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Last updated: Apr 7, 2022
These Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between Speramus, Inc., the creator of Crew, and our affiliates, (“Crew”, “we”, and “us”) and the customer organization identified in the applicable Order or other agreement (“Employer” or “you”) relating to your subscription to and use of the Crew app (together with the crewapp.com website, the “Crew Platform”) and the services provided by Crew. Crew and Employer are individually referred to as a “Party” and collectively as the “Parties”.
Data Processing Terms: These terms (‘Data Processing Terms’) govern the processing by Crew of your employees’ personal data on your behalf. These terms will apply to the processing of your employees’ personal information by Crew in the course of providing you with the Services.
1.1 Scope of Services. Subject to the terms and conditions of this Agreement, Crew shall provide access to and use of the Crew Platform and other Crew development, customization, implementation and support services, as set forth in an order form or service order (“Order”), including any statement of work (“SOW”) or other agreement incorporated into the Order, as further described and defined in Schedule A (collectively, the “Services”).
1.3 Changes to Services. Crew reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Crew’s Services to its customers, the competitive strength of or market for Crew’s Services, or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
1.4 Savings Clause. Crew’s failure to perform, or delay in performing, its responsibilities under this Agreement (including any Order or SOW) shall be excused if and to the extent that Crew demonstrates that such non-performance or delay is caused by: (a) the failure of Employer or Employer personnel to perform their obligations under this Agreement; (b) any act performed or omitted by Crew or Crew personnel at the request of Employer; (c) any act performed by Employer or Employer personnel to the extent that such act was not otherwise agreed by the Parties; or (d) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of Crew systems.
1.5 Third Party Services. Crew may make certain third-party products or services available to Employer, or may make its Services available to be used by Employer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services” and materials provided therewith, the “Third-Party Materials”). If you decide to use Third-Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. Crew is not responsible or liable for the performance of any Third-Party Service and makes no representations, warranties or indemnities hereunder, notwithstanding anything contained in this Agreement. Employer’s exclusive remedy with regard to Third-Party Services will be against the applicable third party.
2.1 Access and Use. Subject to and conditioned on Employer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Crew hereby grants Employer a worldwide, non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Services during the term of the applicable Order or SOW, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement and any additional terms in the applicable Order or SOW. Such use is limited to Employer’s internal use. “Authorized User” means End Users and Enterprise Administrator(s) (i) who are authorized by Employer to access and use the Services under the rights granted to Employer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
2.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, the Crew Platform, or Third-Party Services or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Crew Platform, and Third-Party Services and Third-Party Materials are and will remain with Crew and the respective rights holders in the Third-Party Services and Third-Party Materials.
2.3 Authorization Limitations and Restrictions. Employer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services and Third-Party Materials, the applicable third-party services agreement, license agreement or terms or conditions applicable to such Third-Party Services and/or Third-Party Materials. For purposes of clarity and without limiting the generality of the foregoing, Employer shall not, except as this Agreement expressly permits:
2.4 Service Management. Employer shall, throughout the Term, maintain within its organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of Employer under this Agreement.
2.5 Employer Obligations. In addition to any other provision of this Agreement, Employer shall: (a) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Employer Materials (as defined in Section 5.2), including all Employer Data (as defined in Section 3.1); (b) timely supply Crew with all necessary information and resources including, without limitation, all files, materials, data necessary for the Services, and access to information, personnel, systems and facilities, reasonably requested by Crew (and Crew shall be entitled to rely upon any instructions, guidelines or information provided to Crew by Employer); (c) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (d) comply with all applicable laws (including laws regarding employment, privacy and protection of consumer information) in using the Service; (e) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (f) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Employer Systems, and sole responsibility for all access to and use of the Services.
2.6. Employer is Responsible for Compliance. While the Services offer tools to facilitate your labor management, Crew does not guarantee that the Services perform these tasks in a manner that is consistent with the laws applicable to your business, which can vary by region and can change at any time. Similarly, the Services may not include all features and functionality necessary to meet the federal, state, and/or local requirements applicable to your business, including but not limited to those pertaining to: employee privacy; geolocation tracking, monitoring, or messaging; protected employee speech; itemization and issuance of pay statements; overtime calculation and payment; paid sick leave accrual, pay rate, and usage increment requirements; expense reimbursement; minimum wage laws; worker authorization and minimum age laws; wage deduction laws; predictable work schedule laws; recording of work time; meal period and rest break scheduling, timing, or premiums; alternative workweek scheduling laws; minimum “show up” pay laws; data storage laws; laws pertaining to health data; and laws pertaining to the timing of pay (including final pay). Employer is solely responsible for the accurate calculation and disbursement of wages of End Users and Crew shall not be responsible for verifying, and disclaims any and all liability as to, the accuracy, timeliness and completeness of End Users’ personal, wage, timecards or any other information End Users or Employer provides or inputs via the Crew Platform.
