End User License Agreement

 

Introduction: Please read this End User License Agreement (“EULA” or “Agreement”) carefully. This Agreement governs your access to and use of the CrowdComfort Software, Services, and any Service Level Agreement as may be attached hereto,  as amended from time to time. By downloading the app or application (“Software”) and clicking “I Agree” or using the Software or Service, you agree that this EULA is binding and enforceable like any other contract signed by you, or the company you represent. If you do not agree to all of the terms of this EULA, Click on the “Do Not Agree” button, which indicates you do not accept the terms of this Agreement and you will not install or use the software. By entering into this Agreement, you represent that you have the legal capacity and authority to bind you, your company, or your employer into this Agreement.

 

  1. License to Use Services
    1. The Software and Services are licensed to you, not sold to you, as such CrowdComfort grants to you a limited, non-exclusive, non-transferable, license to use and access the Software in conjunction with the Services. You must use the Software and Services in full compliance with all applicable laws and regulations and any agreements by which you are bound. Future patches and upgrades are included as part of the Software.
  2. Rights and Ownership
    1. CrowdComfort reserves all rights not expressly granted to you in this EULA. The Software and Services are protected by patents, copyrights, and other intellectual property laws and treaties. CrowdComfort, or its licensors, own all title, interest, copyright, and other intellectual property rights in the Services and Software.  You agree that any Services or licenses provided hereunder will not be treated as a work-for-hire in any capacity, and except as specifically provided herein, no intellectual property rights shall be owned, licensed or transferred to you under this Agreement.
    2. CrowdComfort will provide you the means to enter data and content into the Software and you shall own all right, title and interest in all data created by you. CrowdComfort will have a limited right to use such data for the purpose of fulfilling its obligations and exercising its rights under this Agreement.
    3. CrowdComfort has the perpetual right to use your data in an non-identifiable aggregated way for statistical and marketing purposes generated through your use of the Software.
  3. Limitations on Use
    1. You must use the Software in full compliance with all applicable laws and regulations. You must be in compliance with all end user licenses governing the use of the Software issued by mobile application stores through which you may download the Software.
    2. You may not use any of the CrowdComfort Services in a manner that could damage, disable, overburden, or impair such Services or interfere with any other party’s use of the Services.
    3. You may not reverse engineer, decompile, or disassemble the Software. You must not remove or tamper with any copyright or notice of proprietary rights from the Software or Services.
    4. You may not modify, translate, or create derivative works based on or utilizing the Software or Services.
    5. You may not sell, sublicense, rent, lease, resell loan or otherwise transfer the Software to any third party. You may not use or provide access to the Services for the benefit of third parties.
    6. Notwithstanding anything to the contrary herein, CrowdComfort reserves the right to immediately suspend or terminate your access to the Software and Services at any time in its sole discretion, with or without notice and without incurring liability of any kind, upon your breach of this Agreement.  
  4. Term and Termination
    1. The term of this Agreement shall commence on the first time you access the Software or Service and, unless terminated earlier in accordance with the terms of this Agreement, shall continue for an Initial Term of one (1) year.  Following expiration of the Initial Term, this Agreement shall automatically be renewed for successive one (1) year periods (each, a “Renewal Term”) unless terminated earlier in accordance with this Agreement.  
    2. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving notice. If you breach this Agreement and CrowdComfort terminates this Agreement, you forfeit all payments made for use of the Software and Services.  
    3. Upon Termination of this Agreement:
      1. The License to use the Software, Services and Marks is revoked and you have no further right to access or use the Software or Services.
      2. All Schedule of Services shall terminate immediately.
      3. Each party will use commercially reasonable efforts to return or destroy any Confidential information of the other party within its possession.
  5. Pricing and Billing
    1. Pricing: We reserve the right to change prices but we will notify you in advance and pricing will not take effect until your next anniversary date. Annual price increases for any specific module will not increase more than 5% annually.
    2. Billing: You will be billed when you first access the Service. Initially and annually thereafter, you will be billed for the basic subscription and any other additional modules. You are responsible for all applicable taxes and we will charge taxes if we are required to do so.
    3. No Refunds:  You may cancel or terminate your CrowdComfort account at any time but you won’t be issued a refund unless it is legally required. You may downgrade your subscription or modules on the anniversary date of your subscription.
  6. Confidentiality
    1. Confidential Information.  Each party understands and agrees that, during any Term, it may be furnished with or otherwise have access to information that the other party considers to be confidential business and technical information, marketing plans, research, designs, plans, methods, software, apps, techniques, processes and know-how, whether tangible or intangible and whether or not stored, compiled or memorialized physically, electronically, graphically or in writing (the “Confidential Information”).  Each party agrees to secure and protect the Confidential Information of the other in a manner consistent with the maintenance of the other party’s rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event use less than reasonable care.  Neither party will sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information of the other party to third parties, except as necessary to perform its obligations under this Agreement or as expressly authorized in this Agreement.  The terms of this Agreement, but not the existence or parties thereof, shall be treated as Confidential Information.
    2. Non-confidential Information: Notwithstanding Section 6(a), Confidential Information of a party shall not include information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was rightfully known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; (iv) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party; or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the party subject to same shall provide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.

