terms of service
Last updated on January 31, 2023
These Terms of Service of Crewscope Inc. (“Crewscope”) apply to the access to and use of Crewscope’s web-based proprietary information technology platform (the “Platform”) via the website and other services, as specified in a Crewscope-approved order form or process (the “Order Form”).
In these Terms of Service:
(i) “Services” means access to and use of the Platform and implementation, training and onboarding services and any other ancillary services as specified in the Order Form; and
(ii) “Customer” means the customer or client of Crewscope that has signed the Order Form.
BY SIGNING THE ORDER FORM, THE CUSTOMER ACCEPTS THESE TERMS OF SERVICE, UNLESS THE CUSTOMER AND CREWSCOPE HAVE SIGNED A SEPARATE MASTER SOFTWARE-AS-A-SERVICE AGREEMENT.
If you are a user designated by Customer and have access to the Platform, you are an “Authorized User” as defined below. The Terms of Use (https://crewscope.com/terms-of-use/ apply to your access to the Platform and use of the Services. Please refer to and review those separate Terms of Use. By using the Services, you indicate that you agree to the terms and conditions as set out in those Terms of Use.
1. Definitions
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Crewscope in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Agreement” means, collectively, the Order Form and these Terms of Service.
(c) “Authorized User” means Customer’s employees, consultants, contractors, sub-contractors and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer hereunder; and (ii) for whom access to the Services have been purchased pursuant to an Order Form.
(d) “Confidential Information” has the meaning set forth in 6(a).
(e) “Crewscope IP” means the Intellectual Property Rights in and to the Platform, the Services, and the Documentation, including any improvements, customization, or modifications to any of the foregoing that are developed or implemented at the request of the Customer or in connection with Crewscope’s performance under this Agreement (whether or not such activity is included in the Fee or otherwise paid by or on behalf of the Customer). For the avoidance of doubt, Crewscope IP includes Aggregated Statistics and any information, data, or other content derived from Crewscope’s monitoring of the Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(g) “Documentation” means Crewscope’s implementation guidelines, training materials, and other documents relating to the Services provided by Crewscope to the Customer.
(h) “Fees” has the meaning set forth in Section 5(a).
(i) “Intellectual Property Rights” means, collectively: (i) any and all proprietary rights provided under patent, copyright, trademark, design patent or industrial design, or trade secret Laws, which may provide a right in the hardware, software, systems, content, documentation, ideas, formulae, algorithms, concepts, inventions, tools, methods processes or know-how generally, or the expression or use thereof; and (ii) any and all applications, registrations, licenses, sub-licenses, agreements or any other evidence of a right in any of the foregoing.
(j) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirements of any federal, state, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(k) “Parties” means Crewscope and Customer, collectively, and individually as “Party”.
(l) “Personal Information” means personal data or personal information, as such terms are defined under applicable privacy Laws.
(m) “Term” has the meaning set forth in Section 13(a).
(n) “Third-Party Platforms” has the meaning set forth in Section 9(a).
2. Services
(a) “Access and Use” Subject to Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Crewscope hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and any other limitations as may be specified on an Order Form. Crewscope shall provide Customer with the necessary passwords and network links or connections to allow Customer and its Authorized Users to access the Platform. Customer shall ensure that the total number of Authorized Users does not exceed the maximum number set forth in the Order Form and that Authorized Users shall access the Platform and use the Services solely in connection with their relationship with the Customer and the Customer’s projects and not for any other purpose or project.
(b) “Documentation License” Subject to the terms and conditions of this Agreement, Crewscope hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) “Use Restrictions” Customer shall not access or use the Platform or the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to (i) copy, modify, or create derivative works of the Platform, the Services, or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform, the Services or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform or the Services, in whole or in part; (iv) remove any proprietary notices from the Platform, the Services or the Documentation; or (v) use the Platform, the Services or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person, or that violates any applicable law.
(d) “Reservation of Rights” Crewscope reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted hereunder, nothing in this Agreement grants to Customer or any third party any intellectual property rights or other rights, title, or interest in or to the Crewscope IP.
(e) “Suspension” Notwithstanding anything to the contrary in this Agreement, Crewscope may temporarily suspend Customer’s and any Authorized User’s access to or use of any portion or all of the Platform or the Services if: (i) Crewscope reasonably determines that (A) there is a threat or attack on any of the Crewscope IP, (B) Customer’s or any Authorized User’s use of the Crewscope IP disrupts or poses a security risk to the Crewscope IP or to any other customer or vendor of Crewscope, (C) Customer or any Authorized User is using the Crewscope IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Crewscope’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Crewscope has suspended or terminated Crewscope’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a) (any such suspension, a “Service Suspension”). Crewscope shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding the resumption of access to the Services following any Service Suspension. Crewscope shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Crewscope will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) “Aggregated Statistics” Notwithstanding anything to the contrary in this Agreement, Crewscope may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Crewscope and Customer, all rights, titles, and interests in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Crewscope. The customer acknowledges that Crewscope may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Crewscope may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(g) “Modifications” The customer acknowledges and agrees that Crewscope has the right, at any time and for any reason, to redesign or modify the Platform, the Crewscope IP, and any other elements or parts thereof. Crewscope shall not be liable to Customer or its Authorized Users for any such modification or redesign; provided that there is no material adverse change to the scope or functionality of the Services as a result thereof.
3. Customer Responsibilities
(a) “Compliance with Laws” Customer represents, warrants, and covenants to Crewscope that Customer’s and its Authorized Users’ access to and use of the Platform and the Services shall comply with the limitations of use in Section 2(c) and all applicable Laws. Without limiting the generality of the foregoing, Customer shall ensure that its and the Authorized Users’ use of the Platform and the Services do not cause any violation or non-compliance of Customer’s policies and procedures, or applicable Laws relating to, occupational or workplace health and safety.
(b) “Authorized Users” Customer is responsible and liable for all uses of the Platform and the Services and the Documentation by Authorized Users resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Furthermore, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s access to the Platform and use of the Services and shall cause Authorized Users to comply with such provisions and all other applicable terms of service or use.
(c) “Training” Customer acknowledges and is aware of the risks that Authorized Users may have an incentive to use the Services in a manner that does not comply with Customer’s policies and procedures, or applicable Laws relating to, occupational or workplace health and safety. The customer shall ensure that all Authorized Users receive training and training on, and review the Documentation regarding the appropriate use of, the Services.
(d) “Security” Customer shall use its best efforts to prevent unauthorized access to or use of the Services through its or its Authorized Users accounts, and promptly notify Crewscope of any unauthorized access or use. Customer shall keep confidential its and the Authorized Users’ user IDs and passwords for the Services and shall be responsible for any actions taken through their respective accounts using those credentials for as long as the integrity of the Crewscope platform stays uncompromised.
(e) “Rights in Customer Data” Customer shall give all notices and obtain all rights consents, assignments, licenses, permissions, and authorizations (including the waiver of any moral rights) necessary for Customer to transfer to Crewscope and for Crewscope to collect, use and share the Customer Data (and any Personal Information contained therein) as contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual property, publicity, privacy or other rights, or (iii) any terms of service or other agreements governing the Customer Data or Customer’s activities relating to its and the Authorized User’s use of the Services.
4. Service Levels and Support
(a) “Service Levels” Subject to the terms and conditions of this Agreement, Crewscope shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
(b) “Support” The access rights granted hereunder entitle Customer to the support services described in Exhibit A for the support period specified in the Order Form.
5. Fees and Payment
(a) “Fees” The customer shall pay Crewscope the fees (“Fees”) as set forth in the Order Form, without offset or deduction. Customer shall make all payments hereunder, in the currency specified in the Order Form, on or before the due dates set forth in the Order Form. If Customer fails to make any payment when due, without limiting Crewscope’s other rights and remedies: (i) Crewscope may charge interest on the past due amount at the rate of 2% per month; (ii) Customer shall reimburse Crewscope for all costs incurred by Crewscope in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Crewscope may suspend Customer’s and its Authorized Users’ access to and use of any portion or all of the Platform or the Services until such amounts are paid in full.
(b) “Expenses” Unless otherwise specified in the Order Form, Customer will reimburse Crewscope for all pre-approved reasonable travel, administrative, and out-of-pocket expenses incurred in relation to the Services, provided that Crewscope provides supporting documentation for such expenses.
(c) “Taxes” All Fees and other amounts payable by Customer hereunder are exclusive of taxes and similar assessments. Customer is responsible for all sales taxes, goods and services taxes, value added taxes, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Crewscope’s income.
6. Confidentiality
(a) “Confidential Information” From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”).
(b) “Exclusions” Confidential Information does not include information that at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party.
(c) “Non-Disclosure” The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.
(d) “Permitted Disclosures” Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.
(e) “Return or Destruction of Confidential Information” On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.
(f) “Term” Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire 3 years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property
(a) “Crewscope IP” Customer acknowledges that, as between Customer and Crewscope, Crewscope owns all right, title, and interest, including all intellectual property rights, in and to the Crewscope IP and, with respect to Third-Party Platforms, the applicable third-party provider owns all right, title, and interest, including all intellectual property rights, in and to the Third-Party Platforms.
(b) “Customer Data” Crewscope acknowledges that, as between Crewscope and Customer, Customer owns all rights, titles, and interests, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Crewscope a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Crewscope to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) “Feedback” If Customer or any of its employees, contractors, or Authorized Users sends or transmits any communications or materials to Crewscope by mail, email, telephone, or otherwise, suggesting or recommending changes to the Crewscope IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Crewscope is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Crewscope on Customer’s behalf, and on behalf of its employees, contractors, and/or agents, all rights, titles, and interests in, and Crewscope is free to use (but not required to use) any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
8. Privacy and Data Protection
(a) “Compliance with Privacy Laws” Without limiting the generality of Section 3(a), Customer represents, warrants, and covenants to Crewscope that Customer’s access to and use of the Platform and the Services shall comply with all applicable Laws relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes; (ii) monitoring or recording of electronic or telephonic communications; (iii) the privacy, security or protection of Personal Information, including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information; and (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies.
(b) “Crewscope’s Privacy Policy” Customer hereby permits Crewscope to use account registration information and other Personal Information of Authorized Users that may be collected in connection with the use of the Services, as described in Crewscope’s Privacy Policy available at https://crewscope.com/privacy-policy/, as updated from time to time.
(c) “Privacy Notices” Customer shall provide and make available to Authorized Users a privacy notice that describes the collection, use, and disclosure of the Authorized Users’ Personal Information in connection with Customer’s use of the Services, including without limitation, such collection, use, and disclosure contemplated by this Agreement.
(d) Restricted Data Client shall ensure that Customer Data does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act or medical information governed by US state healthcare privacy laws, (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm-Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes special categories of data regulated by the GDPR or (ix) Personal Information of children under the age of consent for purposes of applicable privacy Laws. Crewscope shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
(e) “Data Security Procedures” Crewscope will implement and maintain reasonable technical and organizational measures to ensure the security and protection of Customer Data and Confidential Information, taking into account the nature and sensitivity of the information to be protected, the risk presented by processing, the costs of implementation, and industry standards.
9. Third-Party Platforms and Content
(a) “Third-Party Platforms” The customer acknowledges that certain platforms, websites, services or products on the Platform that are integrated or enabled for use with the Services are provided by third parties (the “Third-Party Platforms“). Customer authorizes Crewscope to (i) access and exchange Customer Data (including Personal Information) with the Third-Party Platform on behalf of Customer and its Authorized Users; and (ii) if required by the third-party provider of the Third-Party Platform, retain Customer Data for the such time period and otherwise in accordance with the terms of such Third-Party Platform.