Employer is solely responsible for compliance with all applicable laws, including federal, state, and local employment and privacy laws and Crew assumes no responsibility for assuring your compliance with applicable laws. You are responsible for determining whether the Services meet your business’ needs, and Crew is not providing any legal, financial, accounting, tax or other professional advice to you by providing the Services. You should consult federal and local government websites and/or consult with qualified counsel to help you with your compliance obligations.
2.7 Suspension or Termination of Services. Crew may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Employer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Crew receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Crew to do so; or (b) Crew believes, in its discretion, that: (i) Employer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Crew; (ii) Employer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Crew’s other rights or remedies, whether at law, in equity, or under this Agreement.
3.1 Employer Control and Responsibility. Employer has and will retain sole responsibility for: (a) all Employer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Employer or any Authorized User in connection with the Services; (c) Employer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Employer or through the use of third-party services (“Employer Systems”); (d) the security and use of Employer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Employer Systems or its or its Authorized Users’ access credentials, with or without Employer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Employer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Employer, an Authorized User, or other End User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
3.2 Access and Security. Employer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Employer Data, including the uploading or other provision of Employer Data for processing by the Services.
4.1 Fees. Employer shall pay Crew the fees and expenses set forth in the applicable Order or SOW (“Fees”). Crew reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term or then-current renewal term, upon thirty (30) days prior notice to Employer. Unless otherwise provided, all Fees are non-refundable.
4.2 Taxes. All Fees and other amounts payable by Employer under this Agreement are exclusive of taxes and similar assessments. Employer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Employer hereunder, other than any taxes imposed on Crew’s income.
4.3 Payment. Employer shall pay the Fees as set forth in the applicable Order or SOW. Unless otherwise indicated on the Order or SOW, all Fees will be due and payable prior to commencement of the Services, and all recurring monthly Fees prior to the beginning of each month of the Services term. Payment terms shall be strictly enforced, and late payments shall be assessed monthly interest at the lesser of 1.5% and the maximum rate permitted by applicable law, plus all expenses of collection. If Employer believes that Crew has billed Employer incorrectly, Employer must contact Crew no later than 60 days after receipt of the applicable invoice or billing, in order to receive an adjustment or credit. Inquiries should be directed to Crew’s Employer Support department.
4.4 Expenses. Except as otherwise agreed to in an Order or SOW, Employer agrees to reimburse Crew for all pre-approved, reasonable and necessary out-of-pocket expenses properly incurred or paid by Crew in connection with, or related to, the performance of the Services.
4.5 Late Payment. Should Employer fail to make timely payments pursuant to the Agreement, Crew may suspend further performance of any or all Services. If Employer fails to pay any due and payable amounts within 10 calendar days after receipt of Crew’s written notice that such amounts are past due, Employer shall be deemed to be in material breach of this Agreement.
5.1 Services and Crew Materials/Employer-Specific Content. All right, title and interest in and to the Crew Materials, including all Intellectual Property Rights therein, are and will remain with Crew and, with respect to Third-Party Materials included as part of Third-Party Services, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Employer has no right, license, or authorization with respect to any of the Crew Materials except as expressly set forth in this Agreement. All other rights in and to the Crew Materials are expressly reserved by Crew. “Crew Materials” means the Services, the Crew Platform, specifications, documentation, and Crew systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services, including all data collected by the Crew Platform and Services. Notwithstanding the above, Crew Materials shall not include any text, images, graphic designs, audio, video or other proprietary content provided by Employer specific to the identification of Employer (“Employer-Specific Content”). To the extent Crew obtains any rights to the Employer-Specific Content, Crew hereby assigns to Employer all right, title and interest in and to the Employer-Specific Content. To the extent Employer obtains any rights to the Crew Materials, Employer hereby assigns to Crew all right, title and interest in and to Crew Materials. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
5.2 Employer Intellectual Property License. Employer grants to Crew a limited, non-exclusive, royalty-free right and license to use the Employer Materials as necessary to fulfill Crew’s obligations under this Agreement for the purpose of providing the Services. “Employer Materials” means all content and all other information in any form or media, including but not limited to Employer Data and all other documents, data, know-how, ideas, specifications, software code and other materials, provided to Crew or through the Crew Platform by or on behalf of Employer or an Authorized User, whether or not the same: (a) are owned by Employer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights, including all trademarks, trade names, service marks, trade dress, designs, artwork and logos of Employer associated with the Services and all Employer-Specific Content. Employer further grants to Crew, on a perpetual basis, a right and license to use aggregated and de-identified Employer Data for the purposes of improving the Services.
5.3 Feedback. If Employer or any Authorized User transmits or provides any communications or materials to Crew by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or the Crew Platform (“Feedback”), Crew is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Employer hereby assigns to Crew on Employer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Crew is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Crew is not required to use any Feedback.
Employer agrees that Crew may use Employer’s business name, website URL, and logo on its websites and in its marketing materials, identifying Employer as a current or former customer of Crew.
