Exhibit E
Master ServiceAgreement
Customer Full Legal Name: Secured Investment Corp
Customer Address: 701 E FrontAve,Fl 2, Coeur d'Alene, ID 83814
This Master Subscription Services Agreement is betweenCrowd Engine,Inc.,aDelaware corporation with its principal place of business at 4770 South 900 East, Suite 200, SaltLakeCity, UT 84117(“CrowdEngine"), and the Customer namedabove (“Customer"). This Agreement iseffective as of the last date beneath the parties' signatures below (the“Effective Date").
CrowdEngineprovides crowdfunding solutions through which CrowdEngine's customers canoperateanequity, donation, orrewards based crowdfunding website.
Customer desires to access and use CrowdEngine's solutions tooperate a crowdfunding website.
Therefore, for good andvaluable consideration, the receipt and sufficiency of which isherebyacknowledged, and intending to be legally bound, CrowdEngine and Customer agree as follows:
1. | DEFINITIONS |
1.1 “Administrative Account" meanssecurity access codes, passwords and user IDs for Customer'sauthorized internal personnel to access the CrowdEngineTechnologyand Subscription Services for the purpose of configuring and administering the CustomerPortal.
1.2 “Affiliate" meansany entity which directly or indirectly controls, is controlledby, or is under common control with the subjectentity.“Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of thevoting interests of the subjectentity.
1.3 “Agreement" meanscollectively this Master Subscription Services Agreement andany exhibits, schedules and addenda hereto andanyService Order entered into between Customer and CrowdEngine.
1.4 “Applicable Laws" meansanycountry,federal, state,provincial, commonwealth,cantonal or localgovernment laws, statutes, rules, regulations, or ordinances or similargovernment requirement applicable to aparty,including without limitation all applicable securities, data protection,privacyand electronic communicationslaws and regulations, whether in existence as of the date of this Agreement or thereafter enacted, promulgated or amended.
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1.5 “Authorized User" meansany individual orentitywhich is required to log in to the CustomerPortal in order to use one or more of its features or functionalities.Authorized Usersmayinclude, without limitation, individuals or entities that use the CustomerPortalto run a crowdfunding project and toprovide rewards or to issueequityin connection with such project, tomake pledges to orinvestmentsin a crowdfunding project orinvestment offering, and/or toprovidecomments or questions with respect to a crowdfunding project.
1.6 | “Authorized User Agreement" has the meaninggivento such term in Section 4. |
1.7 "CrowdEngine Technology" means the computerhardware, software, source code, proprietary methods and systems, and other tangible equipment and intangible computer code necessary todeployandserve the Subscription Services via the CustomerPortal,asavailable on theEffective Date of this Agreement and subject to modification from time to time.
1.8 “Customer Content" means all information, content and materialsprovided by Customer and/or its End Users which aredisplayed and/or published on the CustomerPortal, including without limitation text, artwork, information relating to projects, products, services, designs, andprototypes of Customer and/or its End Users, and all Proprietary Rights relatedthereto.
1.9 “Customer Data" means business and financial data and information of Customer, submittedby or for Customer to the Subscription Services, or collected and processedby or for Customer using the Subscription Services relating to Customer's crowdfunding activities on the CustomerPortal, and all End User Information.
1.10 “Customer Domain" means the public domain name ownedby Customer (for example, Customername.com) which Customer will point and configure to the CustomerPortalURL for End Users to access the CustomerPortal.
1.11 "Customer Portal" means the CrowdEngine URL created for Customer, hostedby CrowdEngine (for example, Customer.crowdengine.com) (the “CustomerPortal URL"), to which Customer drives End Users via its Customer Domain and the site at which CrowdEngine willprovide the Subscription Services, including the CrowdEngineTechnology, to Customer pursuant to this Agreement.
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1.12 “Documentation" means documentation related to Customer's access of the CrowdEngineTechnologyto access and use the Subscription Services deliveredby CrowdEngine to Customer, as updatedby CrowdEngine from time to time.
1.13 “End Users" meanscollectively Authorized Users and Visitors.
1.14 “End User Information" means the names, phone numbers, email addresses,physicaladdresses, contact information, credit card information andany other personal or business information of End Users.
1.15 “Malicious Code" means code, files, scripts, agents orprograms intended to do harm, including, for example, viruses, worms, time bombs andTrojan horses.
1.16 "Proprietary Rights" meansany and all rights, whether registered or unregistered, in and with respect to patents,copyrights, Confidential Information,know-how, trade secrets,moral rights,contract or licensing rights, confidential and proprietary information protected undercontract or otherwise protected underlaw,trade names, domain names,trade dress, logos, animatedcharacters, trademarks, service marks, and other similar rights or interests in intellectualproperty.
1.17 “Service Order" means an ordering documentspecifying the Subscription Services to beprovided hereunder that is entered into between Customer and CrowdEngine, includingany addenda and supplementsthereto.
1.18 "Subscription Services" means the web services described and specified on the applicable Service Order andanyupdates orupgrades to such services whichmaybegenerally releasedbyCrowdEngine to its Customers and End Users from time to time during the term of this Agreement. The Subscription Services include the CrowdEngineTechnology.
1.19 “Visitor" means an individual who is permitted to use certain features or functionalities of the CustomerPortalwithout being requiredby Customer to log in. Visitorsmayinclude, without limitation, those individuals who browse the CustomerPortal and those who are allowedbyCustomer toprovidecomments or questions regarding a crowdfunding project without logging in.
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2. SERVICES
2.1 Interface Customization. Unless otherwise agreed to in the applicable Service Order, CrowdEngine will provide a standard design template that can be customized or replacedby Customer.
2.2 Launch Support. If so specified in the applicable Service Order, CrowdEngine will also provide launch support services to Customer to expedite Customer'sset-upand use of the Subscription Services.
2.3 Provision of Subscription Services. CrowdEngine will (a) use commercially reasonable efforts tomakethe Subscription Servicesavailable to Customer pursuant to this Agreement and the applicable Service Order,
(b)provideCrowdEngine standard support for the Subscription Services to Customer at no additional charge, and/orupgradedsupport, if purchased, and (c) use commercially reasonable efforts tomake the online Subscription Servicesavailable24 hours aday,7days a week,except for: (i) planned downtime (of which CrowdEngine willgiveat least 24 hours electronic notice and which CrowdEngine will schedule to the extentpracticableduring theweekendhours between 6:00p.m. Friday and 3:00 a.m.MondayMountain time), and (ii)any unavailability causedbycircumstancesbeyondCrowdEngine's reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than oneinvolvingCrowdEngineemployees),Internet serviceproviderfailure ordelay,or denial of service attack. Customer acknowledges that End Users will access the CustomerPortalvia their own Internet access(i.e.,CrowdEngine is not supplying internet access or support to End Users).
3. USE OF SERVICES
3.1 Permitted Use. Customermay only access and use the Subscription Services for the purpose of offering the CustomerPortal to Customer's End Users.
3.2 Non-transferability. The rights granted in this Agreement are granted only to the named Customer, and not toany otherentity, including without limitation Customer's Affiliates. Customermaynottransfer or sublicense its rights under this Agreement or sell or redistribute the CustomerPortal toany otherparty.
