Terms of Service

1.  DEFINITIONS. Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in this Section 1.

1.1  Access Tools” will mean the Web Interface, Application Client, Mobile Applications, APIs, and other tools that Company may make available to Customer and/or its Users to access and use the Application Service

1.2  “Agreement” means collectively these SaaS Terms, the Order Form, and, if applicable the Professional Services Addendum.

1.3 APIs” means those application programming interfaces that Company may make available to Customer and/or its Users to allow Customer and/or its Users to access and use the Application Service

1.4 Application Client” will mean the installable software client through which Customer may integrate its offering with the Application Service in accordance with the terms of this Agreement.

1.5Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, (“functionality”) whether such functionality is provided in a scheduled release which materials are designed to facilitate use of the Application Service and which are provided by Company to Customer in accordance with the terms of this Agreement.  

1.6 Application IP” will mean the Access Tools, the Application Service, the Application Documentation, and any and all intellectual property provided to Customer (and/or any applicable Users) in connection with the foregoing. 

1.7 Application Service” will mean the Engagifi platform set forth and described on the Order Form, including the features and modules set forth therein. 

1.8Authorized End User” shall mean, collectively, any individual employees, agents, or contractors of Customer accessing or using the Application Service through the Application Client, under the rights granted to Customer pursuant to this Agreement; and through the Web Interface, under the rights granted to Customer pursuant to this Agreement.  

1.9  Company” means Crescerance, Inc.

1.10 Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.  Without limiting the foregoing, for purposes of this Agreement, the Application Documentation and APIs will be deemed Confidential Information of Company.

1.11 Customer” means the entity executing the Order Form incorporating and subject to these SaaS Terms.

1.12 Customer Content” will mean the data, information and content provided by Customer and/or its Users in connection with the Application Service.

1.13 End User” shall mean, collectively, any customers of Customer accessing the Application Service under the rights granted to Customer pursuant to this Agreement. 

1.14 Mobile Application” will mean any mobile application(s) that Company may make available to Customer and/or its Users may access the Application Service in accordance with the terms of this Agreement.

1.15 “Order Form” will mean the signed cover page, proposal, statement of work, or other document to which these SaaS Terms are attached or which references and incorporates these SaaS Terms (either for new Customer or Customers amending or renewing prior agreements) or, if the Customer is executing the Order Form online, the webpage where the Customer has provided the applicable information and agreed to these SaaS Terms.

1.16 Professional Services Addendum” means the addendum, which may be attached or incorporated into the Agreement which set forth the terms and conditions applicable to professional services provided by Company to Customer. 

1.16 SaaS Terms” means these terms and conditions, which together with the Order Form and all attached addenda (including but not limited to the Professional Services Addendum, if applicable) govern the Customer’s (and its Users’) use of the Application Service.

1.17 Users” shall mean collectively the End Users and the Authorized End Users.

1.18Web Interface” will mean the website or websites through which Users may access the Application Service in accordance with the terms of this Agreement.

2.  ACCESS AND USE.  

2.1  Provision of Access.  Subject to the terms and conditions contained in the Agreement, Company hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Application Service during the Term, solely for use by Users in accordance with the terms and conditions herein.  Such use shall be limited to use of the Application Service for the benefit of, or in relation to, the operation of Customer’s business. As soon as reasonably practicable after configuration of the application Company shall provide to Customer the necessary user names and passwords to allow Customer to access the Application Service (the “Access Protocols”).  Company shall also provide Customer the Application Documentation to be used by Customer in accessing and using the Application Service.  Customer acknowledges and agrees that, as between Customer and Company, Customer shall be responsible for all acts and omissions of Users, and any act or omission by an User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.  Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service, and shall cause Authorized End Users to comply with such provisions. 