(b) “Third-Party Content” If Customer or the Authorized Users are redirected to linked sites and content in connection with their use of any Third-Party Platform, Customer acknowledges and agrees that: (i) Customer is responsible for its and the Authorized Users’ compliance with the terms of use and privacy policies of such sites and content; and (ii) any opinions, advice, statements, content, services, offers or other information expressed or made available by or on any Third-Party Platform are those of the respective third-party authors or distributors and do not necessarily state or reflect those of Crewscope.
10. Disclaimers
(a) “Limited Warranty” Crewscope warrants that the Services will conform in all material respects to the service levels set forth in Exhibit A when accessed and used in accordance with the Documentation. Crewscope does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. The remedies set forth in Exhibit A are Customer’s sole remedies and Crewscope’s sole liability under the limited warranty set forth in this Section 10(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND CREWSCOPE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PLATFORMS.
(b) “Exclusion of Warranties” EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE PLATFORM, THE SERVICES, AND THE CREWSCOPE IP ARE PROVIDED “AS IS” AND CREWSCOPE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CREWSCOPE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), CREWSCOPE MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, THE SERVICES, THE CREWSCOPE IP, 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.
11. Indemnification
(a) “Crewscope Indemnification” Crewscope shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Platform, the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; provided that Customer promptly notifies Crewscope in writing of the claim, cooperates with Crewscope, and allows Crewscope sole authority to control the defense and settlement of the such claim. If such a claim is made or appears possible, Customer agrees to permit Crewscope, at Crewscope’s sole discretion, to modify or replace the Platform, the Services, or component or part thereof, to make it non-infringing, or to obtain the right for Customer to continue use. If Crewscope determines that neither alternative is reasonably available, Crewscope may terminate the Order Form in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. In such event, Crewscope shall refund to Customer any pre-paid, unused Fees for the terminated portion of the Services for the remainder of the Term. The foregoing indemnification will not apply to the extent that the alleged infringement arises from (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Crewscope or authorized by Crewscope in writing; (ii) modifications to the Services not made by Crewscope; (iii) Customer Data; or (iv) Third-Party Platforms. This Section 11(a) sets forth Customer’s sole remedies and Crewscope’s sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate or otherwise violate any intellectual property rights of any third party.
(b) “Customer Indemnification” Customer shall indemnify, hold harmless, and, at Crewscope’s option, defend Crewscope from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Crewscope or authorized by Crewscope in writing; or (iv) modifications to the Services not made by Crewscope; provided that Customer may not settle any Third-Party Claim against Crewscope unless Crewscope consents to such settlement, and further provided that Crewscope will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice provided that such counsel shall be at the expense of Crewscope. .
12. Limitations of Liability
(a) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
(i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES;
(ii) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
(iii) LOSS OF GOODWILL OR REPUTATION;
(iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR
(v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CREWSCOPE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) IN NO EVENT WILL CREWSCOPE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO CREWSCOPE UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Term and Termination
(a) “Term” This Agreement commences on the Effective Date and will remain in effect for so long as the Order Form is in effect unless otherwise terminated in accordance with the provisions herein (the “Term”).
(b) “Termination” In addition to any other termination right set forth in this Agreement:
(i) Crewscope may terminate the Order Form (and this Agreement), effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 5 days after Crewscope’s delivery of written notice thereof, or (B) breaches any of its obligations under Section 2(c) or 6;
(ii) either Party may terminate the Order (and this Agreement), effective on written notice to the other Party if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of the such breach; or
(iii) either Party may terminate the Order Form (and this Agreement), effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
(c) “Effect of Expiration or Termination” Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Crewscope IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Crewscope IP and certify in writing to the Crewscope that the Crewscope IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) “Survival” This Section 13(d) and 1, 5, 6, 7, Section 10(b), 12, and 14 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
14. Miscellaneous
(a) “Entire Agreement” These Terms of Service and the Order Form, together with any other documents incorporated herein by reference and all related Exhibits, constitute 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, and representations and warranties, both written and oral, with respect to such subject matter.