3.3 Administrative Accounts for Subscription Services. CrowdEngine will permit access to the Subscription ServicesbyCustomer onlyover the Internet usingAdministrativeAccounts assignedby CrowdEngine toauthorizedCustomeremployees. Administrative Accounts will be deemed the Confidential Information of CrowdEngine.Accordingly, noAdministrativeAccountmay be sharedby Customer or Customeremployees withany other individual not assigned such anAdministrative AccountbyCrowdEngine,except that an
AdministrativeAccountmaybe reassigned to a new individual replacing one who no longer requires ongoing use for Customer's permitted use of the Subscription Services. Customer will be responsible for all activities conducted using theAdministrativeAccounts.
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3.4 Administration. Customer will be responsible for theadministration of the CustomerPortal via the assignedAdministrativeAccounts and for all Customer Content that appears therein, including, without limitation the design,configuration,and customfunctionality of the CustomerPortalthat is permittedby the Subscription Services.
3.5 Technical Contacts. Customer will designate a primary technical contact for communicating with CrowdEngine regarding technical issues hereunder. Customer may change its primary technical contact from time to timeby providing written notice to CrowdEngine.
3.6 Fulfillment. Customer will be solely responsible for fulfilling all orders and/orinvestmentsplacedby End Users via the CustomerPortaland forproviding customer service to End Users.
3.7 Other Customer Responsibilities. In addition to all other obligations and requirements of Customer set forth in this Agreement, Customer will (a) be responsible for itsemployees' compliance with this Agreement,
(b) be responsible for theaccuracy,quality andlegalityof Customer Data and the meansbywhich Customer acquires Customer Data, (c) use commercially reasonable efforts to safeguard and protect theAdministrativeAccounts andprevent unauthorized access to or use of the Subscription Services, andnotifyCrowdEngine promptly ofany such known or suspectedunauthorizedaccess or use, (d) use Subscription Services only in accordance with this Agreement, the Documentation and ApplicableLaws,and (e) notwithstandinganything to thecontraryin this Agreement, not refer to CrowdEngine or includeany information about CrowdEngine inany writtenprivate placementmemorandum or other written offering material or communications usedbyCustomer in connection with an offering of securities without CrowdEngine's prior written consent in each instance.
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3.8 Use Restrictions.Except as allowed herein, Customer represents,covenantsandwarrants that Customer will not, nor will it permit or assist othersto,do or attempt to doany of the following: (a)makethe Subscription Service or CrowdEngineTechnologyavailable to, or use the Subscription Service CrowdEngineTechnology for the benefitof,anyone other than Customer orAuthorizedUsers in accordance with the terms and conditions of this Agreement, (b) sell, resell, license, sublicense, distribute, rent, lease or time-share the Subscription Service, CrowdEngineTechnology orAdministrativeAccounts,or,except as expressly permitted in Section 3.1, include the Subscription Service or CrowdEngineTechnology in a service bureau or outsourcing offering, (c) use the Subscription Service or CrowdEngineTechnologyto store ortransmitinfringing, libelous,defamatory,fraudulent,or otherwiseunlawful or tortious material, oranydiscriminatory,obscene, harmful,pornographic,vulgar,harassing, hateful,abusiveorracially,ethnically, religiously,sexually or otherwiseoffensivematerial, oranymaterial in violation ofthird-party privacy rights, (d) process or permit to be processed the data ofany third-partythat is not expresslyauthorizedherein to access and use the Subscription Service or CrowdEngine Technology, (e) use the Subscription Service or CrowdEngineTechnologyto store,transmit or propagateanyMalicious Code orany otherprogrammingroutine intended to damage the Subscription Services or CrowdEngine Technology, (f) interfere with or disrupt theintegrityor performance of the Subscription Service or CrowdEngineTechnology or thethird-party data contained therein, (g) attempt to gainunauthorizedaccess to the Subscription Service or CrowdEngineTechnology or its related systems or networks or the thirdparty data contained therein, (h) abuse orfraudulentlyuse the Subscription Service or CrowdEngine Technology, or access, alter, or destroy any information of any Customer of CrowdEngineby anyfraudulentmeans or device, (i) permit direct or indirect access to or use of the Subscription Service, CrowdEngineTechnologyorAdministrative Accounts in away thatcircumvents acontractual usage limit, (j) knowingly permit access to the CustomerPortal by a direct competitor of CrowdEngine, (k)copy the Subscription Service or CrowdEngineTechnologyorany part, feature, function or user interfacethereof,(l) access the Subscription Services or CrowdEngineTechnology for the purpose of building a product or service that iscompetitive with, or copies the features or user interface of, the Subscription Services or CrowdEngine Technology, (m) use or permit to be used the Subscription Services or CrowdEngineTechnology for purposes ofevaluating,benchmarking or doingany othercomparativeanalysis of the services or products offered through the Subscription Services or CrowdEngine Technology, for the purposes of publication without CrowdEngine's prior written consent, which CrowdEngine will be free to withhold foranyor no reason, (n) access,modify,
copy,cache, store or createderivativeworks based on the Subscription Service or CrowdEngineTechnology, (o) attempt to reproduce or duplicate, or succeed in reproducing or duplicating, the Subscription Services, (p) reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codeof,any part of the CrowdEngineTechnology(to the extent such restriction is permittedby ApplicableLaws),(q)utilize the CustomerPortal or Subscription Services as a factor in establishing an individual'seligibility for credit,insurance oremployment, or in connection with a determination of an individual'seligibility for a license or other benefitgranted by agovernmentalauthority, or in connection with underwriting individualinsurance,or inanyway that would cause the Subscription Services to constitute a “consumer report" under theFair CreditReporting Act or similar statute orby any authority having jurisdictionover the parties, (r) use spam or unsolicited email to promote the Subscription Service or CrowdEngineTechnology, or (s) use the Subscription Service, CrowdEngineTechnology, or CustomerPortalin a manner that violatesany ApplicableLaw.Customer agrees to abideby our upstreamprovidersAcceptable UsePolicy,availableherehttps://aws.amazon.com/aup/and herehttps://www.heroku.com/policy/aup.
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3.9 Communication Services. The Subscription Servicesmay contain e-mail services, bulletin board services, news groups, forums, communities, personal web pages, calendars, photo albums, file cabinets or other message or communication facilities designed to enable Customer or End Users to communicate with others
(the"Communication Services"). Customer agrees to use the Communication Services only to post, send andreceivemessages and materials that are proper and, when applicable, related to the particular Communication Services, in accordance with ApplicableLaw.CrowdEngine has no obligation to monitor the Communication Services. CrowdEnginereservesthe right, but is not obligated, to review materials posted to the
Communication Services and to edit,remove or refuse to postanymaterials which are in violation of the representations set forth in this Agreement with or without notice to Customer, or to remove any materials at any time, without notice to Customer, for any reason and in CrowdEngine's sole discretion. CrowdEnginereserves the right to terminate or suspend access toany or all of the Communication Services atanytime, without notice, for any reason whatsoever. Customer acknowledges that emails, chats, postings, conferences and other communicationsbyEnd Users are not controlled or endorsedby CrowdEngine, and such communications will not be considered reviewed, screened orapproved by CrowdEngine. Statements made in forums, bulletin boards, chats and other Communication Services reflect only the views of their authors.