 

    1. Limited Warranty and Limitation of Liability
      1. Limited Warranty – CrowdComfort warrants that the Software will perform substantially in accordance with the accompanying documentation for a period of ninety (90) days from the date of receipt. THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 7(a) IS THE ONLY WARRANTY GIVEN BY CROWDCOMFORT WITH RESPECT TO THE SERVICES FURNISHED HEREUNDER. CROWDCOMFORT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, FREE OF DEFECTS, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE. NEITHER CROWDCOMFORT NOR ANY CROWDCOMFORT PARTNER WARRANTS THAT THE OPERATION OR OTHER USE OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.

 

  • Limitation of Liability – TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CROWDCOMFORT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF BUSINESS OR BUSINESS INTERRUPTION, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE OR SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CROWDCOMFORT OR ANY SUPPLIER, AND EVEN IF CROWDCOMFORT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE FEES PAID OR PAYABLE BY YOU TO CROWDCOMFORT WITHIN THE PAST THREE (3) MONTHS, WHETHER ARISING IN CONTRACT, TORT, OR ANY OTHER FORM OF CLAIM.

 

  1. Indemnification
    1. Non-Infringement Indemnity.  CrowdComfort shall defend any third party claim, action or proceeding (“Claim”) brought against you on grounds that the Software used to deliver the Services infringes a third party’s patent, copyright or trade secret, and shall indemnify you against all damages and costs awarded against you in any such action or proceeding. If the Services or Software become, or in CrowdComfort’s opinion are likely to become, the subject of a valid claim of infringement or the like under any patent, copyright or trade secret law, CrowdComfort shall have the right, at its option and expense, either to obtain for you a license permitting the continued use of the Services or Software, to replace or modify the Services or Software so that they become non-infringing, or to terminate this Agreement and refund to you any amounts prepaid for the post-termination period.
    2. Your Data and Use Indemnity. You shall defend any Claim brought by a third party against CrowdComfort arising from use of the your data other than by CrowdComfort, or from your use of the Software or Services in a manner that breaches this Agreement or violates law or any third party agreement, in each case to the extent that such Claim is not attributable to CrowdComfort.
    3. Conditions. The indemnification obligations in this Section 8 are conditioned upon the indemnified party (i) promptly notifying the indemnifying party of the Claim; (ii) giving the indemnifying party full authority, information and assistance to defend such Claim; and (iii) giving the indemnifying party control of the defense and compromise or settlement thereof, provided that the indemnifying party must obtain the indemnified party’s written consent, not to be unreasonably withheld, prior to entering into a settlement affecting the indemnified party’s rights
  2. Publicity
    1. Either party may use the other party’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Agreement. All such use shall be in accordance with the usage policies and guidelines of the party owning the Marks and provided in writing to the other party. All such use, and any goodwill created as a result, shall inure to the owner of the applicable Mark.  If the owner of the Marks objects to any such use or wishes to revoke its permission to use its Marks hereunder, the other party shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.
  3. Export  Restrictions
    1. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
    2. If you are an agency or contractor of the United States Government, you acknowledge and agree that (i) the Software and Services were developed entirely at private expense, (ii) the Software and Services in all respects constitute proprietary data belonging solely to CrowdComfort, (iii) the Software and Services are not in the public domain, and (iv) the Software is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212.
  4. General Provisions
    1. Assignment – This Agreement may not be assigned by either party without prior written consent, except that CrowdComfort may assign this Agreement to a successor in business (whether by merger, acquisition, sale of all or substantially all of its assets, or similar transaction) without consent.
    2. Applicable Law – This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed, and enforced in accordance with the law of the Commonwealth of Massachusetts. Any suit or proceeding relating to this Agreement, including arbitration proceedings provided the parties agree to such arbitration proceedings, shall be brought only in the state or federal courts residing in Suffolk County of the Commonwealth of Massachusetts.  EACH OF THE PARTIES CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS.
    3. Notices – All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party first set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party).  All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
    4. Modifications – Except as otherwise expressly provided herein, no provisions in your purchase orders or in any other business forms, emails or agreements employed by you and sent to CrowdComfort, will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. CrowdComfort reserves the right to modify this Agreement at any time and without notice, and by continuing use of the Software and Services, you agree to be bound by the modified terms.
    5. Entire Agreement – This EULA (including any addendum, Exhibit or amendment to this EULA which is included with the Software) is the entire agreement between you and CrowdComfort relating to the Software and Services and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software and Services or any other subject matter covered by this EULA.

