This Subscription Services Agreement, including exhibits, addenda and incorporated online terms (“Agreement”) governs each Order Form signed by the Crunchafi entity and the Customer (“Customer”) identified in the related Order Form. This Agreement is by and between Crunchafi LLC and its Affiliates (“Crunchafi”) and Customer. This Agreement shall be effective as of the Order Form Effective (the “Effective Date”) signed by the Parties. Crunchafi and Customer are each a “Party” and collectively the “Parties” to this Agreement. For purposes of this Agreement “Affiliate” means any entity that controls, is controlled by or is under common control with a party.
- AGREEMENT. This Agreement describes the terms governing Customer’s subscription to the Crunchafi services provided to Customer, including updates, and new releases (collectively, the “Services”). This Agreement includes by reference any Order Forms entered into between Customer and Crunchafi.
1.1. No agreement or understanding, oral or written, purporting to modify this Agreement shall be binding on Crunchafi unless it is made in writing, specifically stating that it is a modification of this Agreement and it is signed by Crunchafi’s authorized representative. No course of dealing, usage of trade, or course of performance shall be relevant to explain or supplement any of this Agreement.
1.2. If this Agreement is deemed an offer, Customer's acceptance of Crunchafi’s offer is expressly limited to acceptance of this Agreement. Customer's use of the Services shall constitute Customer's assent to this Agreement. Any terms and conditions contained in any other form of communication from Customer that are additional to or different from this Agreement shall be deemed rejected by Crunchafi, unless expressly accepted in writing by Crunchafi’s authorized representative.
1.3. Alternatively, if this Agreement is deemed to be a response to, an acceptance of, or a written confirmation of Customer’s offer, Crunchafi’s acceptance is expressly conditioned upon Customer’s assent to this Agreement.
1.4. Customer shall pay Crunchafi in accordance with the terms in the applicable Order Form.
- CUSTOMER'S RIGHTS TO USE THE SERVICES.
2.1. The Services are protected by copyright, trade secret, and other intellectual property laws. Subject to Customer’s compliance with this Agreement, Customer and its End Users (as defined in the applicable Order Form) are granted the right to use the Services only for Customer’s internal business purposes and as agreed to in writing in the applicable Order Form for the term of the Agreement. Customer is responsible for the acts and omissions of an End User. Each End User is required to accept the Acceptable Use Policy, attached hereto as Appendix 1. To the extent any terms in this Agreement that conflict with terms in the Acceptable Use Policy, the terms in this Agreement will prevail. Crunchafi reserves all other rights in the Services.
2.2. Customer agrees neither to use nor to allow any End User or third party to use the Services in a manner that violates any applicable law, regulation, or this Agreement. Customer shall not:
2.2.1. Provide access to or give any part of the Services to any third party, except as otherwise provided herein;
2.2.2. Reproduce, modify, copy, sell, trade, lease, rent, or resell the Services, except as otherwise provided herein;
2.2.3. Decompile, disassemble, or reverse engineer the Services; or
2.2.4. Make the Services available on any file-sharing or application hosting service or use the Services in an effort to create, develop, or procure products or services which are competitive to the Services.
- CONTENT AND USE OF THE SERVICES.
3.1. Responsibility for Content and Use of the Services.
3.1.1. "Content” means any data, information, materials, text, graphics, or images that Customer or its End Users upload, post, or store in or to the Services. By making Content available through Customer’s use of the Services, Customer grants Crunchafi a worldwide, royalty-free, non-exclusive license to use Content solely for the purpose of providing the Services. Crunchafi shall maintain reasonable security measures designed to prevent unauthorized access or loss of Content.
3.1.2. Customer agrees not to use, or allow any End User or third party to use the Services to upload, post, distribute, link to, publish, reproduce, engage in, promote, or transmit any of the following:
3.1.2.1. Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages "flaming" others or criminal or civil liability under any local, state, federal, or foreign law;
3.1.2.2. Content that would impersonate someone else or falsely represent an individual’s identity or qualifications, or that may constitute a breach of any individual’s privacy, is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
3.1.2.3. Investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication, or spamming or flooding, except as permitted by Crunchafi in writing;
3.1.2.4. Virus, Trojan horse, worm, or other disruptive or harmful code or data; or
3.1.2.5. Any Content that Customer does not own or have the right to use.
3.2. Restricted Use of the Services. Customer shall not, and shall not permit any End Users or any third party to, engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm, or damage to the reputation of Crunchafi or could subject Crunchafi to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of the Services or third-party accounts, data, computers, systems, or networks; (ii) interference with others’ use of the Services or any system or network, including mail bombing, broadcast, or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, spidering, and harvesting; (iv) any other activity that places Crunchafi in the position of fostering, or having potential or actual liability for, illegal activity in any jurisdiction; (v) directly or indirectly using or accessing the Services to create, develop, or procure products or services which are competitive to the Services, or to solicit users to join or use any such competitive services, or (vi) attempting to probe, scan, penetrate, or test the vulnerability of the Crunchafi system or network or to breach Crunchafi’s security or authentication measures, whether by passive or intrusive techniques.
3.3. Crunchafi May Monitor Content. Crunchafi may, but has no obligation to, monitor access to or use of the Services or Content or to review or edit any Content for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. Crunchafi may disclose any information necessary to satisfy Crunchafi’s legal obligations, protect Crunchafi or its customers, or operate the Services properly. Crunchafi, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Content, in whole or in part, that is alleged to be, or that Crunchafi considers to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
3.4. Crunchafi's Use of Aggregated Data. Customer acknowledges and agrees that Crunchafi may create and derive anonymized and/or aggregated data related to the Services or Customer’s use of the Service that does not identify Customer, End Users, or any individual, and use, publicize, or share with third parties such data to improve Crunchafi’s products and services and for its legitimate business purposes.
- CRUNCHAFI INTELLECTUAL PROPERTY.
4.1. Crunchafi and its licensors reserve and retain all right, title, and interest in and to the Services and Crunchafi software included in the Services, including without limitation any modifications, improvements, enhancements, derivative works thereof, and all intellectual property rights inherent therein (including, without limit, all inventions, patents, trade secrets, trademarks, trade names, copyrights, and all other proprietary rights pertaining thereto), whether or not based upon information provided pursuant to the Agreement. All rights not expressly granted in this Agreement are reserved by Crunchafi and its licensors. Except as provided in the applicable Order Form, Customer will not use any trademark, trade name, logo, or corporate name of Crunchafi or any contraction, abbreviation, or simulation thereof without the prior written permission of Crunchafi.
4.2. Crunchafi May Freely Use Feedback. Customer agrees that Crunchafi may use Customer's and its End Users’ feedback, suggestions, or ideas, including for future modifications of the Services, other products or services, or advertising or marketing materials. Customer grants Crunchafi a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback Customer and its End Users provide to Crunchafi.
- CRUNCHAFI TESTING ACCOUNT.
5.1. A "Testing Account" is an account used by the Customer to test the Services free of charge. A Testing Account may only be used during the term of the Testing Account as identified in the Order Form and solely for the purpose of either demonstrating Crunchafi Services to a potential End User or testing the setup of a lease. Crunchafi may extend the term of the Testing Account at its sole discretion. Customer may not use a Testing Account in production, such as to export financial information that is input into financial statements or to otherwise update financial statements. Crunchafi may terminate a Testing Account at any time.
5.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY SERVICES PROVIDED RELATED TO A TESTING ACCOUNT ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. CRUNCHAFI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR A TESTING ACCOUNT UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE CRUNCHAFI’S LIABILITY WITH RESPECT TO THE TESTING ACCOUNT SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
- CONFIDENTIAL INFORMATION.
