IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS WHICH FORM A LEGAL AGREEMENT BETWEEN YOU AND CROWDRIFF AND ITS SUCCESSORS AND ASSIGNS.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
SERVICES, LICENSE GRANT AND RESTRICTIONS
1.2. Visual Marketing Platform License Grant. Subject to the terms and conditions of this Agreement, CrowdRiff grants Customer a non-exclusive, non-transferable license to access and use the features of the Visual Marketing Platform.
1.3. API License Grant. CrowdRiff owns and operates an application programming interface that enables the integration of certain features of the Visual Marketing Platform with other websites and applications (the “CrowdRiff API”). If set out in Customer’s SaaS Order, and subject to the terms and conditions of this Agreement, CrowdRiff grants to Customer a non-exclusive, non-transferable, limited license: (i) to integrate the CrowdRiff API into Customer’s content management system and/or websites or applications (the “Customer CMS”) to enable content curation, organization of digital properties and assets, rights management and publication of UGC and/or Customer Content. The license granted herein is for personal use (if Customer is an individual subscriber) or internal business use (if Customer is a corporate entity).
1.4. Story Network Platform License Grant. CrowdRiff owns and operates a software platform (the “Story Network Platform”) through which users can create, discover, manage and distribute short form linear content consisting of video, audio, location, and/or text elements, as well as additional elements such as maps, directions, reviews, booking options, and other similar resources (collectively, “Stories”). If set out in a SaaS Order, and subject to the terms and conditions of this Agreement, CrowdRiff grants to Customer a non-exclusive, non-transferable license to access and use the features of the Story Network Platform.
1.5. Network Partners. Customer will have the limited right to make certain features of the Story Network Platform available, as further set out in the applicable SaaS Order, to certain of Customer’s tourism partners, as designated by Customer from time to time (each, a “Network Partner”). Upon request by Customer, CrowdRiff will provide user accounts and make the applicable features of the Story Network Platform and related software available to such Network Partners, provided that prior to accessing such Services, each Network Partner will be required to confirm their agreement to these Terms, as well as certain additional terms and conditions. Customer agrees that Customer will ensure that all of its Network Partners abide by the terms and conditions of this Agreement, and that Customer will be responsible for any breach of this Agreement or the additional terms agreed to by any of its Network Partners. CrowdRiff’s Network Partner terms and conditions can be found here: crowdriff.com/network-partner-terms-of-service. Customer is solely responsible for understanding the settings and controls for each of the Services and for controlling who becomes a Network Partner, as well as who becomes an individual authorized user of Customer or any Network Partner. For clarity, all use by any authorized user will be deemed to be a direct use by Customer or the applicable Network Partner (as applicable).
1.6. Restrictions. Customer shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services, the CrowdRiff API, the Visual Marketing Platform, the Story Network Platform or any component of the same or content, scripts, methodologies, code or other know-how and intellectual property made available by CrowdRiff as part of the CrowdRiff API, the Visual Marketing Platform, the Story Network Platform or the Services (collectively “CrowdRiff IP”) available to any third party, unless otherwise permitted by this Agreement. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the CrowdRiff IP except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) remove any proprietary notices, labels, or marks from the Services or CrowdRiff IP; or (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services or do the same in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.
Customer acknowledges that Customer acquires absolutely no rights or licenses to the Services or the CrowdRiff IP other than the limited right to use the Services and the CrowdRiff IP in accordance with the terms and conditions of this Agreement. All other use is strictly prohibited.
1.8. Service Limitations. CrowdRiff will not be responsible for any lost data due to server crashes or other events outside CrowdRiff’s reasonable control.
PAYMENT TERMS AND TAXES
2.1. Payment Terms. In consideration for the receipt of the Services and the licenses and other consideration granted hereunder, Customer shall pay CrowdRiff the properly invoiced and undisputed Fees specified on a SaaS Order. Fees for the Services will be invoiced annually in advance unless otherwise provided on the applicable SaaS Order. Unless otherwise stated, all undisputed payments shall be made to CrowdRiff within thirty (30) calendar days after receipt of the invoice.