2.2  Access Tools.  Except as otherwise set forth in this Section 2.2, the Access Tools shall be deemed part of the Application Service for purposes of this Agreement, subject to the disclaimers set forth herein.  Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, right and license, during the Term, to utilize the Access Tools, including within applications distributed or otherwise published by Customer, solely for purposes of accessing and utilizing the features and functions of the Application Service.  If the Access Tools are distributed by Customer, it will be solely as embedded with Company’s own applications and solely on terms at least as protective of Company and the Access Tools as the terms of this Agreement.  

2.3  Application Documentation License.  Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable right and license to use the Application Documentation during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated herein.

2.4  Usage Restrictions.  Customer will not, and will not permit any Users to, (i) copy or duplicate any of the Application IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Company; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2, except for the sublicense right expressly granted in Section 2.2.  Customer will not use any of the Application IP except in compliance with Company’s obligations to any third party with respect thereto incurred prior to the Effective Date, provided that Company has notified Customer of such obligations. Customer will ensure that its use of any of the Application IP complies with all applicable laws, statutes, regulations or rules, including any export and import requirements and will not use or compile any of the Application IP for the purpose of any illegal activities. Customer will further comply with any documentation or written requirements provided by Company to Customer, and any best practices and industry specifications when using the Application Service.  

2.5  Retained Rights; Ownership.  As between the Parties, subject to the rights granted in this Agreement, Company and its licensors retain all right, title and interest in and to the Application IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Company retains the right to use the foregoing for any purpose in Company’s sole discretion.

2.6  Suspension.  Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any User’s access to any portion or all of the Application IP if (i) Company reasonably determines that (a) there is a threat or attack on any of the Application IP; (b) Customer’s or any User’s use of the Application IP disrupts or poses a security risk to the Application IP or any other customer or vendor of Company; (c) Customer or any User is/are using the Application IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; or (e) Company’s provision of the Application Service to Customer or any User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third party services or products required to enable Customer to access the Application IP  (each such suspension, in accordance with this Section 2.6, a “Service Suspension”). Company will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices sent to Company’s registered email address) and to provide updates regarding resumption of access to the Application IP following any Service Suspension. Company will use commercially reasonable efforts to resume providing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any User may incur as a result of a Service Suspension.  

2.7  Support Services. Customer will receive support services as described in the maintenance and support addendum. Customer may purchase premium levels of support as described and subject to the payment of fees set forth on such addendum. Company shall not be obligated to provide support in excess of those maintenance and support obligations set forth in the applicable maintenance and support addendum. 

3.  CUSTOMER OBLIGATIONS.

3.1  User Access to Services.  Subject to the terms and conditions herein, Customer may permit any User to access and use the features and functions of the Application Service.  Customer will ensure that any such Authorized End User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Company’s Confidential Information and the Application IP as are provided by the terms hereof. In addition to the foregoing, Company may require any User, including without limitation any Authorized End Users, to accept an end user license agreement (“EULA”) prior to accessing or using the Application Service or the Access Tools. Such EULA may contain terms in addition to the terms contained herein. 

3.2  Assistance to Company.  Customer will, at its own expense, provide assistance to Company, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Company to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3. 

3.3  Data.  To the extent that Customer and any Authorized End User, through or in connection with use of the Application IP, collect, use, store and disclose data from any other party, Customer and/or each Authorized End User shall accurately and adequately disclose, either through a privacy policy or otherwise, how Customer and/or each such Authorized End User collects, uses, stores and discloses data, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.

3.4  Customer Content.  Company acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides or otherwise permits access to Company through the Application Service and Customer grants to Company a non-exclusive license during the Term of the Agreement to use such Customer Content solely in connection with the provision of the Application Service to Customer.  Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Company, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Company or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.  Customer acknowledges that Company may, in its discretion, archive Customer Content that is two (2) or more years old such that this archived Customer Content is not readily accessible through the Application Service.

