (1) Crisp’s breach of Section 4(b) of this Agreement, or (2) the Crisp Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Crisp Solution becomes, or in Crisp’s opinion is likely to become, the subject of a claim of infringement, Crisp may, at Crisp’s option: (a) procure for Customer the right to continue using the Crisp Solution; (b) replace the Crisp Solution with non-infringing software or services which do not materially impair the functionality of the Crisp Solution; (c) modify the Crisp Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Crisp Solution and Documentation. Notwithstanding the foregoing, Crisp will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Crisp Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Crisp Solution in combination with other products, equipment, software or data not supplied by Crisp; or (iii) any modification of the Crisp Solution by any person other than Crisp or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Crisp, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- TERM AND TERMINATION.
- Term. This Agreement will begin on the effective date of the Order Form and continue in full force and effect for the duration stated therein, unless earlier terminated in accordance with the Agreement (the “Initial Term”). Unless otherwise stated in the Order Form, the term of this Agreement will automatically renew for additional consecutive terms equal in length to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless, prior to the expiration of the then-current term, either (1) Crisp gives written notice of non-renewal or (2) you cancel your subscription at least thirty (30) days prior to the expiration of the then-current term. You must cancel your subscription at least thirty (30) days before it renews in order to avoid billing of the Fees for the next billing cycle to your Payment. You can cancel your Crisp subscription at any time by emailing AR@gocrisp.com, and you will continue to have access to the Crisp service through the end of your billing period. If you cancel your subscription, your account will automatically close at the end of your current billing period.
- Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 9 (Confidentiality); and (c) any amounts owed to Crisp under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3(b) (Restrictions), 3(c) (Ownership), 3(e) (Open Source Software), 3(g) (Usage Data), 5 (Fees and Expenses; Payments), 7(b) (Disclaimer), 8 (Limitation of Liability), 9 (Confidentiality), 10(Indemnification), 11(b) (Termination for Breach), 11(c) (Effect of Termination), and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
- Term. This Agreement will begin on the effective date of the Order Form and continue in full force and effect for the duration stated therein, unless earlier terminated in accordance with the Agreement (the “Initial Term”). Unless otherwise stated in the Order Form, the term of this Agreement will automatically renew for additional consecutive terms equal in length to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless, prior to the expiration of the then-current term, either (1) Crisp gives written notice of non-renewal or (2) you cancel your subscription at least thirty (30) days prior to the expiration of the then-current term. You must cancel your subscription at least thirty (30) days before it renews in order to avoid billing of the Fees for the next billing cycle to your Payment. You can cancel your Crisp subscription at any time by emailing AR@gocrisp.com, and you will continue to have access to the Crisp service through the end of your billing period. If you cancel your subscription, your account will automatically close at the end of your current billing period.
- MISCELLANEOUS.
- Publicity. Customer grants Crisp the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on Crisp’s website and, with Customer’s prior written consent, in other marketing or advertising materials.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts of New York County, New York for any lawsuit filed there against Customer by Crisp arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Crisp, or any products utilizing such data, in violation of the United States export laws or regulations.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Crisp Materials.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Customer’s relationship to Crisp is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Crisp.
- Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Crisp may provide notice using the information provided in the Order Form and Customer may provide notice using the contact information provided on.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Crisp.
- Publicity. Customer grants Crisp the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on Crisp’s website and, with Customer’s prior written consent, in other marketing or advertising materials.
EXHIBIT A
SERVICE LEVEL AGREEMENT
- DEFINITIONS. For purposes of this Exhibit A, Service Level Agreement (“SLA”) The following capitalized terms will have the definitions set forth below:
- “Force Majeure” means any act, event, or occurrence beyond Crisp’s reasonable control, including, without limitation, issues arising from bugs or other problems in the software, firmware or hardware of Crisp’s suppliers, outages or issues with upstream providers or network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
- “Normal Business Hours” means [6 a.m. to 5 p.m. Pacific Time Monday through Friday] excluding holidays.
- “Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Crisp Solution due to planned system maintenance performed by Crisp. Crisp will exercise reasonable efforts to perform scheduled system maintenance between the hours of [6 p.m. and 8 p.m. Pacific Time]. Crisp will provide Customer with reasonable prior notice of such Scheduled Downtime.