(b) “Conflicting Terms” In the event of any inconsistency between the terms in the body of these Terms of Service and the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Customer with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement.
(c) “Notices” All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties as follows: (i) to Crewscope at 24 St Germain Ave Toronto, ON, Canada, M5M 1V8, and (ii) to Customer at the addresses set forth in the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). 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 email (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 third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
(d) “Force Majeure” In no event shall Crewscope be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Crewscope’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of a law or any action taken by a governmental or public authority, including imposing an embargo.
(e) “Amendments and Waiver” Any changes or modifications to these Terms of Service will be effective immediately upon posting of the revised Terms of Service on this website provided Crewscope has given Customer notice of such changes or modification 5 days in advance of posting the revised Terms of Service, and if no such notice is provided, 5 days after notice is provided notwithstanding Customer’s continued use of such Services., and Customer’s continued use of the Services after such time set out in the preceding sentence will constitute Customer’s agreement to be bound by such modified Terms of Service. The Terms of Service will always show the ‘last updated’ date at the top. Except for the foregoing, no amendment to or waiver of any provision of these Terms of Service or the Order Form is effective unless it is in writing and signed by an authorized representative of each Party.
(f) “Severability” If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) “Governing Law and Forum” These Terms of Service and the Order Form, and all related documents and matters arising out of or relating to this Agreement, are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any legal suit, action, litigation, or proceeding arising out of, from, or relating to this Agreement shall be instituted in the courts of the Province of Ontario, and each Party irrevocably submits to the exclusive jurisdiction of such courts.
(h) “Assignment” Customer may not assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder without the prior written consent of Crewscope. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) “Equitable Relief” Each Party acknowledges that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that the other Party will be entitled to equitable relief and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law.
(j) “Counterparts” This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.
EXHIBIT A
SERVICE LEVEL AGREEMENT
The Company will ensure that the Services satisfy the following requirements:
1. Context
Crewscope software-as-a-service is a productivity and employee engagement solution that is NOT considered mission-critical. As such, the solution is designed and marketed in a way that it will not immediately impact the capability of the Customer in delivering on their obligations to their own respective customers.
2. System Availability
Overall System Availability
Service Level Requirement
Overall availability of the Platform, outside of the specified maintenance windows, is targeted at 99% “Availability”
Definition
Availability during each month will be calculated using the following formula:
Availability = (Full Availability of Services as defined below – unscheduled outage minutes)
Measurement Minutes
“Full Availability of Services” means the total number of minutes in the month, i.e. 24 hours a day, every day of the month
3. Incident Response and Resolution Times
Response and Resolution Objectives (RRO): Crewscope will use priority categories set forth below to provide responses and resolutions in the event of interruptions to the Availability of the Platform. Any reference to “hours” below is considered within the support hours as defined in section 4 below.
Priority: Critical
Description: The entire software system is not available, or the major functionality of the software is unavailable in the way that it renders the solution practically unusable.
Target Response Time: 3 hours
Target Resolution Time: 24 hours
Priority: Significant
Description: Material functionality in the software is not functioning according to the documentation, negatively impacting usability.
Target Response Time: 8 hours
Target Resolution Time: 48 hours
Priority: Minor
Description: The issue does not prevent the usage of the core functionality of the software.
Target Response Time: 3 days
Target Resolution Time: 14 days*
* If a resolution is decided to be applicable at the discretion of Crewscope
Recovery Point Objective (RPO): Crewscope strives to maintain the backup of all critical data pertaining to the Customer every 24hrs to enable recovery in case of data integrity issues or data loss arising from interruptions, software updates, or other issues excluding actions taken by the Customer.
4. Support Hours
Support hours are between 9 am and 7 pm Eastern Standard Time on all weekdays except for Canadian statutory holidays.
Authorized Users will have access to technical support from a Crewscope representative during support hours via intake email support@crewscope.com
Phone or teleconferencing support can be pre-arranged by initiating a support request via email.
