Effective: February 25, 2015

Crowdskout LLC (Crowdskout), located at 1101 K Street NW, Suite 810, Washington, DC 20005, provides a data-driven marketing platform built for nonprofits, organizations, publishers and businesses. By using these Services, you (including any person using the Services on your behalf) are deemed to have read and agreed to the following terms and conditions (“Terms of Use”). Additional terms and conditions (“Additional Terms”) applicable to specific areas of the Website or content may be posted in other areas of the Website and, together with these Terms of Use, govern your use of the Services, Website, content, or areas. When you access or use these specific areas, the applicable Additional Terms will apply to you, and will automatically be incorporated into these Terms of Use by reference. If you do not agree to these Terms of Use, you may not access or use the Services or Website.

 

DEFINITIONS

“Agreement” means these Terms of Use, Additional Terms, Billing Document, and any additional Customer Specific Terms attached thereto.

“Customer” means the entity licensing the Services and any of its officers, directors, employees, volunteers, representatives or agents using the Services.

“Customer data” means data originating from the Customer and transmitted through the Services.

“Customer Specific Terms” means terms, if any, specific to a given Customer that are incorporated into a Billing Document or this Agreement.

The “Effective Date” means the earlier of either Customer’s payment or the date the Services and tools are available for Customer’s use.

“Billing Document” means any form(s) submitted to Customer detailing the Services licensed and the amounts Customer is obligated to pay.

“Services” means the data enhancement, collection of data, analysis of data, and execution of communications, maintenance, support services and any other services or products provided by Crowdskout as set forth herein. Services does not include custom data consulting or other services for which Customer executes a separate agreement with Crowdskout.

“Users” means Customer personnel authorized to access the Services.

 

PRIVACY POLICY

Please refer to Crowdskout’s Privacy Policy found athttp://crowdskout.com/privacy-policy, which explains how we collect, use, and disclose information that pertains to your privacy. When you access or use these Services or Website, you signify your agreement to this Privacy Policy.

Crowdskout does not knowingly collect or solicit personally identifiable information from children under thirteen (13) years of age. You must be at least 13 years old to use these Services or to comment on any portion of the Website. If you are not 13 years old, please do not send any personal information about yourself or attempt to sign-up for any of the Services.

 

CHANGES TO SERVICES AND TERMS

Crowdskout updates and improves the Services and may remove features in order to improve your ability to use the Services.

Crowdskout reserves the right to modify these Terms of Use at any time without giving prior notice. Your continued use of the Services and/or Website following any such modification constitutes your agreement to follow and be bound by the Terms of Use as modified. The last date these Terms of Use were revised is set forth above. Any changes to these Terms of Use (other than as set forth in this paragraph) or waiver of Crowdskout’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Crowdskout. No purposed waiver or modification of these Terms of Use by Crowdskout via telephonic or email communication shall be valid.

 

FEES

Service Fees are set forth in a pricing document or in a Billing Document. You must pay all Service Fees in advance upon the Effective Date, by check, credit card or wire transfer, without setoff, deduction or delay. If additional services are purchased, additional service fees shall be due and payable in full at once on the date the additional services are available for use by you. Past due payments will bear interest at the rate of one and one-half percent (1 ½%) per month or the maximum rate otherwise permitted by applicable law, whichever is lower, and will be payable from the due date thereof until paid in full. You will be liable for all collection costs and expenses, including reasonable attorneys’ fees incurred by Crowdskout to collect Service Fees. Each party will be responsible for the payment of any taxes due as a result of its provision or use of the Services. This Section survives termination of the Agreement.

 

SERVICES

Contingent on Customer compliance with the terms of the Agreement, and in exchange for the payment of Service Fees, Crowdskout hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Services on the Effective Date for the term set forth when registering to license the Services. Any and all rights not expressly granted to Customer are reserved by Crowdskout. Crowdskout agrees to use commercially reasonable efforts to provide Customer with the Services and to make the Services available for use.