 

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT BY CLICKING “I AGREE” AND/OR INSTALLING THE SOFTWARE, YOU ARE ACKNOWLEDGING YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Exhibit A

CrowdComfort Service Level Agreement

This CrowdComfort Service Level Agreement (“SLA”) governs the use of CrowdComfort’s mobile and Web application (the “App”) and Online Reporting Portal under the terms of the CrowdComfort End User Licensing Agreement between CrowdComfort, Inc. (“CrowdComfort”) and you (“Customer”). This SLA applies separately to each account using any of CrowdComfort’s solutions. Unless otherwise provided herein, this SLA is subject to the terms of CrowdComfort’s End User License Agreement. We reserve the right to change the terms of this SLA in accordance with the End User License Agreement.

Definitions  

  • Critical Issues” are defects that block the core use of the App, such as the user’s ability to report issues.
  • “Effective Date” is the date the Service.
  • Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which CrowdComfort’s services, as applicable, was Unavailable.” Monthly Uptime Percentage measurements exclude Planned Downtime (as defined below).
  • Unavailable” means:
    • CrowdComfort mobile App web-service is unavailable or inaccessible.
    • Online reporting portal is inaccessible.
  • A “Service Credit” is a dollar credit, calculated as set forth below, that we may credit back to an eligible account.

 

Capitalized terms used herein but not defined herein will have the meaning given to them in the End User License Agreement.

Service Commitment

CrowdComfort will use commercially reasonable efforts to make CrowdComfort’s web services and reporting portal available with a Monthly Uptime Percentage (excluding Planned Downtime) of at least 99.95%, during each monthly billing cycle (the “Service Commitment”).

  • CrowdComfort will use commercially reasonable efforts to resolve Critical Issues identified with the App or the reporting portal within 48 hours (where applicable and feasible).
  • In the event that CrowdComfort does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.

 

Components Covered in this SLA

  • iOS 
    • iOS Versions Supported: 
      • Current major version and one (1) previous version
    • iPhone Device Versions Supported:
      •  Current major release and one (1) previous version
  • Web-services used by the App
    • Browsers supported: 
      • Internet Explorer, Google Chrome, Mozilla Firefox, Apple Safari, including the current major release and one (1) previous version of all of the above, assuming a reasonably well working computer and sufficient uninhibited internet access (e.g., without firewall restrictions)
  • CrowdComfort’s web app and online reporting portal
    • Desktop browsers supported: 
      • Internet Explorer, Google Chrome, Mozilla Firefox, Apple Safari, including the current major release and one (1) previous version of all of the above, assuming a reasonably well working computer and sufficient uninhibited internet access (e.g., without firewall restrictions)
    • Mobile environments supported:
      • iOS Safari, provided it is running on device/OS version meeting the above requirements for iOS support
      • Android browser running on any of the current top five (5) Android devices by market share

 

Components Not Covered in this SLA

  • This SLA assumes the mobile device running the App:
    • Has reasonable connectivity to the internet; and
    • Is in fully functional condition.

 

Planned Downtime

  • Planned Downtime” refers to instances where Customer will have limited or no access to the Services as a result of scheduled or emergency maintenance or to the Services conducted by CrowdComfort or its service providers.  
  • CrowdComfort will use commercially reasonable efforts to schedule Planned Downtime at a time and in a manner that is reasonably anticipated to minimize disruptions to Customer.
  • In most cases, Planned Downtime will take place between the hours of 10:00pm and 6:00am EST.
  • CrowdComfort will use commercially reasonable efforts to provide Customer with at least five (5) business days’ prior notice before any scheduled Planned Downtime, and at least twenty-four (24) hours prior to any emergency fix.

 

Backup and Disaster Recovery

  • Data Backup: Data will be backed up every 24 hours and backups will be retained for 14 days.
  • Disaster Recovery: In the event of an infrastructure outage, all services covered by this SLA will be restored within 6 hours; if all services are not restored within such timeframe, Customer may be eligible for a Service Credit as described below.

 

Service Credits

Service Credits are calculated as a percentage of the total monthly charges paid by Customer (excluding one-time payments such as upfront payments made for implementations), and are calculated according to the schedule below:

Monthly Uptime Percentage Service Credit Percentage
Less than 99.95% but equal to or greater than 99.0% 5%
Less than 99.0% 10%

 

We will apply any Service Credits only against future payments due to CrowdComfort.  Service Credits may not be transferred or applied to any other account.

In order to receive any of the Service Credits described in this SLA, Customer must notify CrowdComfort within thirty (30) days from the conclusion of the monthly billing period in which the Customer experienced a Monthly Uptime Percentage that entitles the Customer to a Service Credit.  If an end user does not report such reduced Monthly Uptime Percentage within 30 days of the conclusion of the monthly billing period in which the reduction occurred, Customer will forfeit the right to receive a Service Credit.

The Service Credits described herein shall be Customer’s sole and exclusive remedy for any failure by CrowdComfort to fulfill its obligations under this SLA.