6.1. "Confidential Information" means all information provided by one party ("Disclosing Party") to the other party ("Receiving Party") relating to Disclosing Party or its business operations, which is not generally publicly known and which a reasonable and prudent person would hold to be confidential or proprietary by its nature or content. Confidential Information includes, without limitation, the following: information regarding existing, new or envisioned products, product features, and/or services and their development and performance; technical information about computer software and hardware; business or financial information relating to data processing, personnel, marketing, sales, customers, pricing, costs, and quotations, including, without limitation, information concerning the names, addresses, and preferences of the customers and prospective customers of Disclosing Party; information concerning the transactions of Disclosing Party with its customers or proposed customers; information concerning the marketing programs of Disclosing Party; and any information expressly labeled by Disclosing Party as confidential or proprietary. Notwithstanding the foregoing, the term "Confidential Information" shall not include, and the obligations of non-disclosure set forth in this Agreement shall not apply to, any information which: (i) can be demonstrated by Receiving Party by written evidence to have been known by it prior to the disclosure of such information to the Receiving Party by Disclosing Party; (ii) is or becomes generally available to the public through no fault of Receiving Party; (iii) is obtained by Receiving Party in good faith from a third party who discloses such information to Receiving Party on a non-confidential basis having affirmatively represented to Receiving Party that it is without any obligation of confidentiality or secrecy relating to the information disclosed; or (iv) is independently developed by employees or other agents of Receiving Party who did not have access to Confidential Information of Disclosing Party.
6.2. The Parties acknowledge that, as a result of the provision of the Services under this Agreement, Receiving Party and its employees, agents, or affiliates, may be exposed to certain Confidential Information of Disclosing Party. Each Party agrees that it, as Receiving Party, shall: (i) treat all Confidential Information of Disclosing Party as private and confidential; (ii) not use any Confidential Information of Disclosing Party other than in furtherance of this Agreement or an Order Form; (iii) not, without the consent of Disclosing Party, disclose any Confidential Information to anyone other than employees, agents, or affiliates of Receiving Party who have a need to know under confidentiality obligations substantially similar to the terms of this Agreement; and (iv) use no less than commercially reasonable efforts to ensure the privacy, confidentiality, and security of Disclosing Party’s Confidential Information. If Crunchafi is required to disclose Confidential Information belonging to Customer, Crunchafi will provide written notice to Customer.
- ADDITIONAL TERMS.
7.1. Crunchafi Does Not Give Professional Advice. Crunchafi is not in the business of providing legal, financial, tax, healthcare, real estate, or other professional services or advice. Consult the services of a competent professional when this type of assistance is needed.
7.2. Communications. Crunchafi may be required by law to send Customer communications about the Services or third-party products. Customer agrees that Crunchafi may send these communications via email or by posting them on Crunchafi’s websites (“Sites”).
7.3. Customer Will Manage Its Passwords and Accept Updates. Customer is responsible for securely managing password(s) for the Services and contacting Crunchafi if Customer becomes aware of any unauthorized access to Customer’s or its End Users’ accounts. Customer is liable for all actions taken under its and its End Users’ accounts. The Services may periodically be updated with tools, utilities, improvements, third-party applications, or general updates to improve the Services.
7.4. Use of Name of Either Party. Either Party agrees that the other Party may use its name/logo in advertising, promotion, and similar public disclosures, provided the express written consent of the other Party is obtained. Such consent will not be unreasonably withheld and will be subject to any logo guidelines publicly posted or otherwise agreed between the Parties in writing.
- WARRANTIES AND DISCLAIMER OF WARRANTIES.
8.1. CRUNCHAFI WARRANTS THAT (i) IT SHALL PERFORM ALL SERVICES IN A PROFESSIONAL, WORKMANLIKE MANNER BY ADEQUATELY QUALIFIED PERSONNEL; AND (ii) IT SHALL PERFORM ALL SERVICES IN SUBSTANTIAL ACCORDANCE WITH THE SPECIFICATIONS, FEATURES, AND FUNCTIONALITY SET FORTH IN ANY GUIDES, MANUALS, OR OTHER DOCUMENTATION PROVIDED BY CRUNCHAFI.