Customer agrees to (a) use the Services and tools solely for its own internal business purposes and agrees not to rent, lease, sublicense, time-share, or otherwise distribute access to the Services and tools for resale, or to host applications to provide service bureau, time-sharing, or other data enhancement services to third parties, or to otherwise make available the Services to any third parties, (b) not to reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Services, (c) to take appropriate actions to protect the Services and all parts thereof from unauthorized copying, modification, or disclosure by its users and other third parties, (d) not to interfere with or disrupt the integrity or performance of the Service or disobey any requirements, procedures, policies or regulations of Crowdskout with respect to its computer systems and networks, (e) attempt to gain unauthorized access to the Services or circumvent or modify any security mechanism employed by Crowdskout, (f) use the Services other than for lawful, internal business purposes and as authorized under this Agreement, (g) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the Services or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses, (h) transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature, (i) make use of the Services in whole or in part in any way to build a competitive product or service, build a product using similar ideas, features, functions or graphics, or copy any of its ideas, features, functions, or graphics. Customer may not use the Services or access the Services if Customer is a direct competitor of Crowdskout, or for any other benchmarking or competitive purposes.

Customer shall comply with all applicable laws and regulations concerning export, data privacy and protection and cooperate with Crowdskout in connection with compliance.

Crowdskout is an independent contractor. Nothing in this Agreement will at any time be so construed as to create the relationship of employer and employee, partnership, principal and agent, or joint venture between Customer and Crowdskout. This paragraph survives termination of the Agreement.

Use of the Services is conditioned on Customer obtaining and maintaining access to the Internet, and all equipment necessary for proper operation of the Services. Customer shall be solely responsible for obtaining and maintaining Internet access and necessary equipment. Customer is required to maintain and use secure user names and passwords for the access and use of the Services. Customer shall be responsible for ensuring the security and confidentiality of such user names and passwords and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and shall notify Crowdskout immediately of any such unauthorized use or other known breach of security. Customer is responsible for all activities that occur under Customer’s user names and passwords. Customer shall report to Crowdskout immediately and use reasonable efforts to stop immediately any copying or distribution of the Services that is known or suspected by Customer.

Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data and in accordance with Crowdskout’s Acceptable Use Policy and Privacy Policy as set forth on Crowdskout’ website, and as amended from time to time. Crowdskout reserves the right to update such policies in its sole discretion. Any use of the Services in violation of these policies shall be a material breach of this Agreement.

Customer agrees to provide Crowdskout with access related to Customer’s use of the Services as reasonably requested by Crowdskout to verify compliance with this Agreement and agrees not to block or interfere with such efforts by Crowdskout.

Customer shall cooperate with Crowdskout to enable Crowdskout to provide the Services. Upon request by Crowdskout, Customer shall promptly provide Crowdskout with a list of Users. Customer is responsible for keeping such list current and providing Crowdskout with updates. Customer is responsible for restricting the use of the Services to authorized Users, and for implementing and enforcing industry-standard secure logon and password procedures.

 

INTELLECTUAL PROPERTY RIGHTS

Customer hereby acknowledges that all right, title and interest in and to the Services and tools and all intellectual property rights therein, including patent, unpatented inventions, software, hardware, processes, user interfaces, algorithms, know-how, techniques, and other tangible or intangible technical material or information, specifications describing the features, functionality or operation of the Services, copyright, trademark, trade secret, proprietary information and technology used in or comprising the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer to Crowdskout relating to the Services (collectively, the Crowdskout Intellectual Property”) are owned by, and are vested in, Crowdskout (or its applicable licensors/suppliers). Other than as expressly set forth in this Agreement, no Customer or other rights in the Crowdskout Intellectual Property are granted to Customer and all such rights are hereby expressly reserved by Crowdskout.

Customer shall retain ownership of all data it submits through the Services and may use, reproduce, modify, adapt, publish, create derivative works from, distribute, sell, exchange, lease, license, transfer and display such data.

Customer grants to Crowdskout a non-exclusive, nonrevocable, royalty-free license to use data submitted by Customer through the Services to be used by Crowdskout to improve its services and products, and to conduct its own internal experiments. Any such use of Customer data will be anonymized by Crowdskout and Crowdskout will use all reasonable efforts to protect Customer’s proprietary data.

Customer grants to Crowdskout the royalty-free, worldwide, nonexclusive right and license to use, reproduce, modify, adapt, publish, create derivative works from, and display all Customer data for the sole purpose of providing the Services.

This Section survives termination of the Agreement.

 

REPRESENTATIONS, WARRANTIES, AND COVENANTS

Each party hereby represents and warrants that it is a legal entity duly organized, validly existing and in good standing; has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party; and will comply, in its performance related to the Agreement, with all applicable laws.

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not permit users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.

The Services are provided “as is” and without warranties of any kind by Crowdskout and its affiliates, including without limitation, any warranties of accuracy or completeness of any data contained in the Services or implied warranties of merchantability or fitness for a particular purpose. Customer hereby acknowledges that it has not relied upon any warranty, condition, guaranty or representation made by Crowdskout or its affiliates, or any third party.

Customer agrees and warrants that it is permitted to share any data and information submitted to Crowdskout through the use of the Services, and that the sharing of data does not violate any applicable law, regulation, agreement, contract, or privacy policy.

EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CROWDSKOUT MAKES NO WARRANTIES REGARDING THE SERVICES PROVIDED HEREUNDER. CUSTOMER ACKNOWLEDGES THAT CROWDSKOUT’S SOLE OBLIGATION IS TO PROVIDE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT. THEREFORE, THE SERVICES ARE PROVIDED AND ACCEPTED BY CUSTOMER “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. CROWDSKOUT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT ALL FAILURES OF THE SERVICES WILL BE CORRECTED.

Crowdskout exercises no control over, and accepts no responsibility for, any third party components of the Service which are outside Crowdskout’s control, such as Internet access, and computer or network equipment, all of which are the responsibility of Customer. Accordingly, Crowdskout makes no guarantees regarding the speed or uptime of the Service, nor represents that it will be uninterrupted, secure, or error-free. Crowdskout disclaims any responsibility for the accuracy, legality, completeness, or quality of Customer’s product from using the Services.

Customer acknowledges that the information available from the use of the Services, Crowdskout’s systems and/or through the interconnecting networks may not be accurate. Crowdskout makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of the date and/or information available from or through use of the Services and such systems and networks. Use of information obtained from or through Crowdskout’s Services and networks and the use of the Services are at Customer’s sole and absolute risk. CROWDSKOUT SPECIFICALLY DISCLAIMS AND DENIES ANY RESPONSIBILTY FOR THE COMPLETENESS, ACCURACY OR QUALITY OF THE SERVICES PROVIDED BY IT UNDER THE TERMS OF THIS AGREEMENT.

Customer represents and warrants that it owns, or possesses all legal right to provide and process, as contemplated by this Agreement, all Customer Data, has obtained all necessary consents for the processing and use of the Customer Data under this Agreement, and of the Customer Data by Crowdskout following the termination or expiration of the term of this Agreement, and has provided all notices to individuals represented in the Customer Data required by Law or by agreement for the performance by the Parties of their obligations under this Agreement and for Crowdskout’s use of the Customer Data after the termination of this Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right of all Customer Data. Crowdskout is under no obligation to review Customer Data for accuracy, acceptability or potential liability.

Crowdskout represents and warrants that it owns, or possesses all legal right to provide the Services as contemplated by this Agreement.