7.1 First Level Employer Service. Crew will provide first level customer service to all Authorized Users, including without limitation, Authorized User sign-ups, cancellations, and answering general customer service questions.
7.2 Second Level Technical Support. Crew will provide second level technical support to Employer relating to technical aspects of the Crew Platform which will include in-app, email, and phone support between the hours of 9 am and 5 pm Pacific Time, Monday through Friday, except federal holidays or days on which the banks in San Francisco, California are closed for business. Crew will provide support at no cost to the Employer.
8.1 Confidential Information. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. For clarification purposes, all Crew pricing information and other terms of an Order shall be the Confidential Information of Crew. Employer acknowledges that Crew does not wish to receive any Confidential Information from Employer that is not necessary for Crew to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Crew may reasonably presume that any unrelated information received from Employer is not Confidential Information.
8.2 Non-Disclosure/Non-Use. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. Notwithstanding the above, Crew may use for development, diagnostic and corrective purposes any data and information it collects relating to the Services. Each Party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of three (3) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Receiving Party. Notwithstanding the above, the survival period for Confidential Information that qualifies as trade secrets will last as long as the information qualifies as a trade secret under applicable federal, state or local law.
9.1 Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Order or SOW (the “Term”).
9.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
9.3 Surviving Terms. Any provision or other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
10.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Additional Employer Representations, Warranties and Covenants. Employer represents, warrants and covenants to Crew that: (a) Employer owns or otherwise has and will have the necessary rights and consents in and relating to the Employer Materials, so that, as received by Crew and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Employer and the provider of Third-Party Services; and (b) Enterprise Administrators have obtained on behalf of Crew and Employer all necessary rights and consents from End Users for Crew to communicate with such End Users, including but not limited to, via SMS text messages and push notifications to the cellular telephone number of End Users in connection with such End Users’ use of the Crew app.
10.3 DISCLAIMER OF WARRANTIES. THE USE OF “CREW” IN SECTIONS 10.3 AND SECTION 11 MEANS CREW, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES AND CREW MATERIALS ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND CREW DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR CREW MATERIALS. CREW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CREW MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CREW MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET EMPLOYER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN EMPLOYER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND MATERIALS.
Employer shall indemnify, defend and hold harmless Crew and its officers, directors, employees, agents, stockholders, successors and assigns (each, a “Crew Indemnitee”) from and against any and all liability, damages, losses, and expenses (including court costs and reasonable attorneys’ fees) incurred by such Crew Indemnitee in connection with any claim, action, dispute, suit or proceeding by a third party that arises out of or relates to any: (a) Employer Materials, including any processing of Employer Materials by or on behalf of Crew in accordance with this Agreement; (b) use of any Third-Party Services or Third-Party Materials, (c) allegation of facts that, if true, would constitute Employer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Employer, any Authorized User or End User, or any third party on behalf of Employer or any Authorized User or End User, in connection with this Agreement; or (e) Employer’s violation or alleged violation of applicable law.
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL CREW OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CREW UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY EMPLOYER TO CREW IN THE 6 MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.
14.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
14.2 Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand U.S. mail or electronic mail to the address listed in the Order or SOW. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.3 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.4 Entire Agreement. This Agreement, together with the Order, SOW and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
14.5 Assignment. Neither Party may assign this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party; provided, however, that, notwithstanding the foregoing, Crew may assign this Agreement to (i) any affiliate or (ii) a third party in connection with the sale of all or substantially all of its business, assets or the Crew Platform, whether by way of merger, acquisition, consolidation, sale, transfer, operation of law or otherwise. Any purported assignment of rights in violation of this Section is void.
14.6 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement except as expressly provided herein.
14.7 Amendment and Modification; Waiver. Crew may amend these Terms of Service at any time with notice that we deem reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version.
Except as otherwise provided, no waiver or modification of this Agreement including any Order or SOW will be binding upon Crew unless agreed to by Crew in writing, and no failure or delay enforcing any right will be deemed a waiver of such right.
14.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Notwithstanding any other provision in this Agreement, under no circumstances shall class, collective, representative or consolidated actions proceed in arbitration.
14.9 Governing Law. All matters relating to the Services, the Crew Platform and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the Federal Arbitration Act, as set forth below, and California law, without giving effect to preemption principles and any choice or conflict of law provisions.
14.10a Scope, Governing Rules. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall exclusively be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies.
14.10b No Class Actions. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, COLLECTIVE ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AGAINST CREW.
14.10c Selection of Tribunal. There shall be one arbitrator (“Arbitrator”) agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms of Service are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
14.10d Authority of Tribunal, Judicial Review. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
14.10e Seat of Arbitration. Any arbitration hearing will occur in San Francisco, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference.
14.10f Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and Crew also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
The Crew Platform provides team and corporate communication, scheduling, and task management delivered via mobile and web applications.
The primary features of the Crew Platform are the:
iOS and Android mobile application and web application, allowing front-line teams to:
Command Center – a web-based administrative tool enabling:
Integrations, such as: