BACKGROUND AND PURPOSE

CREW CMS’s powerful content management and hosting platform empowers business teams to manage and create engaging and intelligent content experiences for commercial property buildings. Organisations use CREW CMS to highlight and promote their properties of distinction.

The purpose of this Agreement is to define the terms and conditions under which CREW CMS, Inc, and Canadian Federal Corporation with registered office in Toronto, Ontario, Canada, hereinafter referred to as “CREW CMS”, shall provide the Service(s) and potential Professional Services to the Customer (hereafter referred to as “Customer”) in exchange for payment for the services. All agreements between CREW CMS and the Customer are subject to these terms and conditions (hereinafter referred to as “Agreement”).

1. DEFINITIONS

Unless otherwise defined herein, all capitalised terms used within this Agreement have the following meaning:

1.1. “Active Use” refers to data stored within the Service under a current Order Form or within three (3) months of the expiration of the most recent Order Form.

1.2. “Acceptable Use Policy” refers to the CREW CMS Acceptable Use Policy (AUP), updated from time to time, and available at AUP (https://www.CREW CMS.com/acceptable-use-policy-2021-01-01).

1.3. “Add-On” means integrations, applications, and other add-ons that are used with the Service(s).

1.4. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a Party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity. For CREW CMS, Affiliate(s) shall also include the subcontractors referenced in Section 20.4 (Subcontractors).

1.5. “Aggregate/Anonymous Data” means (i) data generated by aggregating Customer Data so that results are non-personally identifiable with respect to the Customer or any natural person; and (ii) learnings, logs, and data regarding the use of the Service(s).

1.6. “Authorised Users” means the Customer’s employees and contractors (such as Agencies or management consultants) who have or may be assigned a Seat to access and use the Service and who are acting for the Customer’s benefit and on its behalf.

1.7. “Confidential Information” means information that is owned or possessed by a Party, its Affiliates or Personnel that either is marked as “confidential” or “proprietary” or otherwise due to its nature reasonably would be deemed to be confidential, and that is disclosed or accessed pursuant to this Agreement.

1.8. “Content” means text, images, videos, or other content uploaded or integrated with the Service by Customer.

1.9. “Agreement” means this subscription Agreement document and its annexes, appendices, schedules, and amendments, including any Order Forms and service-specific terms as well as any policies or exhibits linked to or referenced herein.

1.10. “Customer” means a company with a current agreement with CREW CMS for the purchase of Service(s) or a user of a free trial version of CREW CMS.

1.11. “Customer Data” means: (i) Content; (ii) Submitted Data; and (iii) Visitor Data.

1.12. “Customer’s Administrators” means the Authorised Users that have been provided with administrator permissions within the Service(s). Customer’s Administrators have broader user permissions to the Service than regular Authorised Users.

1.13. “Personnel” means employees, agents, consultants, contractors, and subcontractors, together with the personnel of any of the foregoing.

1.14. “DPA” means the CREW CMS Data Processing Agreement, including, to the extent applicable, the Standard Contractual Clauses (Controller – Processor).

1.15. “Documentation” means the technical documentation created and provided by CREW CMS in connection with the Service.

1.16. “CREW CMS Technology” means the Service and any and all related or underlying Intellectual Property Rights, Documentation, technology, code, know-how, logos and templates (including any reports or output obtained from the Service(s)), anything delivered as part of customer support or other services, and any updates, modifications or derivative works of any of the foregoing.

1.17. “Intellectual Property Rights” mean copyrights, software, domain names, trademarks, service marks, designs and registrations and applications thereof, data, and Documentation thereof, trade secrets, and know-how (including but not limited to development information, specifications, plans, proposals, and technical data).

1.18. “Service(s)” means the specific proprietary Software as a Services (SaaS) product(s) of CREW CMS specified in the Customer’s Order Form, including any related CREW CMS Documentation, and excluding any Third-Party Products. The Service(s) include access to the features and functionalities made available by CREW CMS from time to time.