- “System Availability” means, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the Total Monthly Time, and thereafter dividing the difference so obtained by the Total Monthly Time. Represented algebraically, System Availability for any particular calendar month is determined as follows:
System Availability = (Total Monthly Time − Unscheduled Downtime) / Total Monthly Time - “Total Monthly Time” means the total minutes in the relevant calendar month less Scheduled Downtime. For any partial calendar month during which Customer subscribes to the Crisp Solution, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.
- “Unscheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Crisp Solution, other than Scheduled Downtime, as defined above. Unscheduled Downtime shall not include any period during which the Crisp Solution is unavailable as a result of (a) non-compliance by Customer with any provision of this SLA; (b) incompatibility of Customer’s equipment or software with the Crisp Solution; (c) actions or inactions of Customer or third parties; (d) Customer’s use of the Crisp Solution after Crisp has advised Customer to modify its use of the Crisp Solution, if Customer did not modify its use as advised; (e) acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Crisp Solution by means of Customer’s passwords or equipment; (f) performance of Customer’s systems or the Internet; (g) any systemic Internet failures; (h) network unavailability or Customer’s bandwidth limitations; or (i) Scheduled Downtime.
- “Force Majeure” means any act, event, or occurrence beyond Crisp’s reasonable control, including, without limitation, issues arising from bugs or other problems in the software, firmware or hardware of Crisp’s suppliers, outages or issues with upstream providers or network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
- SYSTEM PERFORMANCE.
- System Availability: Crisp will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-nine percent (99%) during each calendar month (the “Service Standard”).
- Access to Support; Response Times: Customer may report Unscheduled Downtime at any time (“24x7x365”) by sending Crisp an e-mail to support@gocrisp.com.
- System Availability: Crisp will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-nine percent (99%) during each calendar month (the “Service Standard”).
- CUSTOMER REQUIREMENTS. Customer is responsible for maintenance and management of its computer network(s), servers, and software, and any equipment or services related to maintenance and management of the foregoing. Customer is responsible for correctly configuring its systems in accordance with any instructions provided by Crisp, as may be necessary for provision of access to the features and functions of the Crisp Solution.
- RESPONSE TIMES. Crisp shall use commercially reasonable efforts to respond to and resolve the Priority Levels set out below with the respective Recovery Time Objective (RTO) as described by the Service Restoration Column. The Recovery Point Objective (RPO) for all Priority Levels is no greater than twenty-four hours. The classification of incidents across the Priority Levels described below shall be determined by Crisp in accordance with their respective definitions at its sole discretion.
Service Level Details
| SLA Incident Priority | Definition | Level of Effort | Initial Response | Service Restoration | Preventive Action | Status Updates |
|---|---|---|---|---|---|---|
| 1 | Any SLA Incident in a production environment that (i) renders the Crisp Solution or any material functionality therein inoperative; (ii) causes the mean Crisp Solution response time to exceed 10 seconds; or (iii) results in unavailability of the Crisp API (where applicable). | Continuous best efforts, 24 hours per day, 7 days per week | One hour | Four hours | 30 calendar days | Every hour until a Service Restoration is provided and every calendar day thereafter until a Preventive Action is provided. |
| 2 | Any SLA Incident (i) that materially adversely affects the functionality of the Crisp Solution, causes a material portion of the Crisp Solution’s functionality to be unavailable, causes the mean Crisp Solution response time for user access to and from the Crisp Solution to exceed 5 seconds; or (ii) in a non-production environment that renders the Crisp Solution or any material functionality therein inoperative (incl. an SLA Incident that materially impairs Customer’s use of the Crisp Solution or causes Customer to experience data loss or corruption or causes an essential part of the Crisp Solution to be unusable). | Continuous best efforts, 24 hours per day, 7 days per week | One hour | Eight hours | 30 calendar days | Every four hours until a Service Restoration is provided and every calendar day thereafter until a Preventive Action is provided. |
| 3 | Any SLA Incident that (i) has a minor impact; or (ii) in a non-production environment that materially adversely affects the functionality of the Crisp Solution or causes a material portion of the Crisp Solution functionality to be unavailable. | Commercially reasonable efforts, during normal business hours | One Business Day | 5 Business days | Next Update or the Update immediately thereafter, as reasonable | N/A |
| 4 | Any SLA Incident: (i) in a production environment that does not adversely affect Customer’s or any of its affiliate’s business operations; or (ii) in a non-production environment that has a minor impact. | Commercially reasonable efforts, during normal business hours | One Business Day | Ten Business Days | Next Update or the Update immediately thereafter, as reasonable | N/A |