2.2. Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
2.3. Overdue Payments. Any undisputed amounts properly due and not paid by the Customer by the due date will accrue late charges each month at the rate of one and a half percent (1.5%.) of the undisputed outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.4. Suspension of Services. If Customer does not pay a properly rendered and undisputed invoice within thirty (30) days of the Customer’s receipt of a written notice from CrowdRiff that the amount is overdue, in addition to any of its other rights or remedies, CrowdRiff reserves the right to suspend the Services provided to Customer, until such amounts are paid in full.
PROPRIETARY RIGHTS, CONTENT MODERATION AND PRODUCT SUGGESTIONS.
3.1. Exclusive Ownership. The Services and the CrowdRiff IP are proprietary to CrowdRiff and its licensors and are protected by copyright and other intellectual property laws. All right, title and interest, including all copyright and other intellectual property rights, in and to the Services and the CrowdRiff IP are owned by CrowdRiff or its licensors. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that any and all intellectual property rights to or arising from the software and technology used to provide the Services are and shall remain the exclusive property of CrowdRiff and its licensors. Nothing in this Agreement is intended to transfer any such intellectual property rights to, or to vest any such intellectual property rights in, Customer. Customer is only entitled to the limited use of the intellectual property rights granted to Customer in this Agreement. Customer will not take any action to jeopardize, limit or interfere with CrowdRiff’s intellectual property rights. Any unauthorized use of CrowdRiff ‘s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
3.2. Customer Content Responsibility. As between Customer and CrowdRiff, Customer owns and retains ownership of any original content (including, for clarity, any of Customer’s Stories) that Customer provides, stores and processes through any of the Services (“Customer Content”). Customer hereby grants CrowdRiff a worldwide, royalty-free, and non-exclusive license during the term of this Agreement to access Customer Content in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) to create Pattern Data. “Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Services, including but not limited to demographics data, mobility patterns, location data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the Services. For greater certainty, Pattern Data is data that does not identify a specific customer or its end users and is data which does not relate to a specific customer’s business (including data relating to a specific customer’s locations that receive the Services). Pattern Data will be owned by CrowdRiff and may be used for a variety of purposes including to improve CrowdRiff’s products and the Services. Together Sections 3.2(i) and (ii) constitute the “Content License”). Customer understands that CrowdRiff, in performing the required technical steps to provide the Services, may (a) transmit or distribute Customer Content over various public or private networks and in various media; and (b) make such changes to Customer Content as are necessary to conform and adapt that Customer Content to the technical requirements of connecting networks, devices, Services or media. Customer confirms and warrants to CrowdRiff that Customer has all the rights, power and authority necessary to grant the above Content License and that use of the Customer Content in the manner contemplated will not breach the rights of any third party.
Customer Content. Customer is responsible for any and all Customer Content and its use of UGC and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Content to be made available to CrowdRiff for CrowdRiff to transmit, host and store. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify CrowdRiff promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Services.
3.3. UGC. All third party photographs, images, materials, descriptions, content, videos, audio files, text files, information, code, or other content, trademarks, intellectual property, handles or other data (“UGC”) that is accessed by Customer through use of the Services shall be retained by the applicable third party rights holder and subject to the rights of such third party and any applicable third party terms and conditions (e.g. Facebook, Twitter, Instagram, etc.) governing the use or access to such UGC. Customer acknowledges that Crowdriff must abide by the applicable rules and regulations of the social networks from which UGC is pulled through those networks and accordingly, use and availability of content from third party social networks is subject to change at any time based on the permissions granted to CrowdRiff. Customer acknowledges and agrees that Customer shall be solely liable for the clearance and use of any such UGC in connection with Customer’s business and the Customer CMS including without limitation, any copyrights, trademarks, right of privacy or publicity or other rights and compliance with any applicable third party terms and conditions. Furthermore, Customer will be responsible for passing through all restrictions on access and use of UGC to Customer’s Network Partners and site users.