Customer represents and warrants, to the best of its knowledge, that it has complied with all applicable U.S. federal and state laws, regulations, rules, ordinances, intellectual property rights or violation of privacy (collectively, “Laws”) in the processing, acquisition, compilation, maintenance and disclosure of the Customer Data, and the disclosure, processing and use by either Party of the Customer Data pursuant to this Agreement will not violate any such Laws. Customer represents and warrants to Crowdskout that Customer, to the best of its knowledge, has complied with all applicable Laws, including the Fair Credit Reporting Act, the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act, in acquiring, processing, compiling, maintaining and disclosing the Customer Data, and that none of the information contained in the Customer Data (a) is used, expected to be used or collected, in whole or in part, for the purpose of serving as a factor in establishing any consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, employment purposes, or any other purpose authorized under section 604 of the Fair Credit Reporting Act; (b) contains “Non Public Personal Information” as defined in § 6809(4) of the Gramm-Leach-Bliley Act; (c) was or will be collected outside the United States from non-U.S. residents; and (d) was compiled from Federal Election Commission data or reports, except for those of the Customer.

Customer agrees that it will use the Services or Deliverables under this Agreement in a manner that is consistent with applicable federal and state laws, including but not limited to, the Fair Credit Reporting Act. Customer will implement and enforce such internal measures as are needed to ensure compliance with this restriction and will provide to Crowdskout upon request a summary of internal measures implemented.

Customer shall make best efforts to ensure that no viruses, spyware, malware or similar items (collectively, “Malware”) are coded or introduced into any Customer Data. Customer agrees that, in the event that any Malware is found to have been introduced, Customer shall assist Crowdskout in reducing the effects of the Malware and, if the Malware causes a loss of operational efficiency or loss of data, to reasonably assist Crowdskout to mitigate and restore such losses. Customer shall not knowingly or willfully damage any equipment or system used by Crowdskout in connection with the Services. Crowdskout shall make best efforts to ensure that no Malware is coded or introduced into the Services.

This Section survives termination of the Agreement.

 

COPYRIGHT DISPUTE POLICY

Crowdskout reserves the right to delete or disable Customer data alleged to be infringing, and to suspend or terminate the access of any Customer alleged to have submitted infringing Customer data.

 

CONFIDENTIALITY

Each party shall have access to information that is confidential to the other party (“Confidential Information”) including but not limited to with respect to Crowdskout, the Services and tools, and any other information which is not otherwise readily available in the public domain and specifically including all information marked “confidential”, and the pricing terms of this Agreement. The Parties agree (i) not to make each other’s Confidential Information available to any third party; (ii) not to use each other’s Confidential Information except to perform this Agreement, (iii) to hold each other’s Confidential Information in confidence during the term of this Agreement and thereafter, and (iv) no adequate remedy at law exists for breach of this Section and any such breach would cause irreparable harm to the non-breaching party whom shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise. Either party may make such disclosures as may be necessary by reason of legal, accounting or regulatory requirements beyond either party’s reasonable control provided the disclosing party first provides the other party with sufficient notice of such required disclosure so the other party has a reasonable amount of time to obtain a protective order. Confidential Information shall not include information that (i) is in the public domain through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure, or (iv) is independently developed by the other party. The Parties’ obligations under this section will survive termination of the Agreement for a period of five years.

 

LIMITATION OF LIABILITY

Crowdskout shall not be liable to Customer, or any third parties, for any consequential, indirect, punitive, special, exemplary, or incidental damages or expenses, or damages or expenses of any kind arising from loss of anticipated profits, business interruption, loss of use, loss of revenue, corruption of data, loss of goodwill, cost of capital, loss or damage to property or equipment, and loss of reputation or any and all other similar damages or loss whether in contract, tort, product liability (including negligence or strict liability), or otherwise in connection with or arising out of this Agreement or the use of the Services even if advised of the possibility of the occurrence of such damages or expenses. In no event shall Crowdskout’s liability hereunder to Customer or a third party, from any cause of action whether in contract, tort, indemnity or otherwise, exceed the amounts paid to Crowdskout for the Services hereunder giving rise to the claim in the twelve month period immediately preceding the event(s) giving rise to the Claim. THIS IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT BY CROWDSKOUT.

Crowdskout shall not be liable for any loss resulting from a cause over which Crowdskout does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to Customer’s computer; problems with intermediate computer or communications networks of facilities; problems with data transmission facilities, telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. Crowdskout is not responsible for any damage to Customer’s computers, software, modem, telephone or other property resulting from Customer’s use of the Services.