CrowdEngine specifically disclaimsany liability with regard to the Communication Services andany actions resulting from Customer or End User participation inanyCommunication Services. CrowdEnginereserves the right at all times to discloseany Customer Content found on the Communications Services as CrowdEngine deems necessary tosatisfy any ApplicableLaw, regulation, legal process orgovernmental request in CrowdEngine's reasonable business judgment,provided that CrowdEnginegives Customer prior notice of its intent to disclose such Customer Content found on the Communications Services.
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3.10 Third Party Services. Certain linksprovided by CrowdEngine lead to thirdpartywebsites. These thirdparty websites are not under the control of CrowdEngine andmay collect data or solicit personal information from Customer or the End Users. CrowdEngine is not responsible for their content, businesspracticesorprivacypolicies, or for the collection, use or disclosure ofanyinformation those thirdparty websitesmaycollect.
CrowdEngine isproviding these links to Customer and End Users only as aconvenience,and the inclusion ofany link does not imply endorsementbyCrowdEngine of thelinked thirdpartywebsites. Some of these thirdparty websitesmaychargeseparate fees, which are not included inanysubscription or other fees that Customermay pay to CrowdEngine.Any separate charges or obligations Customer incurs in Customer's dealings with these third parties are Customer'sresponsibility.CrowdEnginemakes no representation orwarrantywith regard tothird-party websites, including, without limitation,anyproducts, services,software or contentprovided by any thirdparty even iflinked from the CustomerPortal or via the Subscription Services. CrowdEnginemayin its sole discretion replace or discontinue access toany thirdpartywebsites atany time.
3.11 Suspension of Service. Notwithstandinganything to thecontraryin this Agreement, in theevent ofanybreachby Customer ofany of Customer's representations,warranties, covenants, or obligations under this Agreement, other than fornon-payment asprovided in Section 6.4, in addition toany other remediesavailableatlaw or inequity, CrowdEngine willhave the right to suspendany Subscription Services if deemed reasonably necessaryby CrowdEngine in its reasonable business judgment toprevent any harm to CrowdEngine and its business. CrowdEngine willprovidenotice to Customer and anopportunity to cure, ifpracticable,depending on the nature of the breach. Once cured, CrowdEngine will promptly restore the Subscription Services.
4. AUTHORIZED USER AGREEMENTS.
4.1 Authorized User Agreement. Customer will ensure that eachAuthorizedUser,as a pre-condition to beingauthorized by Customer to use the CustomerPortal,enters into a binding agreement with Customer (which
maybe an electronic agreement which theAuthorizedUser acceptsby “clicking through" an acceptancegateway)(each, an“Authorized User Agreement") which, among other things, (a) limits theAuthorized User's use of the CustomerPortalsolely to conducting theAuthorized User's own crowdfunding project or to pledging to orinvesting in, orproviding comments or questions with respect to anotherAuthorized User's crowdfunding project, (b) contains obligations and restrictions affording protection to the CrowdEngineTechnology,the Subscription Services, and CrowdEngine's Confidential Information consistent in all material respects with, and at least asprotective as, the terms and conditions applicable thereto asprovidedin this Agreement, (c) expressly disclaims andexcludes allwarrantiespurported to be made on or behalfof, and allliabilityof, Customer's suppliers and serviceproviders,(d) requires theAuthorized User toobserveand comply with all ApplicableLaws and to not engage in unfair ordeceptive trade practices orfraudulent activity, (e) obtains from theAuthorizedUser all rights and licenses necessary for CrowdEngine's receipt,storage, processing, use, modification, and disclosure of theAuthorized User's End User Information and other Customer Content suppliedby theAuthorizedUser to the fullest extent necessary or useful for CrowdEngine'sprovision of the Subscription Services and performance of its other obligations hereunder, (f) links to and incorporates the Customer'sprivacypolicy, and (g) requires theAuthorized User to acknowledge and agree that Customer's suppliers and serviceproviders are intended thirdpartybeneficiaries of such agreement and are entitled to rely upon and enforce allprovisionsof such agreement to the same extent as if CrowdEnginewas aparty thereto. Promptly upon becomingaware ofanybreachby anAuthorized User of anAuthorized User Agreement, Customer willtakeall steps reasonably necessary to mitigate the damages,liabilityand otheradverse effects arising therefrom, and topreventfurther harm, including without limitationbydisabling suchAuthorizedUser's access to the CustomerPortal,ifwarranted.
4.2 Customer Privacy Policy. Customer willdisplay on the CustomerPortalandincorporate into eachAuthorizedUser Agreement aprivacy policy which complies with all ApplicableLaws,including without limitation those pertaining toprivacy, user data, personal data, and datasecurity, and will require each End User to agree and consent to theprivacypolicy. Customer will not obtain, collect or useany End User Information, or possessanydata that is not publiclyavailable, in violation or breach of suchprivacypolicy, or otherwise engage inany practiceinconsistent with suchprivacy policy oranyother terms of the Agreement.
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4.3 Visitor Website Terms of Use. Customer will display on the Customer Portal a website terms of use which, among other things, expressly disclaims andexcludes allwarrantiespurported to be made on or behalfof, and allliabilityof Customer's suppliers and serviceproviders, obtains from theAuthorizedUser all rights and licenses necessary for CrowdEngine's receipt,storage, processing, use, modification, and disclosure of theAuthorized User's End User Information and other Customer Content suppliedby theAuthorizedUser to the fullest extent necessary or useful for CrowdEngine'sprovision of the Subscription Services and performance of its other obligations hereunder, links to and incorporates the Customer's privacy policy and includes procedures for notification of andremoval of infringing content consistent with procedures described in the Digital MillenniumCopyright Act, and will require each End User to agree and consent to such terms of use. Customer will promptly respond to all notices ofremovalof infringing content in accordance with the applicable procedures set forth in the Digital MillenniumCopyrightAct.
5. | CUSTOMER CONTENT |
5.1 Customer Representations Regarding Customer Content. Customermay upload or otherwisetransmit on or through the CustomerPortalonly Customer Content that is not subject toany third-party Proprietary Rights, or Customer Content in whichany holder of Proprietary Rights hasgivenexpress authorization for distribution on the CustomerPortal or Subscription Services. Customer represents andwarrant that to the best of its knowledge: (a) the Customer Content and all elements thereto are wholly owned original works of authorship created and/or developedby or for Customer, are in the public domain, or are properly authorizedbythe holder of the Proprietary Rights relating to such Customer Content; (b) Customer did notcopy any contentincorporatedor used in the Customer Content oranyelement thereto fromany copyrighted or other proprietary source ownedby any other person orentitywithout such owner's express authorization; (c) the Customer Content does not infringe uponanystatutory or commonlaw copyright, any trade dress,trademark, or service mark, or any patent; (d) the Customer Content does not violate the right of privacy or publicity of any person, and do not contain any matter libelous or otherwise in contravention of the rights of any third party; (e) the Customer Content contains no matter that violates any federal, state, or local commonlaw,statute, or regulation, nor is it in any manner unlawful;(f)no third party has made any claims of infringement of their Proprietary Rights by the Customer Content. Customer acknowledges and agrees that Customer is solely responsible for all of the Customer Content that is uploaded or otherwise transmitted on or through the Subscription Services. CrowdEngine will have the right, but not the obligation, in its sole discretion to monitor Customer Content on the Customer Portal. CrowdEngine cannot monitor or prescreen all of the Customer Content on the Customer Portal, and CrowdEngine will not be responsible for and will not consistently attempt to do so. Customer acknowledges and agrees that (a) CrowdEngine does not monitor the Customer Content passing through the Subscription Services and Customer Portal for purposes of verifying accuracy or legal compliance, and (b) Customer will ensure that the Customer Content transmitted via the Customer Portal complies with all Applicable Laws and regulations, whether now in existence or hereafter enacted and in force. CrowdEngine will make good faith efforts to investigate allegations that the Customer Content violates this Agreement, but CrowdEngine (a) makes no warranty to Customer that CrowdEngine will edit, remove, or continue to permit the display of any specific Customer Content which violates the representations set herein, whether or not subject to such allegations, and (b) will have no liability whatsoever for editing, removing, or continuing to permit the display of any Customer Content which violates this Agreement. CrowdEngine does not endorse, approve, or prescreen any Customer Content that Customer communicates on the Customer Portal or Subscription Services. CrowdEngine does not assume any responsibility or liability for Customer Content that is generated by Customer using the Customer Portal or Subscription Services. Customer bears the entire risk of the completeness, accuracy or usefulness of Customer Content found on the Customer Portal. CrowdEngine does not control thequality,accuracy or content of any versions of the Customer Portal or Subscription Services translated into a different language by Customer or any thirdparty.Vulgar language, crude or explicit sexual references, discussions of illegal drugs, and hate speech are always inappropriate Customer Content.IF,IN CROWDENGINE'S REASONABLE BUSINESS JUDGMENT, ANY CONTENT IS FOUND TO BE IN VIOLATION OF ANYREPRESENTATIONOR WARRANTY SETFORTHIN THIS AGREEMENT OR ANY STATE OR FEDERALLAWOR ANY APPLICABLE FOREIGNLAWS,RULES ANDREGULATIONS,CUSTOMER HEREBY CONSENTSTHATCROWDENGINEMAYEDIT, DELETE, REFUSETOPOST, AND/OR REMOVE SUCH CONTENT AND/OR SUSPEND ANY OR ALL OF THE SERVICESTOPREVENT ANY HARMTOCROWDENGINE AND ITS BUSINESS. CROWDENGINE WILL PROVIDE CUSTOMER AN OPPORTUNITYTOCURE, IF PRACTICABLE, DEPENDING ON THENATUREOF THE BREACH. ONCE CURED, CROWDENGINE WILLPROMPTLYRESTORE THE SERVICES.
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5.2 Customer Content License. Customer grants CrowdEngine an irrevocable, non-exclusive, worldwide,royalty-free,sublicensable,transferableright and license to use, host, store, cache, reproduce, publish,display(publicly or otherwise), perform (publicly or otherwise), distribute, rent, lease,transmit,modify,adapt (including, without limitation, in order to conform it to the requirements ofanynetworks, devices, services, or media through which the Subscription Servicesmakesthe Customer Contentavailable),and createderivativeworksof, the Customer Content. The rights Customergrantsin this license are for the sole purpose of allowing CrowdEngine toprovide the Subscription Services pursuant to this Agreement. The reference in this license to "create(ing)derivativeworks" is not intended togive CrowdEngine a right tomake substantive editorial changes orderivations of the Customer Content, but does, for example, enable reblogging or reposting of the Customer Content, which allows End Users to redistribute Customer Content from the CustomerPortal to another site in a manner that allows them to add their own text or other content before or after Customer Content.
6. | FEES AND PAYMENT |
6.1 Fees. Customer willpay allFees(including without limitationset-up fees, launch support fees, customdevelopmentfees, and subscription fees) as set forth inany applicable Service Order(s).Except as otherwise specified herein or in a Service Order, (a) fees are based on Subscription Services purchased and not actual usage, and (b)paymentobligations are non-cancelable and fees paid are non-refundable. AllFees are due andpayable within tendays of the date of theinvoice.
6.2 Invoicing and Payment.Fees will beinvoicedand due in accordance with with thepayment terms set forth onany relevant Service Order according to CrowdEngine policies which areavailable online
athttp://crowdengine.com/billing-policies. Customer is responsible forprovidingcomplete andaccuratebilling and contact information to CrowdEngine andnotifyingCrowdEngine ofany changes to such information.Youmust reportany overcharges or billing disputes within 30daysof the timeyou becomeaware, or shouldhave becomeaware, of the existence of theovercharge or dispute.
6.3 Overdue Charges. Ifany invoiced amount is notreceived by CrowdEngineby the due date, then without limiting CrowdEngine's rights or remedies, those chargesmay accrue late interest at therateof 1.5% of the outstanding balance per month, or the maximumrate permittedby law, whichever is lower.
6.4 Suspension of Subscription Service. Ifany charge owingbyCustomer is 30days or moreoverdue,CrowdEnginemay, without limiting its other rights and remedies, suspend Subscription Services until such amounts are paid in full,provided CrowdEngine hasgivenCustomer at least 10days' prior notice that its account isoverduein accordance with the “Notices" sectionbelow.
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6.5 Taxes. CrowdEngine's fees do not includeany taxes, levies, duties or similargovernmental assessments ofany nature, including, for example,value-added, sales, use or withholdingtaxes,assessableby any jurisdictionwhatsoever(collectively,“Taxes"). Customer is responsible forpaying allTaxesassociated with its purchases hereunder. If CrowdEngine has the legal obligation to pay or collectTaxes for which Customer is responsible under this section, CrowdEngine willinvoice Customer and Customer willpay that amount unless CustomerprovidesCrowdEngine with avalid taxexemptioncertificateauthorized by the appropriate taxingauthority. Forclarity, CrowdEngine is solely responsible fortaxesassessable against it based on its income,property andemployees.
6.6 Future Functionality. Customer agrees that unless otherwise expressly stated on a Service Orderexecuted by CrowdEngine, Customer's purchases are not contingent on thedelivery ofany futurefunctionality or features, or dependent onany oral or written public comments madebyCrowdEngine regarding futurefunctionality or features.
7. | CROWDENGINE'S PROPRIETARY RIGHTS |
7.1 Reservation of Rights. CrowdEnginereserves all of its right, title and interest, including without limitation all Proprietary Rights, in and to the CrowdEngineTechnology,the Subscription Services, and the CustomerPortal (excluding the Customer Data and Customer Content), including without limitation, web pages, databases, source code, tools, URL addresses registeredbyCrowdEngine, customfunctionality, CrowdEngine domains, URLs, product names,trademarks, and logos associated with the Subscription Services and underlying source code. All rights not expresslygranted to Customer herein with respect to the Subscription Services and CrowdEngineTechnology are expresslyreserved by CrowdEngine inperpetuity.
7.2 License by Customer to Use Feedback. Customerhereby unconditionally andirrevocably transfers and assigns to CrowdEngineanyrights Customermay have toany suggestions, ideas, enhancement requests, feedback, recommendations or other information that Customer sends to CrowdEngine relating to Customer's suggestions regardingimproving, modifying or changing the Subscription Services(“Feedback"). AllFeedbackwill be deemed unconditionally andirrevocablyassignedbyCustomer to CrowdEngine from the moment of submission and/ordeliveryto CrowdEngine.Accordingly, CrowdEngine will beirrevocablyentitled to use, reproduce,modify, adapt, publish, broadcast, license, perform, post, sell,translate, createderivative works from and distribute any Feedback for any purpose whatsoever, commercial or otherwise, in any medium now known or hereafter devised, without compensation or credit to theprovider of theFeedback.Customer alsogives upany claim thatany usebyCrowdEngine or its licensees or licensors ofany Feedback violatesanyof Customer rights, including but not limited tomoral rights,privacyrights, rights topublicity, proprietary or other rights, or rights to credit for the material or ideas set forth therein.
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8. | CONFIDENTIALITY |
8.1 Definition of Confidential Information. “Confidential Information" means all information disclosedbyaparty (“DisclosingParty")to the otherparty (“Receiving Party"), whetherorallyor in writing, that is designated as confidential or that reasonably should be understood to be confidentialgiventhe nature of the information and the circumstances of disclosure. Confidential Information of Customer includes without limitation Customer Data; Confidential Information of CrowdEngine includes without limitation the Subscription Services; and Confidential Information of eachparty includes the terms and conditions of this Agreement and all Service Order (including without limitation pricing), as well as business andmarketingplans, technology and technical information, product plans and designs, and business processes disclosedby such party. However, Confidential Information does not includeany information that (i) is or becomesgenerally known to the public without breach ofanyobligation owed to the Disclosing Party, (ii)was known to theReceivingParty prior to its disclosureby the DisclosingParty without breach ofany obligation owed to the Disclosing Party, (iii) isreceived from a thirdpartywithout breach ofany obligation owed to the Disclosing Party, or (iv)wasindependentlydeveloped by theReceivingParty.
8.2 Protection of Confidential Information. TheReceivingPartywill use the same degree of care that it uses to protect theconfidentiality of its own confidential information oflike kind (but not less than reasonable care) (i) not to useany Confidential Information of the DisclosingPartyforany purpose outside the scope of this Agreement, and (ii)exceptas otherwiseauthorized by the DisclosingPartyin writing, to limit access to and disclosure of Confidential Information of the DisclosingPartyto those of its and its Affiliates'employees andcontractorswho need that access for purposes consistent with this Agreement and whohave signedconfidentiality agreements with theReceivingParty containing protections no less stringent than those herein. Neitherpartywill disclose the terms of this Agreement orany Service Order toanythirdparty other than its Affiliates, legal counsel and accountants without the otherparty's prior written consent,providedthat aparty thatmakes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this“Confidentiality" section.
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8.3 Compelled Disclosure. TheReceivingPartymay disclose Confidential Information of the DisclosingParty to the extent compelledby lawto doso, providedtheReceivingPartygivesthe Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the DisclosingParty'scost, if the Disclosing Party wishes to contest the disclosure. If theReceivingParty is compelledby lawto disclose the DisclosingParty'sConfidential Information as part of a civil proceeding to which the Disclosing
Partyis aparty,and the DisclosingParty is not contesting the disclosure, the DisclosingPartywill reimburse theReceivingParty for its reasonable cost of compiling andproviding secure access to that Confidential Information.
8.4 General Skills and Knowledge. Notwithstandinganything to thecontraryin this Agreement, Customer agrees that CrowdEngine is not prohibited from utilizinganyskills or knowledge of ageneral nature acquired during the course ofprovidingthe Subscription Services, including without limitation information publicly known oravailableor that could reasonably be acquired in similar work performed for another Customer of CrowdEngine.
9. | REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS |
9.1 Customer Representations, Covenants and Warranties.
(a)Customer represents andwarrants that it has obtained all material licenses, authorizations,approvals, consents or permits requiredbyApplicableLaws to conduct its business and to perform its obligations under this Agreement.(b)Customer represents,covenants andwarrantsthat the performance of its obligations and use of the Subscription Services and CustomerPortal by Customer and End Users will comply with, and will not violate,any ApplicableLaws, or regulations, including without limitationanyand alllaws and regulations of the country in which Customer chooses toprovidethe CustomerPortal/Subscription Services, including without limitationany privacy and datasecurity laws and regulations and theCAN-SPAMAct of 2003 and including without limitationby causing a breach ofanyagreements withany third parties or unreasonably interfering
with the useby other CrowdEngine Customers of CrowdEngine services.(c)Customer represents,covenantsandwarrants that: (i) Customer has all rights and interests tooperate,license, maintain,modify,and otherwise conduct business with CrowdEngine and End Users through the CustomerPortal;(ii) Customer will ensure that alltransmissionsof Customer Content to CrowdEngine areauthorized; (iii) Customer will use the Subscription Services, and will use commercially reasonable efforts to ensure End Users use the CustomerPortal,solely for legal purposes.(d)Without limitation toany otherprovisionof this Agreement and notwithstandingany other obligations Customermay have pursuant to ApplicableLaws, Customer will, consistent with industry standards and bestpractices, implement and maintain appropriateadministrative,technical andphysical safeguards to protect theconfidentialityof Customer Data, including without limitation End User Information.(e)Without limitation toanyotherprovision of this Agreement and notwithstandinganyother obligations Customermay have pursuant to ApplicableLaws,Customer represents,covenantsandwarrantsthat Customer will limit access to Customer Data, including without limitation End User Information, to those individuals whohave a “need to know" in connection with Customer's business and will obligate those individuals to acknowledge consumers' rights toprivacyand adhere to fair informationpractices. Customer acknowledges that its right to use and disclose information concerning consumer information is subject to thefederal Gramm-Leach-BlileyAct (the “GrammAct") and its implementing regulations and othercountry,federaland statelawsand regulations regardingprivacyand theconfidentialityof Customer or consumer records. Customer agrees to comply with the applicable requirements under theGrammAct (15U.S.C.section 6801 et seq.) and thePrivacySafeguardsRulepromulgatedby theFederalTrade Commission thereunder (16 C.F.R. Section 314 (together, the “GLB Act") with respect to “nonpublic personal information" (as defined under the GLB Act) itreceiveson individuals, including, without limitation, to use that information solely for the purposes of carrying out this Agreement, and implementing procedures required under the GLB Act to safeguard such information.
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9.2 Disclaimers.EXCEPT ASEXPRESSLY PROVIDED HEREIN, NEITHERPARTY MAKES ANYWARRANTYOF ANYKIND, WHETHEREXPRESS, IMPLIED,STATUTORYOROTHERWISE, AND EACHPARTYSPECIFICALLY DISCLAIMS ALL IMPLIEDWARRANTIES, INCLUDING ANY IMPLIEDWARRANTY OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE OR NON-INFRINGEMENT,TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.EXCEPT ASEXPRESSLY PROVIDED IN THIS AGREEMENT ANDTOTHE FULLEST EXTENTPERMISSIBLE BY LAW, WITHOUT LIMITING THE FOREGOING, CROWDENGINESPECIFICALLY DISCLAIMS ANYREPRESENTATIONORWARRANTY REGARDING (a)ITS NETWORK, INCLUDING WITHOUTLIMITATION ANY LIABILITY ORINDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGESCAUSED BY ANYTHIRD-PARTYHOSTING PROVIDERS; (b) THE AMOUNT OF REVENUETHAT MAY BEGENERATED;AND (c) ANY ECONOMIC OROTHER BENEFIT THAT CUSTOMER MIGHT OBTAIN THROUGH ITSPARTICIPATION IN THIS AGREEMENT. SPECIFICALLY, CROWDENGINE DISCLAIMS ANYREPRESENTATION ORWARRANTYTHAT ANY SERVICES WILL MEET ANYREQUIREMENTSOFCUSTOMER OR END USERS UNDER FEDERAL,STATEORLOCALLAWS. CROWDENGINEEXPRESSLYDISCLAIMS ANY LIABILITYTO ANY PERSON FORLOSSOR DAMAGECAUSED BY ERRORS OROMISSIONSIN THE CROWDENGINETECHNOLOGY ORSERVICES, UNLESS SUCH ERRORS OROMISSIONSRESULTFROM CROWDENGINE'SGROSS NEGLIGENCE, BUTNOTFOR ANYOTHER CAUSE.
9.3 Acknowledgment.CUSTOMER AGREES AND ACKNOWLEDGESTHATCROWDENGINE ISNOT, IN ANY MANNER, PROVIDING LEGAL SERVICES OR LEGAL ADVICETOCUSTOMER. FURTHERMORE, CUSTOMER AGREES AND ACKNOWLEDGESTHAT CROWDENGINE ISNOT AN ADVISORASTO TAX, FINANCIAL,BUSINESS,ACCOUNTING ORREGULATORYMATTERS IN ANY JURISDICTION. NONE OF THE ADVICE, GUIDANCE OR ANY SERVICES PROVIDED BY CROWDENGINE WILL BE DEEMED LEGAL,TAX,FINANCIAL ORBUSINESSADVICE.CUSTOMERISSOLELY RESPONSIBLE FORCONSULTINGWITHITS LEGAL COUNSELTO ENSURETHAT THECUSTOMERPORTALCOMPLIES WITH ALL APPLICABLELAWS.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CROWDENGINE WILL PROVIDE A COMPLIANT REG A+ SOLUTION OUT OF THEBOXBUT MAKES NOREPRESENTATION ORWARRANTIESREGARDING THECUSTOMERPORTAL'S COMPLIANCE WITH THE SECURITIESACT, THEEXCHANGEACT OR ANYOTHER APPLICABLE SECURITIES OR BLUE SKYLAWSANY FORPRIVATE PLACEMENT OR SIMILAR SECURITIES OFFERINGSASITRELATESTO ANYCUSTOMIZATION,CHANGES, MODIFICATIONS, ORALTERATIONSMADETO THEPORTAL BYCUSTOMER.
10. | MUTUAL INDEMNIFICATION |
10.1 Indemnification by Customer.
(a)Tothe fullest extent permissiblebylaw, Customer will defend,indemnifyand hold harmless CrowdEngine and its Affiliates, and theirrespective employees,officers, directors, attorneys, agents, independentcontractors, assigns andrepresentatives,(collectively, “ CrowdEngine Indemnitees"), including without limitation each individual,corporation, partnership, trust, limitedliabilitycompany,association or otherentity (each, a“Person"),if any, who controls such CrowdEngine Indemnitee within the meaning of the Securities Act of 1933, as amended (the “Securities Act", or the SecuritiesExchange Act of 1934, as amended (the“ExchangeAct"), againstany and all liabilities, claims, losses, reasonable costs and expenses, including reasonable attorneys' fees together, “Damages"), which CrowdEngine Indemnitees have incurred or may incur as a result ofanyclaim or action brought or thatmay be broughtbya thirdparty, to the extent relatingto,in connection with, or arising out of (a)anyviolation ofanyApplicableLaw by Customer; (b) the End User Information or Customer Content contained on the CustomerPortalor theadministrationofany portion of the CustomerPortal by Customer via theAdministrativeAccounts; (c)anybreachby Customer ofany representation,warranty, obligation orany other breach of this Agreement; (d)anyviolation of thirdpartyProprietary Rightsby any Customer Contentprovided by Customer or End Users hereunder; (e)anynegligent, reckless or intentional acts or omissionsby Customer oranyof Customer'semployees, agents orrepresentatives;or(f)anything published on the CustomerPortal. Customer willhave the right to select and control legal counsel for the defense ofany such claim or action and forany negotiations relating toanysuch claim or action as it applies to or against Customer. CrowdEngine will reasonably cooperate in the investigation, defense and settlement of any claim or action and willprovide prompt notice ofany such claim or action or reasonably expected claim or action to Customer. CrowdEngine will have the right, but not the obligation, to retain its own separate legal counsel at its own expense to defendany such claim or action. If Customer fails or refuses to defend or settleany claims or actions, then CrowdEngine will, upon written notice to the Customer, have the right to defend or settle (and control the defenseof)such claims oractions.(b)Toprovidefor just and equitable contribution to jointliabilityunder the Securities Act inany case in which either: (i)anyCrowdEngine Indemnitee otherwise entitled to indemnification under Section 10.1(a)makesa claim for indemnification pursuant to Section 10.1(a) but it is judicially determined(bythe entry of a final judgment or decreeby a court of competent jurisdiction and theexpiration of time to appeal or the denial of the last right of appeal) that such indemnificationmay not be enforced in such case, notwithstanding the fact that Section 10.1(a)provides for indemnification in such case, or (ii) contribution under the Securities Actmay be required on the part ofany party hereto for which indemnification isprovided under Section 10.1(a), then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which theymay be subject (after contribution from others) in such proportion as is appropriate to reflect therelative fault of each of Customer and the CrowdEngine Indemnitee in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage,liability,or expense, as well as to reflectany otherrelevantequitableconsiderations. Therelativefault of Customer and of the CrowdEngine Indemnitee will be determinedby referenceto, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information suppliedbyCustomer orby the CrowdEngine Indemnitee and the parties'relativeintent, knowledge, access to information, andopportunity to correct orpreventsuch statement or omission; provided, however, that, in any such case no Person guilty of fraudulent misrepresentation (within the meaning of Section11(f) of the Securities Act) will be entitled to contribution fromany Person whowasnot guilty of such fraudulent misrepresentation; provided, further, however, in no event will the aggregate liability for all CrowdEngine Indemnitees for contribution under this Section 10.1(b)exceed the limitation ofliabilityamount set forth in Section 11,except in the case of willful misconduct orfraud by a CrowdEngine Indemnitee.
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10.2 Indemnification by CrowdEngine. CrowdEngine will defend Customer againstanyclaim, demand, suit or proceeding made or brought against Customerby a thirdpartyalleging that the use of the Subscription Service in accordance with this Agreement infringes or misappropriates such thirdparty's intellectualpropertyrights (a “Claim Against Customer"), and willindemnify Customer fromanydamages, attorneys' fees and costs finallyawardedagainst Customer as a resultof, or for amounts paidbyCustomer under acourt-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives CrowdEngine written notice of the Claim Against Customer, (b) gives CrowdEngine sole control of the defense and settlement of the Claim Against Customer(except that CrowdEnginemaynot settleany Claim Against Customer unless it unconditionally releases Customer of allliability), and (c)gives CrowdEngine all reasonable assistance, at CrowdEngine's expense. If CrowdEnginereceives information about an infringement or misappropriation claim related to a Subscription Service, CrowdEnginemayin its discretion and at no cost to Customer (i)modify the Subscription Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer's continued use of that Subscription Service in accordance with this Agreement, or (iii) terminate Customer's subscriptions for that Subscription Service upon 30days'written notice and refund Customeranyprepaid feescoveringthe remainder of the term of the terminated subscriptions. Theabove defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer's breach of this Agreement or fromany Customer Content or Customer Data. Thisparagraphstates CrowdEngine's soleliabilityto Customer, and Customer's exclusive remedy against CrowdEngine, for anytype of claim described in thisparagraph.
11. | LIMITATION OF LIABILITY |
11.1 Limitation of Liability.EXCEPT WITH RESPECTTOEACHPARTY'SINDEMNIFICATION OBLIGATIONSUNDER THIS AGREEMENT AND EITHERPARTY'S BREACH OFITS OBLIGATIONS PURSUANTTO SECTION 8 (CONFIDENTIALITY), NEITHERPARTY'SLIABILITY WITH RESPECTTO ANY SINGLE INCIDENT ARISING OUT OF ORRELATEDTO THIS AGREEMENT WILLEXCEED THE AMOUNTPAID BYCUSTOMER HEREUNDER IN THE SIX
(6) MONTH PERIOD PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHERPARTY'SAGGREGATELIABILITY ARISING OUT OF ORRELATEDTOTHIS AGREEMENTEXCEED THETOTAL AMOUNTPAID BYCUSTOMER HEREUNDER. THIS LIMIT ISCUMULATIVE AND ALLPAYMENTS UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRECEDING THE INCIDENT WILL BEAGGREGATEDTOCALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT ORTORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVELIMITATIONS WILLNOT LIMITCUSTOMER'SPAYMENTOBLIGATIONSUNDER THE “FEES ANDPAYMENT" SECTION ABOVE.
11.2 Exclusion of Consequential and Related Damages.EXCEPT WITH RESPECTTOEACHPARTY'SINDEMNIFICATION OBLIGATIONSUNDER THIS AGREEMENT AND EITHERPARTY'S BREACH OFITS OBLIGATIONS PURSUANTTO SECTION 8 (CONFIDENTIALITY), IN NO EVENT WILL EITHERPARTYHAVE ANY LIABILITYTO THEOTHERPARTY FOR ANYLOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVEDAMAGES, WHETHER AN ACTION IS IN CONTRACT ORTORT ANDREGARDLESS OF THETHEORY OF LIABILITY, EVEN IF APARTYHAS BEEN ADVISED OF THEPOSSIBILITYOF SUCHDAMAGES. THE FOREGOING DISCLAIMER WILLNOTAPPLY TO THE EXTENT PROHIBITED BY LAW.
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12. | TERM AND TERMINATION |
12.1 Term of Agreement. This Agreement shall commence on theEffective Date and continue until all Service Orders hereunderhave expired orhavebeen terminated, or until this Agreement is terminated in accordance with its terms.
12.2 Term of Service Order.Any Service Order created under this Agreement will commence immediately uponexecution by both parties, and will continue thereafter asprovidedin the Service Order;provided,however, that notwithstanding anything to the contrary herein or in any Service Order, all existing Service Orders will also terminate upon the termination of this Agreement.
12.3 Termination for Cause. If eitherparty fails to comply withanyof the material terms and conditions of this Agreement or Service Order, including without limitation the payment of any SubscriptionFee or reimbursement due andpayableto CrowdEngine under this Agreement, the otherparty may terminate this Agreement and/orany or all Service Orders andany and all license rights upon fifteen (15)days' written notice to the defaultingparty specifying any such breach, unless within the period of such notice, all breaches specified therein willhavebeen remedied.
12.4 Termination by CrowdEngine for End of Life. CrowdEngine intends to continue toprovideand support the Subscription Services for so long as Customer renews in accordance with the applicable Service Order; provided, however, if, CrowdEngine determines in its sole discretion that it is no longer feasible to support the Subscription Services, CrowdEnginemay terminate this Agreement for end of life atanytimeby providing one hundred eighty (180) days' written notice to Customer.
12.5 Refund or Payment upon Termination. If this Agreement is terminatedby Customer in accordance with the“Termination for Cause" sectionaboveor if this Agreement is terminatedby CrowdEngine in accordance with the“Terminationby CrowdEngine for End of Life" sectionabove,CrowdEngine will refund Customer after theeffective date of terminationanyprepaid feescovering the remainder of the term of all Service Orders in effect on the date of termination. If this Agreement is terminatedby CrowdEngine in accordance with the“Termination for Cause" sectionabove,Customer willpay CrowdEngineany unpaid feescovering the remainder of the term of all Service Orders. In noeventwill terminationrelieve Customer of its obligation topay any feespayable to CrowdEngine for the period prior to theeffectivedate of termination.
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12.6 Effect of Termination. Upon the termination orexpiration of this Agreement, the CustomerPortal URL will bede-activatedand will no longer be usedby eitherparty.Upon theexpiration or termination of this Agreement foranyreason: (a) Customer will cease useof, and return to CrowdEngine,anymaterialsprovided by CrowdEngine; (b) CrowdEngine will return to Customer all End User Information, Customer Content, Customer Confidential Information andany other Customer materials then in the possession of CrowdEngine; and (c) CrowdEngine willmakeCustomer Content inaccessible and cease use of the Customer Content,provided that Customer acknowledges and agrees that: (i)removedCustomer Contentmaypersist in caches or backups for a reasonable period of time, and (ii) CrowdEngine will nothavecontrolover any Customer Content that has been copied from the CustomerPortal by End Users and reposted or redistributed to a thirdparty site(Facebook,Twitter, personal blog, etc.), and CrowdEngine will not be responsible for theremoval of such reposted and/or redistributed Customer Content on thirdpartysites.
12.7 Transition Services. If Customer is current in allpayments due to CrowdEngine at the time ofexpiration or termination this Agreement, CrowdEngine willprovideto Customer its End User Information, Customer Content andany other Customer materials in the possession of CrowdEngine in a standard database document format readilyavailableto CrowdEngine at no additional charge. If Customer requests the End User Information and Customer Content in a non-standard format, Customer willpay to CrowdEngine a reasonable fee for technical services as determinedby CrowdEngine.
12.8 Surviving Provisions.Any provision of the Agreement thatbyits express terms or nature contemplates performance orobservance subsequent to termination orexpiration of the Agreement willsurvivetermination orexpiration of the Agreement and continue in full force and effect.
13.GENERAL | PROVISIONS |
13.1 Export Compliance. The Subscription Services, other CrowdEnginetechnology, andderivatives thereofmay be subject to exportlaws and regulations of the United States and other jurisdictions. CrowdEngine and Customer each represents that it is not named onany U.S. government denied-party list. Customer will not knowingly permitany User to access or useanySubscription Service in aU.S.-embargoed country (currently Cuba,Iran,NorthKorea, Sudan orSyria) or in violation ofany U.S. exportlaw or regulation.
13.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between CrowdEngine and Customer concerning its subject matter and supersedes all prior andcontemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, orwaiver ofany provision of this Agreement will beeffective unless in writing and signedby theparty against whom the modification, amendment orwaiver is to be asserted. The parties agree thatanyterm or condition stated in a Customer quote, bid, purchase order or inany other Customer order documentation(excluding Service Order) isvoid.In theevent ofany conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Service Order, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement.
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13.3 Interpretation. The parties hereto agree that this Agreement has been negotiated jointly and constitutes an arms-length negotiation. The parties agree that this Agreement will be interpreted as ifdrafted jointlybythe parties and that noadverseinference will arise against apartynor willany provision hereof be interpreted against aparty by virtue of thatparty'sauthorship ofany provision of this Agreement.
13.4 Relationship of the Parties. The parties are independentcontractors. This Agreement does not create apartnership, franchise, jointventure,agency, fiduciary oremployment relationship between the parties.
13.5 | Third-Party Beneficiaries. There are nothird-party beneficiaries under this Agreement. |
13.6 Notices.Any notice or communication required or permitted to begivenhereundermay bedelivered by hand, deposit with anovernight courier, sentby email or facsimile (provided delivery is confirmed), orU.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as will be designated in writingby eitherpartyto the other in accordance with this Section. Such notice will be deemed to begivenwhenreceived.
13.7 Waiver. No failure ordelay by eitherpartyinexercising any right under this Agreement will constitute awaiverof that right.
13.8 Severability. Ifany provision of this Agreement is declaredinvalidor unenforceable, suchprovision will be deemed modified to the extent necessary and possible to render itvalid and enforceable. Inany event, theunenforceability orinvalidityofany provision will not affectanyotherprovision of this Agreement, and this Agreement will continue in full force and effect, and be construed and enforced, as if suchprovision had not been included, or had been modified asabove provided, as the casemaybe.
13.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whetherby operation oflawor otherwise, without the otherparty's prior written consent (not to be unreasonably withheld);provided, however, either party may assign this Agreement in its entirety (including without limitation all Service Orders), without the other party's consent to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Customer is acquiredby, sells substantially all of its assetsto, or undergoes a change of control infavorof, a direct competitor of CrowdEngine, then CrowdEnginemayterminate this Agreement upon written notice. In theevent of such a termination, CrowdEngine will refund Customeranyprepaid feescoveringthe remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, theirrespectivesuccessors and permitted assigns.
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13.10 Governing Law. This Agreement, andany disputes arising out of or relatedhereto,will begoverned exclusively by the internallawsof the State of Utah, without regard to its conflicts oflaws provisions or the United NationsConvention on the International Sale of Goods.
13.11 Venue. The state andfederal courts located in SaltLakeCity, Utah, willhave exclusive jurisdictionover any dispute relating to this Agreement, and eachpartyconsents to theexclusive jurisdiction of those courts. EACHPARTYHEREBYWAIVES ITS RIGHTTO A TRIAL BYJURY WITH RESPECTTO ANY CLAIM, ACTION OR PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATINGTO, THIS AGREEMENTTO THE FULLEST EXTENTPERMITTEDBY LAW.
13.12 Counterparts. This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original.Facsimilesignatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures.
Signedbyeachparty's authorized representative:
ServiceOrder
This Service Order(“Service Order"), dated as of12/12/2018, is entered into and made betweenCrowd Engine, Inc. (“CrowdEngine") andSecured Investment Corp(“Customer").
Both parties acknowledge that uponexecution of this Service Orderbyboth parties this Service Order will to be avalid attachment to and incorpoated in the CrowdEngine Master Services Agreement by and between
CrowdEngine and Customer dated 12.12.2018 , (the “ Service Agreement"). All other terms of the Service Agreement will remain in full force and effect.Capitalizedterms used in this Service Order and not otherwise defined willhave the same meaning as set forth in the body of the Service Agreement.
This Service Order (?Service Order"), dated as of 12/12/2018 , is entered into and made between Crowd Engine, Inc. (?CrowdEngine") and Secured Investment Corp (?Customer"). Both parties acknowledge that upon execution of this Service Order by both parties this Service Order will to be a valid attachment to and incorpoated in the CrowdEngine Master Services Agreement by and betweenCrowdEngine and Customer dated, (the ? Service Agreement"). All other terms of the Service Agreement will remain in full force and effect. Capitalized terms used in this Service Order and not otherwise defined will have the same meaning as set forth in the body of the Service Agreement.
1. Services.
1.1 Services Description. The servicesprovided will be as described onwww.crowdengine.com,and similar to the servicesprovidedatequitydemo.new.crowdengine.com, whichmaybe modified from time to time, including without limitation to includesoftware enhancements,security updates, and maintenance. Customer agrees tohavethe tagline“Powered by CrowdEngine" in a font andsizeagreed toby the parties at the bottom of the CustomerPortal.
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2. | Subscription Fees |
2.1 Setup Fee. The initial setup fee forprovisioning of the CrowdEngineTechnologyand Subscription Services for establishing the CustomerPortal will be a non-refundable fee of$3,000.00, due upon theexecution of this Service Order.
2.2 Subscription Fee. The periodic SubscriptionFee for this Service Order shall be$1,500.00 per month, plusany selected options. Other than the initialpayment,SubscriptionFees shall be automatically paidbycredit card or ACH debit and due on the 1stdayof each calendar month.Anypartial periods shall be pro-rated.TestTheWaters Special Pricing(Reg A+ only). Afteryour first full monthpaymentof $1,500,pay only $500 per month until FINRAapproves yourReg A+ offering while collectinginvestordata. First Full month payment will be due January 1, 2019. No monthly fee will be due for December.
3. Term. The initial term (“InitialTerm") of this Service Order will commence as of the date first writtenabove and continue for 6 months. After the InitialTerm this Service Order will continue on a month-to-month basis unless eitherparty notifies the other in writing not less thanthirty(30)days prior to its intention not torenew.Any discounted months shall not counttowardsthe InitialTerm commitment.
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3.1 Early Termination. If Customer terminates the Service Agreement or this Service Order or ceases to continue making SubscriptionFeepayments prior to theexpirationof the initial term forany reason other than
for material breachby CrowdEngine, then subscription fees for the remainder of the term willaccelerate and become due andpayablein a lump sum immediately upon termination.
Signedbyeachparty's authorized representative:
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Payment Authorization
Sign and complete this form toauthorize Crowd Engine Inc, tomakea charge toyour ACH account listedabove.By signing this formyou give Crowd Engine
Inc permission to debityour account for the amounts due under the Master Service Agreement and associated Service Orders.
I authorize Crowd Engine Inc. to charge the bank account via ACH in this authorization form according to the terms outlined in the executed MSA. I certify that I am an authorized user of this bank account, and that I will not dispute the payment with my bank; so long asthe transaction is consistent with the terms the Crowd Engine Master Service Agreement.
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