1.19. “Service Level Agreement” means the CREW CMS Service Level Agreement (SLA), updated from time to time, and available at SLA (https://www.CREW CMS.com/service-level-agreement-2021-01-01).

1.20. “Support Services” means technical support services offered by CREW CMS for the Service(s) specified in the Order Form, Order Form exhibit, or other document referencing this Agreement.

1.21. “Order Form” means any CREW CMS ordering Documentation or online sign-up or subscription flow that references this Agreement.

1.22. “Party” means CREW CMS or Customer. “Parties” mean CREW CMS and Customer.

1.23. “Professional Services” means any non-subscription paid Services specified in an Order Form, Order Form exhibit, or other document referencing this Agreement. Professional Services can include onboarding, implementation, training, design, and consulting services offered by CREW CMS.

1.24. “CREW CMS Doc(s)” means Content assets that are created and published using CREW CMS Service(s).

1.25. “Scope of Use” means the usage limits or other scope of use descriptions for the Service included in the applicable Order Form (including descriptions of packages and features) or Documentation, including any numerical limits on Seats/Authorised Users, CREW CMS Docs, or Teams.

1.26. “Submitted Data” means data uploaded or otherwise submitted by the Customer to the Service, including Third-Party Content.

1.27. “Subscription Term” means the initial term for the subscription to the applicable Service, as specified on the Customer’s Order Form(s), and each subsequent renewal term (if any).

1.28. “Seat(s)” or “Account(s)” means each individual user account granting access to the Service as assigned or assignable by the Customer’s Administrator via the users panel within the Service(s).

1.29. “Teams” means departments or business units that work independently from each other within a single CREW CMS Account using CREW CMS’s Team structure.

1.30. “Third-Party” means any party that is not the Customer, CREW CMS, an Affiliate of the Customer, or CREW CMS subcontractor.

1.31. “Third-Party Content” means content, data or other materials that the Customer submits to the Service(s) from its Third-Party data providers, including through Add-Ons used by the Customer.

1.32. “Third-Party Product(s)” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by CREW CMS.

1.33. “User Data” is the data collected from a user when they use the CREW CMS Service(s), including IP address, browser information, and/or header information.

1.34. “Visitor Data” is the data collected from a reader when accessing a CREW CMS Doc(s), including IP address, browser information, and/or header information.

Other terms are defined in other sections of this Agreement or in the relevant policies, or annexes.

2. PARTS OF THIS AGREEMENT

2.1. Incorporated documents – This Agreement consists of the following documents, some listed as Annexes to this Agreement, others as hyperlinks, which are hereby incorporated by reference:

2.1.1. Each executed Order Form (Above)

2.1.2. Data Processing Agreement (“DPA”) – (https://www.CREW CMS.com/hubfs/pdf/CREW CMS-bv-dpa.pdf)

2.1.3. Acceptable Use Policy (“AUP”) – (https://www.CREW CMS.com/acceptable-use-policy-2021-01-01)

2.1.4. Service Level Agreement (“SLA”) – (https://www.CREW CMS.com/service-level-agreement-2021-01-01)

3. ACCOUNT REGISTRATION AND USE

3.1. Account Information – All account information provided by the Customer must be accurate, current, and complete.

3.2. Credentials – The Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the Service are kept strictly confidential and not shared with any unauthorised person. Email addresses cannot be generic and must be attached to an individual. The Customer must notify CREW CMS immediately of any breach of security or unauthorised use of an account which the Customer has become aware of. Accounts are personal and must not be shared with others. If any Authorised User stops working for the Customer, the Customer must immediately terminate that person’s access to the Service. The Customer shall be responsible for any and all actions taken using the accounts, passwords, or access credentials designated to the Customer.

3.3. Authorised Administrator Access – The Customer is responsible for designating those individuals who are authorised to access the Customer’s Administrators’ account(s).

3.4. Fair Use – CREW CMS wants to ensure optimal user experience for all Customers. To ensure this CREW CMS may, therefore, take the measure set out in the Acceptable Use Policy (currently available at https://www.CREW CMS.com/acceptable-use-policy-2021-01-01) in the event it establishes additional usage as defined in the Acceptable Use Policy.