This Section survives termination of the Agreement.

 

INDEMNIFICATION

Customer will indemnify, defend and hold harmless Crowdskout, its affiliates, subsidiaries and related companies, and its and their directors, members, officers, agents, representatives, and employees, and each of their respective successors against any and all third party claims, suits, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such Claims (a) made or brought against Crowdskout by a third party alleging that the Customer’s use of the Services infringes the intellectual property rights of, or has otherwise harmed a third party; (b) based on any failure or alleged failure of the Customer or its users to comply with any applicable law, rule or regulation in connection with its use of the Services; and (c) any breach by Customer of any representation, warranty or covenant set forth in this Agreement.

Crowdskout will indemnify, defend and hold harmless Customer, its affiliates, subsidiaries and related companies, and its and their trustees, members, officers, directors, agents, representatives, and employees, and each of their respective successors against any and all third party claims, suits, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such Claims, arising out of any claim brought against the Customer by a third party contending that Customer’s use of the Services infringes any U.S. patent rights of a third party. In the event that the Services or any part thereof are likely to, in Crowdskout’s sole opinion, or do become, the subject of an infringement related Claim, and Crowdskout cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non-infringing, then Crowdskout may terminate the Services. Crowdskout shall have no liability for any Claim or demand arising from an allegation that does not state with specificity that the Services are the basis of the Claims; the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by Crowdskout if the Services or use thereof would not infringe without such combination, or Crowdskout’s compliance with Customer’s instructions. The foregoing states Crowdskout’s entire liability and Customer’s sole remedy for claims of intellectual property infringement.

The indemnities set forth in this Section are subject to the conditions that (a) the party to be indemnified shall forthwith notify the indemnifying party upon being notified or otherwise made aware of a Claim (provided, that the failure to so notify the indemnifying party shall not affect the indemnifying party’s obligations hereunder unless the indemnifying party is materially prejudiced by such failure) and (b) the indemnifying party shall defend and control any proceedings with the other party being permitted to participate at its own expense (unless there shall be a conflict of interest which would prevent representation by joint counsel, in which event the indemnifying party shall pay for the indemnified party’s counsel); provided, that any settlement or voluntary consent judgment shall not be entered into without the consent of the other Party. The Parties shall cooperate in the defense of any Claim.

This Section survives termination of the Agreement.

 

TERM AND TERMINATION OF USE OF SERVICES

This Agreement shall become effective on the Effective Date and shall remain in effect for the entire time Customer is using any part of the Services.

This Agreement may be terminated earlier in its entirety without liability to the terminating party as follows: (a) by Crowdskout upon fifteen (15) days written notice for Customer’s failure to timely pay any Service Fees, (b) by either party upon thirty (30) days written notice in the event the other party materially breaches this Agreement, which breach is not cured within said thirty (30) days, (c) by either party immediately upon notice upon the institution of any insolvency, bankruptcy or similar proceeding by or against the other party including an assignment for the benefit of creditors, the appointment of a receiver over assets, an attachment of assets lasting more than thirty (30) days, or the other party ceases to conduct its business operations in the ordinary course of business. Crowdskout may terminate this Agreement immediately if any change occurs in any applicable laws or regulations that would, in its sole opinion, render its performance hereunder illegal or otherwise subject to legal challenge. Crowdskout may suspend access to Services or use of the Services upon breach of this Agreement by Customer prior to termination. Crowdskout may suspend Services during any period in which Service Fees remain past due and/or terminate your use of the Services. Services may be restored in Crowdskout’s sole discretion upon payment in full of past due amounts and applicable connection and other fees.

Upon termination of the use of Services for any reason, your right to access the Services and tools and data immediately ceases and all licenses granted hereunder shall immediately terminate. Termination of the use of Services does not relieve you of your obligation to pay all Service Fees owing under this Agreement. You agree that Crowdskout shall not be liable to you or any third party for any termination of the Services.

This Section survives termination of the Agreement.