3.4. Content Disclaimers. CrowdRiff does not guarantee the accuracy, quality, appropriateness, or fitness for any purpose of any content transmitted on or through the Services, including Customer Content, UGC, or any Stories created or made available by a Network Partner through such Network Partner’s use of the Story Network Platform (“Network Partner Stories”). Customer acknowledges that the Services simply act as conduits for facilitating consumer engagement through the publication, dissemination, and making available of Customer Content, Network Partner Stories and UGC, and that all content posted on, transmitted through, or linked through the Services is the sole responsibility of the user from whom the content originated. Customer therefore acknowledges and agrees that:
- CrowdRiff does not control, and is not responsible for, content made available through the Services;
- CrowdRiff reserves the right to review and delete any content (including Customer Content, Network Partner Stories or UGC) at any time, in its sole discretion, for any reason, including without limitation, any determination by CrowdRiff in its sole judgment, that such content violates this Agreement, third party rights or any applicable laws;
- CrowdRiff has no obligation to screen, preview, censor, or alter any content;
- by using the Services, Customer may be exposed to content that is inaccurate, misleading or offensive; and
- Customer must evaluate and make Customer’s own judgment, and bear all risks associated with, the use of any content.
By using the Services, Customer agrees that it is solely Customer’s responsibility to evaluate the risks associated with the use, accuracy, usefulness, completeness, and appropriateness of the Services, and the content they may contain, or to which they may provide or facilitate access, from time to time. Under no circumstances will CrowdRiff be liable to Customer in any way for any content, including but not limited to Customer Content, Network Partner Stories or UGC, that contains any errors, omissions, defamatory statements, or confidential or private information (including personal and health information), for any loss or damage of any kind incurred as a result of the use of any content created, submitted, accessed, transmitted, or otherwise made available on, through or in association with the Services, or for the removal of any content from the Services for any reason. For clarity, and without limiting the generality of the foregoing, Customer acknowledges and agrees that the inclusion of any content on, or the making available of any content through, the Services does not imply CrowdRiff’s endorsement of such content, and that CrowdRiff does not make any claim as to the accuracy or legality of any such content.
3.5. Privacy Responsibilities. Customer shall be solely responsible for compliance with applicable data protection and privacy laws in its collection, use and storage of any personally identifiable information via the Customer CMS or other properties.
3.6. Removal of Content by Customer. Customer may remove any Customer Content or UGC from the Services at any time through the functionality provided by the Services. Customer understands and agrees that CrowdRiff may retain, but not display, distribute or perform server copies of any Customer Content or UGC that has been removed or deleted. Customer Content or UGC that may have been copied or used for a derivative work may still be visible (including without limitation any content that may have been created by other authorized users). Customer must remove all Customer Content and UGC if Customer no longer has the rights required by this Agreement. In addition, Customer acknowledges that any content made available to the public may remain available on the Internet and in third party repositories after termination or expiration of this Agreement. CrowdRiff will have no responsibility for taking down or requiring the removal by any third party of any content made available to the public as a result of Customer’s or any Network Partner’s use of the Services.
3.7. Suggestions. CrowdRiff shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services.
4.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2. Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
4.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY.
5.1. Representations, Warranties and Covenants by Each Party. Each party represents, warrants and covenants to the other party that: (i) it is an entity, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.
5.2. CrowdRiff Representations, Warranties and Covenants. CrowdRiff represents, warrants and covenants to Customer that during the Term (as defined below) it will provide the Services in a workmanlike, professional manner, at the time of initial availability to Customer, there are no known viruses or destructive code in the Crowdriff API, the Visual Marketing Platform or the Story Network Platform and the CrowdRiff IP does not, to CrowdRiff’s knowledge, infringe any third party intellectual property rights.
5.3. Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to CrowdRiff that: (a) Customer is either the owner or the authorized licensor of all Customer Content, Customer has all rights necessary to provide CrowdRiff with the Content License for use in accordance with the terms of this Agreement, and no further payments to or permissions from any third party are required in order for CrowdRiff to exercise its rights under the Content License; (b) CrowdRiff’s use of the Customer Content in accordance with the terms of this Agreement will not violate the rights of any third party, including without limitation, any trademark, trade name, patent, copyright, literary, artistic, dramatic, moral, personal, private, civil or property right, or right of privacy or publicity, or any other right of, or defame, any third party; (c) Customer’s use of UGC will not violate any applicable laws, rules or regulations, including without limitation any intellectual property, privacy and/or publicity rights and that if Customer Content is subject to third party proprietary rights, Customer has all necessary licenses, rights, consents and permissions to publish the Customer Content and grant the Content License, including permission from any persons appearing in Customer Content; and (d) Customer will not use the Services to upload, post, email or otherwise transmit or link to any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of anyone’s privacy, hateful, fraudulent, pornographic, profane, offensive, or otherwise objectionable, or that discloses personal or private matters concerning any person, restricts or inhibits any other person from using or enjoying any of the Services, expresses or implies that any statements Customer makes or actions Customer takes are endorsed by CrowdRiff or that indicates that Customer or any of its authorized users is an employee or representative of CrowdRiff, or may expose CrowdRiff or any of its other customers or users to any harm or liability of any type. Without limiting the generality of the foregoing, Customer represents, warrants and covenants that Customer will use the Services and the CrowdRiff IP for lawful purposes only and in a manner consistent with all applicable local, provincial, state, national or international laws, rules and regulations including all intellectual property laws applicable to Customer Content and use of UGC. CrowdRiff’s Copyright Policy can be found here: crowdriff.com/copyright.