4. ACCESS TO THE SERVICE

4.1. General Conditions – Subject to the compliance with this Agreement, CREW CMS grants to the Authorised Users of the Customer, non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to access and use the Service(s) designated on the Customer’s Order Form. The Service(s) may be used solely by the Customers. Use by Third-Parties is not permitted unless otherwise agreed. For the avoidance of doubt, the Customers shall be responsible and liable for all Authorised Users’ use and access to the Service and their compliance with the terms and conditions of this Agreement and CREW CMS’s policies.

4.2. Developments – The Customer acknowledges that the Service constantly develops and evolves over time. Consequently, CREW CMS may, at its option, make updates, bug fixes, modifications or improvements to the Service from time to time. Updates to the Service can be found on the CREW CMS website (currently available at www.CREW CMS.com/product-updates). CREW CMS will provide informational updates proactively about major changes to the Service through the in-product chat. CREW CMS may also make new applications, features or functionalities for the Services available from time to time, the use of which may be contingent upon the Customer’s agreement to additional terms.

4.3. Trials and Betas – If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by CREW CMS (or if not designated, 30 days). Trials and Betas are optional through opting in on a voluntary basis and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that CREW CMS may never release, and their features and performance information are CREW CMS’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, CREW CMS PROVIDES TRIAL AND BETAS “AS IS” WITH NO WARRANTY, INDEMNITY OR SUPPORT AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED EUR 50.

5. CUSTOMER OBLIGATIONS

5.1. Respecting Third Party Rights – The Customer represents and warrants that the collection, use, and disclosure of Customer Data will not violate any Third-Party rights, including Intellectual Property Rights, privacy, and publicity rights. If the Customer receives any takedown requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly stop using the related item with the CREW CMS Service(s) and notify CREW CMS. If CREW CMS receives any takedown requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, CREW CMS will respond in accordance with applicable laws, including the Digital Millennium Copyright Act and CREW CMS policies, including immediate removal of the relevant Content from the Service(s), and will notify the Customer on the next steps. The Customer must not take any action that would cause CREW CMS or the Service(s) to become subject to any Third-Party terms (including open-source licence terms).

5.2. Obtaining Consents – The Customer may have the ability to access, monitor, use, or disclose data available to Authorised Users within the Authorised Users’ Accounts. The Customer will obtain and maintain all required consents from Authorised Users to allow: (i) Customer’s access, monitoring, use and disclosure of such data, and (ii) CREW CMS to provide the Service(s).

5.3. Acceptable Use Policy/Prohibited Use – Customer agrees that it shall abide by the terms of the AUP and the Customer shall undertake that its Authorised Users or any Third-Party within the reasonable control of the Customer, in any event including Customer Personnel, shall abide by the terms of the AUP.

5.4. Customer Affiliates – Customer’s Affiliates may use the Service as Authorised Users of Customer. Alternatively, an Affiliate of Customer may enter its own Order Form as mutually agreed with CREW CMS and this creates a separate agreement between Affiliate and CREW CMS that incorporates this Agreement with the Affiliate treated as Customer. Neither Customer nor Customer Affiliate has any rights under each other’s agreement with CREW CMS, and breach or termination of any such agreement is not breach nor termination under any other.

6. CUSTOMER DATA

6.1. Rights in Customer Data – As between the Parties, the Customer retains all right, title, and interest (including any Intellectual Property Rights) in and to the Customer Data (excluding any CREW CMS Technology). The Customer hereby grants CREW CMS a non-exclusive, worldwide, royalty-free right and licence to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Service(s) and related services to the Customer. For Content, this includes the right to publicly display and perform Content (including derivative works and modifications) as directed by the Customer through the Service, subject to Section 21.3. This Section 6 (Customer Data) does not however limit CREW CMS’s right to generate the Aggregate/Anonymous Data in accordance with Section 6.3 (Aggregate/Anonymous Data) below.