 

GOVERNING LAW AND EXCLUSIVE VENUE

This Agreement shall be governed by the laws of the State of Illinois, without regard to its conflict of laws rules. Each party agrees that as to any dispute arising under or relating to this Agreement or use of the Services, exclusive jurisdiction and venue shall be in state or federal court in the State of Illinois. Each party acknowledges and agrees that it shall not raise in connection therewith, and hereby irrevocably waives, any defense based upon venue, inconvenience, or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. This Section survives termination of the Agreement.

 

NOTICES

All notices that are required to be given under this Agreement will be in writing and will be sent to the address of the other Party as set out in this Agreement or at such alternative address as the Party may designate by notice. Any such notice may be delivered personally, by overnight delivery service, by registered or certified mail, return receipt requested, fax or email. Notice delivered personally, by overnight delivery service, or by registered or certified mail shall be effective when received, which shall be no greater than one business day after sent by personal delivery or overnight delivery service or three days after being sent by registered or certified mail. Notices by fax will be deemed received on the date of such fax transmission, provided that the sending fax machine used for such transmission generates a report showing successful completion of such transaction; provided, however, that if such fax transmission is sent after 5:00 p.m. local time at the location of the receiving fax machine, or is sent on a day other than a business day, such notice or communication will be deemed given as of 9:00 a.m. local time at such location on the next succeeding business day. Notices by email will be deemed received when the recipient acknowledges having received that email, either by an email sent to the email address for the sender on the signature page of this Agreement or by a notice given by one of the other means described in this section (with an automatic “read receipt” not constituting acknowledgment). This Section survives termination of the Agreement.

 

ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement of the Parties and supersedes all prior or contemporaneous written or oral negotiations, correspondence, understandings, and agreements between the Parties respecting the subject matter hereof. Any changes, additions, stipulations or deletions including corrective lining out by any Party to this Agreement or signatory to this Agreement will not be considered agreed to or binding on any other Party unless such modifications have been initialed or otherwise approved in writing by all Parties to this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. The Parties agree that should any conflict or inconsistency arise between the application and interpretation of this Agreement and any document provided by either Party, other than a mutually agreed upon and signed amendment or waiver, then the provisions of this Agreement shall prevail. This Section survives termination of the Agreement.

 

ASSIGNMENT

Customer shall not assign or transfer this Agreement or any of its rights or obligations herein, whether in whole or in part, without the prior written consent of Crowdskout. This Section survives termination of the Agreement.

 

GENERAL PROVISIONS

The headings to and numbering of the clauses of this Agreement are for ease of reference only and will not affect the interpretation, application, or construction of this Agreement.

Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

Unless otherwise stated, this Agreement does not create, and shall not be construed as creating any rights enforceable by any person not a Party to this Agreement. Notwithstanding the foregoing sentence, each Party shall be entitled to bring claims on behalf of its respective Indemnified Parties.

If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the parties’ intent, and the remainder will remain in full force and effect.

Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private communications made by Crowdskout with respect to future functionality or features of the Services.

In the event of any conflict between the provisions in this Agreement and any Billing Document or other communication between Crowdskout and Customer, the terms of this Agreement shall prevail if so expressly stated therein. No terms of conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Except for payment obligations, neither Party shall be liable for any failure of or delay in performance of its obligations under this Agreement (other than Customer’s payment obligations hereunder) to the extent that such failure or delay is due to circumstances beyond its reasonable control, including acts of God, acts of a public enemy, fires, floods, embargoes, storms, explosions, vandalism, cable cut, power failure, epidemics, national emergencies, insurrections, riots, wars, lockouts, boycotts, work stoppages, labor disputes or other labor difficulties, failure or malfunction of Customer equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than Crowdskout, or of any civil or military authority.

No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.

If a proceeding is brought for the enforcement of this Agreement or because of any alleged or actual dispute, breach, default or misrepresentation in connection with any of the provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled.

The Services are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable and as amended. Any use, modification, reproduction, release, performance, display or disclosure of the Services or such documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.

This Section survives termination of the Agreement.