8.2. CUSTOMER’S USE OF THE SERVICES AND SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS AGREEMENT, CRUNCHAFI, ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY PROVIDERS, LICENSORS, DISTRIBUTORS, OR SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, RELATED TO DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, OR QUALITY OF CONTENT IN OR LINKED TO THE SERVICES. CRUNCHAFI AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO CUSTOMER, ANY IMPLIED WARRANTIES ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
8.3. CRUNCHAFI, ITS AFFILIATES, AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS, LAWS, OR REGULATIONS.
- LIMITATIONS OF LIABILITY.
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF EITHER PARTY, THEIR AFFILIATES, AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF TWELVE (12) MONTHS OF SUBSCRIPTION FEES PAID OR PAYABLE UNDER THIS AGREEMENT OR ONE HUNDRED THOUSAND DOLLARS ($100,000). SUBJECT TO APPLICABLE LAW AND EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR: (i) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (ii) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, THEFT OR LOSS OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS, OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET CRUNCHAFI SYSTEM REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO CUSTOMER’S: (a) BREACH OF SECTION 3; (b) INFRINGEMENT OF CRUNCHAFI’S INTELLECTUAL PROPERTY; OR (c) PAYMENT OBLIGATIONS UNDER THE AGREEMENT, OR CRUNCHAFI’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, LIABILITY FOR CLAIMS RELATED TO BREACH OF CONFIDENTIALITY OBLIGATIONS SHALL BE LIMITED TO TWO TIMES THE FEES. THE ABOVE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL CLAIMS AGAINST CRUNCHAFI ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL EXPIRE UNLESS MADE AND PRESENTED TO CRUNCHAFI IN WRITING BY CUSTOMER WITHIN TWO (2) YEARS FROM THE DATE THE CLAIM AROSE.
9.2. Notwithstanding anything to the contrary in this Agreement, Crunchafi shall have no obligations or liabilities under this Agreement to the extent a claim, damage, or liability is caused by (i) a modification or alteration of the Services by Customer or any other modification or alteration by any person or entity other than Crunchafi or its employees, agents, or subcontractors; (ii) the combination of any Services with other software or components by Customer, by Crunchafi at the request or direction of Customer, or by any person or entity other than Crunchafi or its employees or agents; (iii) the unique specifications requested by Customer; (iv) any third-party software or materials provided by Customer or approved in writing by Customer; (v) use of the Services by Customer or an End User for any purpose other than its intended purpose or contrary to instructions set forth in any documentation provided by Crunchafi; or (vi) Customer’s or its End Users’ negligence or breach of this Agreement.
- INDEMNITY.
10.1. Customer Indemnification. Customer agrees to indemnify and hold Crunchafi and its affiliates and Suppliers harmless from any and all liability and expenses, including reasonable attorneys' fees and costs, related to third-party claims arising out of: (i) Customer’s use of the Services in violation of Section 3 of this Agreement; or (ii) Crunchafi’s use of Customer or End User Content pursuant to this Agreement.
10.2. Crunchafi Indemnification. Crunchafi agrees to indemnify and hold Customer and its affiliates harmless from any and all claims, liability, and expenses, including reasonable attorneys' fees and costs, based on any third-party action brought against Customer to the extent such action is based upon a claim that the Services (except for any content or materials posted or provided by third parties such as other users of the Services) infringe an intellectual property right of a third party. If the Services are held to infringe on a third party’s intellectual property rights, Crunchafi may at its sole discretion either: (i) replace such Services so they are non-infringing and provide substantially equivalent functionality as that provided by the infringing Services; or (ii) terminate the Agreement and provide a refund to Customer of the pro-rated fees paid for the infringing or misappropriated Services for the period of time during which Customer was unable to use such Services and of any pre-paid fees for Services not used.
10.3. Indemnification Procedures. The indemnifying Party’s obligations under this Section are conditioned on: (i) the indemnifying Party receiving prompt notice in writing of claims; (ii) the indemnifying Party having sole control over the defense and settlement thereof; (iii) reasonable cooperation from the indemnified Party, as applicable, at indemnifying Party’s expense; and (iv) the indemnified Party not being in breach of this Agreement. Crunchafi reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims.
- CHANGES. Crunchafi may change or discontinue any part of the Services provided there is no material degradation in the functionality of the Services.
- TERMINATION AND SUSPENSION.
12.1. Termination for Cause. Either Party may terminate this Agreement immediately for cause by giving written notice to the other Party in the event the other Party (i) becomes insolvent or unable to meet its obligations as they become due or files or has filed against it a petition under the bankruptcy laws; (ii) ceases to function as a going concern or to conduct its operations in the normal course of business; (iii) assigns or transfers, either voluntarily or by operation of law, any rights or obligations under this Agreement without consent of the Party seeking to terminate; or (iv) breaches the terms of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In the event that Crunchafi terminates the Agreement for cause in accordance with this Section, Crunchafi may retain any fees prepaid by Customer.
12.2. Crunchaf may, in its sole discretion and without notice, terminate or suspend Customer’s or its End Users’ access to the Services, effective immediately, in whole or in part, (i) if Crunchafi determines or has reasonable suspicion that Customer’s or its End Users’ use of the Services violates the Agreement, is improper or substantially exceeds or differs from normal use by other users, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues; or (ii) to protect the integrity or availability of the Services or systems or comply with applicable Crunchafi policy.
12.3. Upon notice that Customer’s use of the Services has been terminated by Crunchafi, Customer and End Users must immediately stop using the Services and any Crunchafi Materials and any outstanding payments become due. Any termination of this Agreement shall not affect Crunchafi’s rights to any payments due to it for Services provided. Sections 2.2 and Sections 3 through 15 will survive and remain in effect even if the Agreement is terminated.
12.4. Customer may at any time during the term of the Agreement export any Content entered by Customer. Upon termination, Customer’s access to its and its End Users’ accounts and ability to download its Content shall cease and Customer’s data shall be deleted, except as required for Crunchafi’s records retention or in backups.
- EXPORT RESTRICTIONS. Customer acknowledges that the Services may be subject to restrictions under applicable US export control laws, including US trade embargoes and sanctions and security requirements, and applicable country or local laws to the extent compatible with US laws. Customer agrees that it will comply with all applicable export laws and regulations and will not export, re-export, import, or otherwise make available products and/or technical data in violation of these laws and regulations, directly or indirectly.
- GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to conflict of laws principles. To the extent any litigation arises out of this Agreement, such litigation shall be brought in the courts of the United States or the State of Wisconsin located in Milwaukee, Wisconsin, and the Parties hereto hereby consent to personal jurisdiction and venue in such courts.
- MISCELLANEOUS.
15.1. Entire Agreement. This Agreement is the entire agreement between Customer and Crunchafi regarding its subject matter and replaces all prior understandings, communications, and agreements, oral or written, regarding its subject matter.
15.2. Severability. If any court of law, having proper jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable.
15.3. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
15.4. Assignability. Either Party may assign or transfer this Agreement to (i) an affiliate; (ii) a company through a sale of assets; or (iii) a successor by merger. Notwithstanding the foregoing, in no event shall the assignment or transference of this Agreement be to a competitor of the other Party without prior written approval from that Party. Any assignment in violation of this Section shall be void.
15.5. Force Majeure. Crunchafi is not responsible or liable for any delay in or failure of or performance of Services due to (i) any cause beyond Crunchafi’s reasonable control; (ii) an act of God, act of Customer, third party, embargo, or other government act, authority, regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, armed conflict, act or threat of terrorism, riot, epidemic, pandemic, or delay in transportation; or (iii) the inability to obtain necessary labor, materials, components, or facilities. Crunchafi is not responsible for Customer’s internet connection or service, and is not responsible for issues relating to availability, performance, privacy, or security resulting from the use of the internet or third-party networks to transmit data.