6.2. Third-Party Products and Customer Data – If the Customer installs or enables Third-Party Products not already embedded in the Services or Products for use with the Service, the Customer acknowledges that providers of those Third-Party Products may have access to Customer Data in connection with the interoperation and support of such Third-Party Products with the Service(s). To the extent the Customer authorises the access or transmission of Customer Data through a Third-Party Product, CREW CMS will not be responsible for any use, disclosure, modification or deletion of such Customer Data.

6.3. Aggregate/Anonymous Data – CREW CMS will have the right to generate Aggregate/Anonymous Data from the Service(s), which shall provide the Customer access to CREW CMS analytics. Aggregate/Anonymous Data shall be regarded as CREW CMS Technology, which CREW CMS may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve CREW CMS’s products and Service(s) and to create and distribute reports and other materials). For clarity, CREW CMS will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify the Customer or Authorised Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, names, addresses, and cookie IDs). The Customer is not responsible for CREW CMS’s use of Aggregate/Anonymous Data.

6.4. No Archiving – CREW CMS does not provide an archiving service and Customer is responsible for appropriate archiving and backing up Content and its data (Customer Data). The Customer acknowledges that CREW CMS may delete Content no longer in Active Use. Additionally, the Customer acknowledges that CREW CMS may, by giving reasonable prior notice, delete such data relating to a feature of the Service(s) no longer being offered or made available as part of the Service(s). CREW CMS expressly disclaims all other obligations with respect to storage.

6.5. Data Export – During the Subscription Term or within 30 days thereafter, Customer may export its Content from the Service using the export features described in the Documentation. After this export period, CREW CMS may delete Content in accordance with its standard schedule and procedures. If Customer elects to proactively delete its account at any time, all associated Content will be deleted permanently and cannot be retrieved.

7. PERSONAL DATA AND DATA PROTECTION

7.1. DPA – In the course of providing the Service(s) to the Customer, CREW CMS may process certain personal data (as defined in the EU General Data Protection Regulation 2016/679) on behalf of the Customer. Such processing shall be subject to the DPA. Each Party agrees to comply with the DPA.

8. SUPPORT/PROFESSIONAL SERVICES

8.1. Provision of Support Services – CREW CMS makes available web-based support through the Service(s) in addition to email support (available at [email protected]). Additional Support Services may be available to the Customer upon payment of applicable fees, as specified in Customer’s Order Form or CREW CMS’s price list applicable each time. Any Support Services are subject to this Agreement and CREW CMS’s applicable support policies. CREW CMS may also provide onboarding, implementation, and other services under this Agreement. The scope, pricing, and other terms for these Professional Services will be specified in an Order Form, Order Form exhibit, or other document referencing this Agreement. The Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorised use of the Service, subject to the restrictions in Section 4 (Access to the Service) and Section 5.3 (Acceptable Use Policy/Prohibited Use) above applicable to the Service(s) itself. CREW CMS’s ability to deliver additional services will depend on the Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from the Customer needed to deliver the additional services such as copy, images and other content.

8.2. Delivery or Completion Periods – In cases where CREW CMS provides Professional Services, the stated delivery or completion periods are by approximation. The delivery or completion periods have been established based on the expectation that there will be no obstacles for CREW CMS to perform the Professional Services or to undertake the work.

8.3. Inability to Perform – If CREW CMS is unable to perform its obligations in a reasonable time as agreed between the Parties when providing Professional Services, CREW CMS will promptly notify the Customer, stating the expected period by which the said delivery or completion period will be exceeded.

9. SUBSCRIPTION TERM

9.1. Subscription Term – Unless otherwise specified on the Order Form, the Subscription Term shall be for a fixed period of twelve (12) months.

9.2. Cancellation or Termination – The Customer cannot cancel or terminate a Subscription Term prematurely except as expressly permitted by Section 12.3 (Termination for Cause) and Section 17.1 (Performance Warranty).

9.3. Start Date – If a subscription start date is not specified on the applicable Order Form, the Subscription Term starts the day that the Customer signs the Order Form.

9.4. Renewals – Unless otherwise specified in the applicable Order Form, each Subscription Term will renew for a period equal to the initial Subscription Term, unless either Party gives the other Party written notice of non-renewal at least ninety (90) days before the end of the then-current Subscription Term. Upon notice of non-renewal, Customer will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.

9.5. Written Notice – The Customer must give written notice to CREW CMS via email to [email protected]. CREW CMS must give written notice to the Customer via email to either the Customer’s billing email address or to an admin of the CREW CMS account.

10. FEES AND PAYMENT

10.1. Prices and Payment Schedule – The Customer is billed according to the package, fees and payment schedule determined in the applicable Order Form. The Customer agrees to pay all fees in the agreed currency and in accordance with the payment schedule specified in the applicable Order Form.

10.2. Taxes – CREW CMS’s fees are exclusive of all taxes. If CREW CMS is obligated to collect or pay taxes, the taxes will be invoiced from the Customer, unless the Customer provides CREW CMS with a valid tax exemption certificate authorised by the appropriate tax authority. If the Customer is required by law to withhold any taxes from its payments to CREW CMS, the Customer must provide CREW CMS with an official tax receipt or other appropriate documentation to support such payments. Any applicable taxes shall be added to the Customer’s invoice.

10.3. Additional Services – If the Customer wishes to add additional features, Add-Ons, seats, customization or design services, or CREW CMS Websites in excess of the applicable Order Form, CREW CMS may charge additional fees. These fees will be agreed between CREW CMS and the Customer and prorated to the end of the Subscription Term.

10.4. Price Changes – CREW CMS shall have the full right to make changes to their pricing. Such price changes shall take effect upon the commencement of a new Subscription Term or a renewal thereof. CREW CMS shall inform any Customers with an ongoing Subscription Term of such price changes at least one hundred and twenty (120) days in advance.

10.5 Payment Method – The payment shall be made via wire transfer, cheque, or credit card. The message of the payment shall include the applicable invoice number or the reference number of the invoice.

11. INVOICING

11.1. Standard Invoicing Schedule – The Service(s) is invoiced for a 12-month period at the beginning of the Subscription Term. If the Subscription Term exceeds 12-months, the Customer will be invoiced in 12-month periods unless otherwise specified on the Order Form.

11.2. Invoicing Method – The invoices shall be sent to the billing address provided by the Customer. The preferred invoicing method is electronic invoicing via email (as pdf) or e-invoice where available. CREW CMS has the right to add a reasonable invoicing fee for traditional paper invoices sent via traditional mail.

11.3. Payment Term and Late Payments – The term of invoice payment term is 14 days net from the date of issuance of the invoice, unless otherwise specified on the Order Form. CREW CMS has the right to charge a late payment fee and default interest of 1% from the Customer if CREW CMS has not received payment 30 days from the due date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less.

11.4. Blocked Access/Suspension – CREW CMS has the right to suspend the Customer’s accounts and its other obligations under the Agreement and to block access to the Service(s) for all users as a result of non-payment. The Customer will be informed in writing or by email prior to the Service(s) being blocked. The Customer’s liability to pay any invoice does not cease with the termination of this Agreement or with the suspension by CREW CMS of its obligations thereunder.

11.5. Invoicing Information – The Customer shall provide CREW CMS with all necessary reference information needed to process each invoice, including a valid billing address. If the Customer has not provided such information to CREW CMS, the Customer cannot waive the obligation to pay the invoice even if it does not have the reference information needed to internally process the payment.

12. TERMINATION

12.1. Termination – Either Party may terminate the Agreement with ninety (90) days’ advance written notice prior to the Subscription Term end date. If the termination notice is submitted later than ninety (90) days prior to the end of the Subscription Term, the subscription shall renew as defined in Section 9.4 (Renewals) and the termination shall commence at the end of the renewed Subscription Term.

12.2. Termination Notice – The Customer shall submit the termination notice via email to notice@CREW CMS.com. Only termination notices (i) submitted to the above email address or (ii) for which Customer has received a written acceptance or acknowledgement of termination by a CREW CMS employee, shall be deemed a valid termination notice.