4.  FEES AND EXPENSES; PAYMENTS.

4.1  Fees. In consideration for the rights granted to Customer and the performance of Company’s obligations under this Agreement, Customer shall pay to Company, without offset or deduction, certain fees, in such amounts as may be determined by reference to the Order Form(the “Fees”).  Unless otherwise provided in a schedule or in the Order Form, all such fees shall be due and payable within ten (10) calendar days after an invoice is issued by Company with respect thereto. All Fees shall be non-refundable. Company may adjust the Fees at its election after the Initial Term of this Agreement and upon each renewal thereafter. Customer will be responsible for checking the fees then applicable to the Application Services at the website made available at www.engagifii.com(the “Fee Site”). Upon each renewal, unless the Fees have otherwise been agreed to by the parties in writing, the Fees payable by Customer for such Renewal Term will be those set forth on the Fee Site at the time of renewal. 

4.2  Customer Operating Expenses. Customer will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Customer and/or any User of the Application Service, and/or through provision of support to Users with respect to such use of the Application Service.

4.3  Taxes.  Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Company’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services.  Customer will make all required payments to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Company will be Customer’s sole responsibility, and Customer will, upon Company’s request, provide Company with official receipts issued by the appropriate taxing authorities, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

4.4  Late Payments; Interest.  Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

5.  TREATMENT OF CONFIDENTIAL INFORMATION.

5.1  Ownership of Confidential Information.  The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

5.2  Mutual Confidentiality Obligations.  Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 9.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Customer agrees that Company may collect aggregated statistical data regarding Customer’s use of the Application Service and provide such aggregated statistical data to third parties. In no event shall Company provide to third parties specific data regarding Customer or Customer’s Users.

5.3  Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. 

5.4  Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, Company may monitor Customer’s use of the Application Service and use data and information related to such use, and Customer Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Application Service (“Aggregated Statistics”).  As between Company and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Company.  Customer acknowledges that Company will be compiling Aggregated Statistics based on Customer Content input into the Application Service and Customer agrees that Company may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.  

6.  REPRESENTATIONS AND WARRANTIES.  

6.1  Mutual Representations.  Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

7.  DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

7.1  Disclaimer.  EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY COMPANY ARE PROVIDED “AS IS,” AND COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.  COMPANY, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE APPLICATION IP, INCLUDLING THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY COMPANY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

7.2  Exclusions of Remedies; Limitation of Liability.  EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF COMPANY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO COMPANY BY CUSTOMER UNDER SECTION 4.1 DURING THE SIX (6)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.3  Essential Basis of the Agreement.  Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8.  INDEMNIFICATION.

8.1  Indemnification of Customer.  Company agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Application Service and/or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of the United States of America, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to enable it to continue to use the Application Service or the Application Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Company determines that none of these alternatives is reasonably available, Customer shall, upon written request from Company, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 8.1 shall not apply to the extent that the alleged infringement arises from (i) modification of any of the Application IP by Customer, (ii) combination, operation or use of any of the Application IP with other software, hardware or technology not provided by Company, (iii) use of a superseded or altered release of any of the Application IP, if such infringement would have been avoided by the use of a then-current release of the Application IP, as applicable, and if such then-current release has been made available to Customer, (iv) any Customer Content, or (v) any applications owned or otherwise distributed by Customer (any of the foregoing circumstances under clauses (i), (ii), (iii), or (iv) a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL COMPANY’S LIABILITY UNDER THIS SECTION 8 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 7.2 ABOVE.  THIS SECTION STATES COMPANY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

8.2  Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Company’s option, defend Company from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s or any Authorized End User’s negligence or willful misconduct; (ii) Customer’s or any User’s use of the Application IP in a manner not authorized or contemplated by this Agreement; or (iii) a Customer Indemnity Responsibility, provided that Customer will not settle any third-party claim against Company unless such settlement completely and forever releases Company from all liability with respect to such claim or unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