5.4. Release. Customer hereby releases, discharges and agrees to hold CrowdRiff, and any person acting on its behalf, harmless from any liability related in any way to Customer’s use or distribution of Customer Content or UGC.
5.5. DISCLAIMER OF IMPLIED WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE CROWDRIFF IP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, AND CROWDRIFF, ITS LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES, ARE ACCURATE, OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CROWDRIFF IS NOT RESPONSIBLE FOR ANY ERRORS IN THE CONTENT DELIVERED USING THE CROWDRIFF IP OR SERVICES. CUSTOMER ACKNOWLEDGES THAT CROWDRIFF HAS NO CONTROL OVER UGC OR THIRD PARTY SITES. THE USE OR PERFORMANCE OF THE SERVICES OR UGC IS AT CUSTOMER’S OWN RISK AND AT THE RISK OF ANY USERS.
TERM AND TERMINATION
6.1. Term. The term of this Agreement (the “Term”) will commence on the date specified in the initial SaaS Order between CrowdRiff and Customer, and will continue for the period of time set out in such SaaS Order (or such later date set out in any subsequent SaaS Order). The Term will automatically renew for subsequent periods of time equal to the initial term, unless either party notifies the other party in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
6.2. Termination for Cause. Either party may terminate this Agreement upon thirty (30) days’ notice (or immediately on written notice in the case of nonpayment by Customer), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3. Effect of Termination. Upon any termination, CrowdRiff will make all Customer Content available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter CrowdRiff may, but is not obligated to, delete stored Customer Content. After the data retrieval period, Customer shall not access the Visual Marketing Platform or the Story Network Platform or continue to make calls to the CrowdRiff API.
6.4. Survival. All sections of this Agreement which by their nature should survive termination or expiration will survive such termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
7.1. Updates to Agreement. CrowdRiff reserves the right to modify this Agreement at any time by publishing the revised Agreement on the website through which the Services are made available and/or providing a copy of this Agreement to Customer’s account by email. The revised Agreement shall become effective within ten (10) business days of such publication or provision to Customer, unless Customer expressly accepts the revised Agreement earlier by clicking on the accept button. Customer’s express acceptance or Customer’s continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Customer’s acceptance to be bound by the terms and conditions of the revised Agreement.
7.2. Changes to CrowdRiff Technology. CrowdRiff may alter, update or upgrade the Visual Marketing Platform, the Story Network Platform, the CrowdRiff API, and other components from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
7.3. Changes to Services. CrowdRiff may change the Services and/or other aspects of any of the Services at any time upon reasonable notice to Customer by posting the change on the website through which the Services are made available, sending notice via an email to the email address Customer provides on registration, a message on Customer’s invoice, in writing, or any other notice method likely to come to Customer’s attention. Customer’s continued access to and use of the Services after the change has come into effect constitutes Customer’s acceptance of the change and Customer acknowledges and agrees that (i) Customer will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Customer will continue to be responsible to pay for the Services, subject to Section 6.2 above.
7.4. Changes to Fees. CrowdRiff may change the fees for the Services from time to time which fee change will take effect from the next billing cycle.
SUPPORT AND MAINTENANCE
8.1. Technical Support. CrowdRiff will provide basic support for the Services and will (i) use commercially reasonable efforts to make the Services available except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond CrowdRiff’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CrowdRiff employees), or Internet Services provider failures or delays, and (ii) provide the Services only in accordance with applicable laws and government regulations.