15.6. Independent Contractor. Each Party to this Agreement is an independent contractor and assumes full responsibility for the payment of all compensation, Social Security, unemployment, and other taxes and charges for all persons engaged by it in the performance of the work or Services to be performed hereunder. Each Party is not and shall not represent itself as authorized to enter into any contract or other obligation on behalf of the other.
15.7. Third-Party Products.Crunchafi may make third-party products available to Customer through the Services. For purposes of this Agreement, such third-party products may be subject to their own terms and conditions and the applicable flow-through provisions.
15.8. Notice. Any notices or other communications required or permitted to be given hereunder shall be in writing and shall be considered to be given and received in all respects when hand delivered, when sent by prepaid express or courier delivery service, or three (3) days after being deposited in certified U.S. mail, postage prepaid, return receipt requested, addressed, in the case of Customer, to the address indicated on the Order Form, and, in the case of Crunchafi, as follows: Crunchafi, Attn: Legal Department, 790 North Milwaukee Street, Suite 302, Milwaukee, Wisconsin 53202-4073, or to such other address as may be designated by notice duly given.
15.9. Contact Information. The Services hereunder are offered by Crunchafi, LLC and its Affiliates. If you have questions about this Agreement, please contact us at legal@crunchafi.com.
Appendix 1-Acceptable Use Policy
- GENERAL TERMS
This Crunchafi Acceptable Use Policy (“AUP”), effective as of the date that the End User first receives access to the Crunchafi online services and related software (the “Services”), is by and between Crunchafi LLC, a Wisconsin limited liability company located at 790 N Milwaukee Street, Suite 302, Milwaukee, Wisconsin, 53202-4073 (“Crunchafi”), and the End User. Crunchafi and End User are each a “Party” and collectively the “Parties” to this AUP.
- PROHIBITED USE
Crunchafi grants the right to use the Services exclusively to authorized End Users. This AUP allows you, as an End User, to access and use the Services, subject to the following restrictions and conditions of use.
(a) As an End User, you will receive a user ID and password. You may not share, distribute, sell, or lease the user ID or password to any other person. You are responsible for the security of your credentials and all actions taken under your credentials.
(b) The Services may be periodically updated with tools, utilities, improvements, third-party applications, or general updates to improve Services functionality. You agree to receive updates to the Services as they may become available.
(c) You may not display, license, rent, lease, lend, or distribute the Services or use the Services in an effort to create, develop, or procure products or services which are competitive to the Services.
(d) You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Services or any part thereof. Any attempt to do so is a violation of the rights of Crunchafi and/or its licensors. If you violate this restriction, you may be subject to prosecution and damages.
(e) You agree to not use the Services to upload, post, distribute, link to, publish, reproduce, engage in, promote, or transmit any of the following:
(i) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages "flaming" others or criminal or civil liability under any local, state, federal or foreign law;
(ii) Content that would impersonate someone else or falsely represent an individual’s identity or qualifications, or that may constitute a breach of any individual’s privacy; is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
(iii) Except as permitted by Crunchafi in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication, or spamming or flooding;
(iv) Virus, Trojan horse, worm, or other disruptive or harmful software or data; or
(v) Any Content that End User does not own or have permission from the intellectual property rights owner(s) to use.
- CRUNCHAFI LICENSE TO USE CONTENT
By making any Content available through your use of the Services, you grant Crunchafi a worldwide, royalty-free, non-exclusive license to host and use Content solely for the purpose of providing services through the Services. “Content” means any data, information, materials, text, graphics, or images that an End User uploads, posts, or stores in or to the Services.