12.3. Termination for Cause – Either Party may terminate this Agreement (including all Orders) immediately if the other Party i) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice (ii) terminates or suspends its business, (iii) ceases operations without a successor or (iv) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

12.4. Obligations upon Termination – Upon the termination of this Agreement: (i) the rights granted by one Party to the other will cease immediately (except as set forth in this Section 12 (Termination)) other than limited use of the Service to export Customer Content as defined in Section 6.5 (Data Export); and (ii) upon request each Party will promptly use commercially reasonable efforts to return or destroy Confidential Information of the other Party.

12.5. Surviving Terms – Such sections of the Agreement that by their nature are intended to remain in force after the termination or expiration of the Agreement shall survive the termination or expiry of the Agreement. Such sections include, namely, without limitation, Sections 13 (Confidentiality), 14 (Intellectual Property Rights), 16 (Indemnification), 18 (Limitations of Liability) and 20 (General Terms).

13. CONFIDENTIALITY

13.1. Confidentiality Obligation – Each Party (as the receiving Party) must: (i) hold in confidence and not disclose the other Party’s Confidential Information to Third Parties except as permitted by this Agreement; and (ii) only use the other Party’s Confidential Information to fulfil its obligations and exercise its rights under this Agreement. Each Party may share the other Party’s Confidential Information with its Affiliates, employees, agents or contractors on a legitimate need-to-know basis (which, for CREW CMS, includes the subcontractors referenced in Section 20.4 (Subcontractors), provided that the Party remains responsible for any recipient’s compliance with the terms of this Section 13 (Confidentiality) and that such recipients are bound to confidentiality obligations no less protective than those set herein.

13.2. Exemptions from Confidentiality – These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving Party; (ii) was known by the receiving Party before it received the Confidential Information; (iii) is rightfully obtained by the receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving Party without using the disclosing Party’s Confidential Information, as can be shown by documentary evidence. A Party may also disclose the other Party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other Party to obtain confidential treatment for the information.

13.3. Equitable Relief – The Parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section 13 (Confidentiality), each Party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

14. INTELLECTUAL PROPERTY RIGHTS

14.1. No Transfer of Intellectual Property Rights – Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s Intellectual Property Rights. As between the Parties, the Customer owns all Intellectual Property Rights in Customer Data, and CREW CMS owns all Intellectual Property Rights in the CREW CMS Technology.

15. CREW CMS TECHNOLOGY

15.1. Subscription Basis – The Service(s) is provided in the form of an online service subscription. The Customer acknowledges that it is obtaining only a limited right to use the Service(s) and that irrespective of any use of words such as “purchase”, “sale”, or similar terms, no ownership rights are transferred to the Customer under this Agreement. The Customer agrees that CREW CMS (or its suppliers) retain all rights, title and interest (including all Intellectual Property Rights) in and to all CREW CMS Technology and that CREW CMS reserves all rights not specifically granted in this Agreement. Customer further acknowledges and agrees that it has no right to obtain a copy of the software behind any Service(s).

15.2. Feedback – If the Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to CREW CMS (collectively, “Feedback”), the Customer hereby grants CREW CMS a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and licence to use, copy, disclose, licence, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on Intellectual Property Rights or otherwise. CREW CMS will not identify the Customer as the source of the Feedback. Nothing in this Agreement limits CREW CMS’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

16. INDEMNIFICATION

16.1. Indemnification by CREW CMS – CREW CMS agrees to defend and indemnify the Customer from and against any Third-Party claims resulting from infringement of patent, copyright, trademark, or trade secret by the Service(s) itself, as provided by CREW CMS and used by the Customer in accordance with this Agreement. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if CREW CMS determines these actions are reasonably necessary to avoid material liability, CREW CMS may at its option: (i) procure a licence for the affected portion of the Service(s); (ii) modify the Service(s) so as to avoid infringement but be materially equivalent; or (iii) terminate the Order Form for the affected Service(s) and refund any subscription fees the Customer has pre-paid for the terminated portion of the applicable Subscription Term. Notwithstanding the above, CREW CMS’s obligations under this Section 16 (Indemnification) do not apply to the extent infringement results from: (i) Third-Party Products or combinations with these items; (ii) modification of the Service(s) by someone other than CREW CMS or its subcontractors; or (iii) use of the Service other than the then-most current release. CREW CMS’s obligations under this Section 16 (Indemnification) also do not apply to use in breach of this Agreement, to Customer Data or to Trials and Betas.

THIS SECTION 16 (INDEMNIFICATION) STATES THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER AND THE ENTIRE LIABILITY OF CREW CMS, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

16.2. Indemnification by Customer – The Customer agrees to defend and indemnify CREW CMS from and against any third-party claims and liabilities to the extent resulting from Customer Data or a breach or alleged breach of Section 5 (Customer Obligations).

16.3. Conditions for Indemnification – Each Party’s defence and indemnification obligations are subject to the indemnifying Party receiving: (i) prompt written notice of the claim; (ii) the exclusive right to control and direct the investigation, defence, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified Party at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). The indemnifying Party must not settle any claim without the indemnified Party’s prior written consent if the settlement would require the indemnified Party to admit fault, pay amounts that the indemnifying Party must pay under this Section 16 (Indemnification), or take or refrain from taking any action (other than with respect to the Service(s) or features). The indemnified Party may participate in a claim through counsel of its own choosing at its own expense.

17. WARRANTY; DISCLAIMERS

17.1. Performance Warranty – During the Subscription Term, CREW CMS warrants, for the Customer’s benefit only, that: (i) the Service(s) shall perform materially in accordance with the applicable Documentation (“Performance Warranty”). The Customer must notify CREW CMS in writing within thirty (30) days of discovery and include a brief reference to the applicable warranty and detailed description of the potential breach. If CREW CMS receives a valid warranty claim within this period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the Service(s) or re-perform the services (as applicable). If CREW CMS determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form with prompt written notice. Upon termination as a result of a warranty claim under this Section 17 (Warranty; Disclaimers), the Customer will receive a refund of any subscription fees it has pre-paid for the terminated portion of the applicable Subscription Term. The remedy in this Section 17 (Warranty; Disclaimers) will be the Customer’s sole and exclusive remedy (and CREW CMS’s sole liability) for any breaches of the Performance Warranty. Notwithstanding the above, the Performance Warranty does not cover and CREW CMS will not be responsible for: (i) errors in or resulting from Third-Party Products or Third-Party Content; (ii) the Customer’s misuse or failure to follow the Documentation; (iii) modifications or services by anyone other than CREW CMS or its subcontractors; (iv) any version of the Service other than the then most recent release; or (v) any Trials and Betas.

17.2. NO OTHER WARRANTIES. EXCEPT FOR THE ABOVE PERFORMANCE WARRANTY, ALL CREW CMS TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER CREW CMS NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, THAT CUSTOMER DATA IS PRESERVED WITHOUT LOSS OR THAT CREW CMS TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE.

THE DISCLAIMERS IN THIS SECTION 17 (WARRANTIES; DISCLAIMERS) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. THE CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

18. LIMITATIONS OF LIABILITY

18.1. Neither Party or its suppliers are liable for any indirect or consequential damages, including but not limited to loss of data, business interruption, lost profits, or reputational harm, even if informed in advance of the possibility of these damages. CREW CMS disclaims responsibility for third-party products, content, or services, and any associated issues, breaches, or decisions made by the Customer. CREW CMS’s liability is limited to the lesser of its insurance coverage or the total payment made by the Customer for CREW CMS Services. If for whatever reason, no (full) payment is made under the professional and corporate insurance of CREW CMS, CREW CMS’s maximum liability in connection with an attributable failure in the performance of this Agreement, wrongful act or any legal ground whatsoever is capped in aggregate at twice the subscription cost made by the Customer in the preceding twelve months. Every claim against CREW CMS becomes time barred 12 months after the Customer was aware or should have been aware of the harmful event. These liability limitations do not affect indemnity obligations under Section 16 and customer payment responsibilities. CREW CMS is not liable for damages resulting from hacking or malware if reasonable security measures were taken. If applicable law restricts liability limits, they apply to the maximum extent permitted.