9.  TERM AND TERMINATION.

9.1 Introductory Terms. If provided on the Order Form, Customer may be able to access the Application Service on a trial basis for a Trial Term as set forth on the Order Form, subject to the payment of any applicable Fees. If Customer provides written notice to Company at least sixty (60) days prior to the end of the Trial Term, Customer may terminate this Agreement prior to the commencement of the Initial Term. If provided on the Order Form, Customer may be able to access certain features of functionality of the Application Service during an Onboarding Term (together with the Trial Term, the “Introductory Terms”) while other features and functionality are still being configured as set forth therein, subject to the payment of any applicable Fees, if any. Following completion of the Introductory Terms as set forth on the Order Form (and failing termination prior to the end of the Trial Term as set forth above)., this Agreement shall rollover to the Initial Term and Customer shall be obligated to pay the Fees applicable to such Initial Term. THE COMPANY SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF OR ACCESS TO THE APPLICATION SERVICE DURING THE INTRODUCTORY TERMS. 

9.2  Term.  The term of this Agreement will commence on the Effective Date and will continue for the period set forth on the Order Form (the “Initial Term” and any Introductory Terms, if applicable), unless earlier terminated in accordance with this Section 9, and will automatically renew for successive terms equal in length to the Initial Term, unless either Party provides written notice of its desire not to renew at least ninety (90) days prior to the expiration of the then-current term (each, a “Renewal Term” and together with the Initial Term collectively, the “Term”).     

9.3  Termination for Breach.  Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches within twenty-five (25) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such twenty-five (25)-day period.  Notwithstanding the foregoing, nothing in this Section 9.2 shall limit Company’s rights to suspend Customer’s access to the Application Service in accordance with Section 2.6 above. 

9.4  Effect of Termination.  Upon any termination of this Agreement, Customer will  immediately discontinue all use of the Application Service, the Application Documentation, and any Company Confidential Information and both Parties will delete any of the other Party’s Confidential Information from  computer storage or any other media including, but not limited to, online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of the Application Documentation and any Confidential Information then in the other Party’s possession; and (iv) promptly pay to Company all amounts due and payable to the other Party hereunder. Customer shall have the right for up to sixty (60) days following the Termination of this Agreement to export Customer Content, only to the extent Customer has paid all amounts applicable for the then-current Term.

9.5  Survival.  The provisions of Sections 2.5, 3.4, 5, 7, 8, 9.4, 9.5 and 10 will survive the termination of this Agreement.

10.  MISCELLANEOUS.

10.1  Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.

10.2  Independent Contractors.  In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

10.3  Notices.  All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, to the address set forth on the Order Form, and if to Company, as follows:

 

If to Company: Crescerance, Inc.

4800-H South Cobb Drive, Suite 153

Smyrna GA 30080

Attention: Legal

 

or addressed to such other address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notices shall be effective on the date indicated in such confirmation. In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.

10.4  Amendments; Modifications.  Except as set forth in this Section 10.4, this Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties. Company may modify these SaaS Terms by updating the SaaS Terms found at the website located at www.engagifii.com/terms-of-service/ (the “Term Site”), with such changes only applicable to Renewal Terms. Customer will be responsible for checking the SaaS Terms then applicable to the Application Services at the Term Site. Upon each renewal, the SaaS Terms applicable for such Renewal Term will be those set forth on the Term Site at the time of renewal.

10.5  Assignment; Delegation.  Neither Party shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party , and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.  Notwithstanding the foregoing, Company may assign this Agreement, without consent, in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.

10.6  No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.7  Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.8  Waiver.  No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

10.9  Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

10.10 Reference.  Company may issue a press release announcing Customer as a customer of the Application Service, subject to Customer’s written approval. Company may list Customer as such at its corporate Website at http://www.crescerance.com. Company may create a white paper on Customer’s use case subject to Customer’s written approval.

10.11  Governing Law.  THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.  FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN ATLANTA, GEORGIA.

10.12  U.S. Government End-Users.  Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.

10.13  Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

10.14  Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

 

[End of SaaS Terms]