- CRUNCHAFI'S MONITORING OF CONTENT
You agree that Crunchafi may, but has no obligation to, monitor access to or use of the Services or Content or to review or edit any Content for the purpose of operating the Services, to ensure compliance with this AUP, and to comply with applicable law or other legal requirements. Crunchafi may disclose any information necessary to satisfy Crunchafi’s legal obligations, protect Crunchafi or its customers, or operate the Services properly. If Crunchafi is required to disclose information belonging to End User, Crunchafi will provide written notice to End User and to any other affected Party or Parties. Crunchafi, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Content, in whole or in part, that is alleged to be or that Crunchafi considers to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
- SUSPENSION
Crunchafi may suspend this AUP at any time upon reasonable suspicion that the End User has breached this AUP or for any other reason. Upon any such termination or expiration, you shall no longer be permitted to use the Services and will no longer have access to any data you uploaded to the Services.
- TERMS APPLICABLE TO END USERS
(a) DISCLAIMER OF WARRANTIES. NEITHER CRUNCHAFI NOR ITS THIRD-PARTY PROVIDERS WARRANT THE SERVICES WILL PERFORM IN ACCORDANCE WITH ANY SPECIFICATIONS, DOCUMENTATION, OR OTHER STANDARDS, PERFORM IN AN UNINTERRUPTED CAPACITY, BE ERROR-FREE OR BUG-FREE, OR PROVIDE COMPLETE OR ACCURATE DATA, NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. NEITHER CRUNCHAFI NOR ITS THIRD-PARTY PROVIDERS WILL IN ANY WAY BE LIABLE TO END USER OR ANY OTHER ENTITY OR PERSON FOR THEIR INABILITY TO USE THE SERVICES OR FOR ANY INACCURACIES, ERRORS, OMISSIONS, DELAYS, COMPUTER VIRUSES OR OTHER INFIRMITY OR CORRUPTION, DAMAGES, CLAIMS, LIABILITIES, OR LOSSES, REGARDLESS OF CAUSE, IN OR ARISING FROM THE USE OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS AND WITHOUT WARRANTY OR ANY TECHNICAL SUPPORT OF ANY KIND. NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR OF ANY OTHER TYPE, ARE PROVIDED HEREUNDER.
(b) LIMITATION OF LIABILITIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF CRUNCHAFI, ITS AFFILIATES, AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AUP SHALL BE LIMITED TO TWO HUNDRED DOLLARS ($200). SUBJECT TO APPLICABLE LAW AND EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR: (i) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, THEFT OR LOSS OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS, INVESTMENTS, OR USE OF SERVICES OR HARDWARE THAT DOES NOT MEET CRUNCHAFI SYSTEM REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF CRUNCHAFI AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AUP SETS FORTH THE ENTIRE LIABILITY OF CRUNCHAFI AND ITS AFFILIATES AND IS END USER’S EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND THEIR USE.
(c) Indemnification. End User will defend Crunchafi against any claim, demand, suit, or proceeding made or brought against Crunchafi by a third party alleging that any of End User’s data that End User uploads to the Services, or End User’s use of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Crunchafi”), and will indemnify Crunchafi against any damages, attorneys’ fees, and costs finally awarded against Crunchafi as a result of or for any amounts paid by Crunchafi under a court approved settlement of a Claim Against Crunchafi, provided Crunchafi (i) promptly gives End User written notice of the Claim Against Crunchafi; (ii) gives End User sole control of the defense and settlement of the Claim Against Crunchafi (except that End User may not settle any Claim Against Crunchafi unless it unconditionally releases Crunchafi of all liability); and (iii) gives End User all reasonable assistance, at End User’s expense.
(d) Crunchafi and its licensors reserve and retain all right, title, and interest in and to the Services and Crunchafi software included in the Services, including without limitation any modifications, improvements, enhancements, derivative works thereof, and all intellectual property rights inherent therein (including, without limit, all inventions, patents, trade secrets, trademarks, trade names, copyrights, and all other proprietary rights pertaining thereto), whether or not based upon information provided pursuant to this AUP. All rights not expressly granted in this AUP are reserved by Crunchafi and its licensors.