8.2. Maintenance Services. CrowdRiff will provide updates and upgrades to the technology underlying the Services from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Services.
8.3. Professional Services. One-off consulting and professional services may be requested and agreed with CrowdRiff, including customized features and assistance with custom-website builds. All professional services shall be defined in a statement of work. If any work product or deliverables are generated through the provision of professional services under this Agreement (“Deliverables“), the parties will determine ownership of such Deliverables in the SaaS Order executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to the CrowdRiff IP or the Services will be owned by and vest in CrowdRiff exclusively including all right, title and interest in and to all Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
9.1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER CROWDRIFF NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY (WHETHER ARISING FROM THIS AGREEMENT OR RELATED TO THE SERVICES OR THE CROWDRIFF IP) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF CROWDRIFF (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE; AND (B) IN NO EVENT SHALL CROWDRIFF’S (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES AND THE CROWDRIFF IP, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CROWDRIFF HEREUNDER FOR THE SERVICES COMPONENT(S) GIVING RISE TO THE APPLICABLE CLAIM IN THE 12 MONTH PERIOD PRECEDING SUCH CLAIM.
9.2. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH.
9.3. THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER CROWDRIFF NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER’S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
10.1. Customer Indemnity. Customer agrees on demand to indemnify, defend and hold CrowdRiff, its affiliates and CrowdRiff personnel harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Customer’s (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) misuse of the Services including commercialization or use of UGC outside the permissions granted by the social network for such content.
CrowdRiff is committed to delivering Services for you to manage all your visuals in one place, whether that be photos or videos. We have developed this Data Usage Policy to ensure that all customers get an optimal level of service.
11.1. Video Storage. If purchased, we offer unlimited video storage as part of your CrowdRiff license so that you can focus on running your business. Video storage is unlimited as long as you only upload videos that are used to run your business. Examples of behaviours that fall outside this Data Usage Policy include:
- Uploading videos that are for entertainment, such as movies
- Uploading the exact same video many times
- Uploading videos that belong to other organizations
In the event that we detect such behaviours, we will notify you by email so that you can remove certain videos that violate this Data Usage Policy. In the event that you do not take action within 10 business days of the email notification, we reserve the right to disable your upload functionality, and/or remove certain videos from your library.
11.2. Video Bandwidth. The videos that you have stored via the Services can be viewed in your library or shared via a sharing portal. These activities consume bandwidth. Each month, 200 GB of bandwidth is included in your CrowdRiff license. In the event that your monthly bandwidth limit is exceeded, we will notify you by email so that you can either i) remove certain videos from your online properties or ii) upgrade your CrowdRiff license to get a higher bandwidth limit. We will work with you closely to select the option that best fits your business needs. In the event that neither option is chosen within 10 business days of the email notification, we reserve the right to remove certain videos from your library at our discretion.
12.1. Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
12.2. Prohibited Use. Use of the Services is unauthorized in any jurisdiction where the Services or any of the Customer Content or UGC may violate any laws or regulations. Customer agrees not to access or use the Services in such jurisdictions. Customer agrees that Customer is responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of this Agreement) is entirely at Customer’s own risk.
12.3. Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
12.4. Publicity. Customer hereby grants to CrowdRiff and its affiliates the right to use, reproduce, and display Customer’s name, trademarks, brands and/or logos, in CrowdRiff’s professional portfolios, public and other presentations, websites, social media channels, contributor lists, and customer lists, for the purpose of promoting CrowdRiff’s business and professional activities. For clarity, this licence includes the right to list Customer as a current or past customer of CrowdRiff.
12.5. Severability & Waiver. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If CrowdRiff does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
12.6. Assignment. Customer is not allowed to assign this Agreement or any rights hereunder without the prior written consent of CrowdRiff, such consent not to be unreasonably withheld. CrowdRiff is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
12.7. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws provisions that would require the application of the laws of a different jurisdiction, whether contained in Canadian law or the laws of Customer’s current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.8. Entire Agreement. The terms and conditions of this Agreement, together with any documents or terms incorporated herein by reference, constitute the entire agreement between Customer and CrowdRiff with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
Last Updated: August 5, 2020