19. THIRD-PARTY PRODUCTS AND INTEGRATIONS

19.1. No Liability for Third-Party Products – If the Customer decides to enable, access or use Third-Party Products, the Customer’s access and use of Third-Party Products shall be governed solely by the terms and conditions of such Third-Party Products. The Customer irrevocably waives any claim against CREW CMS with respect to Third-Party Products. CREW CMS does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by CREW CMS as “powered” or “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Service(s), including their modification, deletion, disclosure, or collection of Customer Data. CREW CMS is not responsible in any way for Customer Data once it is transmitted, copied or removed from the Service(s) by the Customer or under the Customer’s discretion.

20. GENERAL TERMS

20.1. Notice – Any notice or communication under this Agreement must be in writing. The Customer must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to CREW CMS, in English, at the following address, [email protected], and include “Attn. Legal Department” in the subject line. CREW CMS may send notices to the email addresses on the Customer’s account or, at CREW CMS’s option, to the Customer’s last-known postal address. CREW CMS may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of the notice on CREW CMS’s website or the Service. Each Party consents to receiving electronic notices. CREW CMS is not responsible for any automatic filtering the Customer or its network provider may apply to email notification.

20.2. Assignment – This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Agreement without the advance written consent of the other Party, except that each Party may assign this Agreement without consent in connection with a merger, reorganisation, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorised under this Section 20 (General Terms) will be void.

20.3. Publicity – Unless otherwise specified in the applicable Order Form, CREW CMS may use the Customer’s name, logo, and marks to identify the Customer as a Customer of CREW CMS and a user of the relevant Service(s) on CREW CMS’s website and in other marketing materials. CREW CMS shall also have the ability to feature Customer generated public content in their external communications including but not limited to social media,. CREW CMS shall cease using the Customer’s name, logo, marks and public content upon written notice to notice@CREW CMS.com. All other disclosures about the Customer, including Customer testimonials and case studies, are only done so only after collaborating with and obtaining permission with the Customer.

20.4. Subcontractors – CREW CMS may use subcontractors and permit them to exercise the rights granted to CREW CMS in order to provide the Service under this Agreement. These subcontractors may include, for example, CREW CMS’s hosting provider. However, subject to all terms and conditions of this Agreement, CREW CMS will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Services if and as required under this Agreement.

20.5. Independent Contractors – The Parties to this Agreement are independent contractors. This Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship between the Parties. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

20.6. Force Majeure – Neither Party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, pandemics, including Covid19, and/or government acts.

20.7. Export – The Customer is responsible for obtaining any required export or import authorizations or control laws for the use of any Service(s).

20.8. Amendments – Any modification or amendment to this Agreement must be made in writing and executed by an authorised representative of each Party. If, during the Subscription Term, CREW CMS modifies the Service-specific terms relevant for a specific Service purchased under an Order Form, CREW CMS will provide notice thereof to Customer and the modified version will take effect upon the Customer’s next renewal. If CREW CMS launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon the Customer’s acceptance or use. If Customer accepts new Order Forms or Order Form changes following the modification, the changes will take effect immediately. However, during a Subscription Term, CREW CMS may update CREW CMS’s policies, including without limitation the Acceptable Use Policy, and Documentation from time-to-time to reflect process improvements or changing practices, provided these changes do not substantially diminish the Customer’s rights or create substantial additional Customer obligations during a Subscription Term, and these changes will take immediate effect from the date of posting.

20.9. No Waiver – Failure to enforce any provision of this Agreement will not constitute a waiver.

20.10. Severability – If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

20.11. No Third-Party Rights – Nothing in this Agreement confers on any Third-Party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s).

20.12. Entire Agreement – This Agreement represents the Parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the CREW CMS Technology or any other subject matter covered by this Agreement. Any terms provided by the Customer (including as part of any purchase order or other business form used by the Customer) are for administrative purposes only and have no legal effect. This Agreement may be signed in counterparts, including by electronic copy, each of which will be deemed an original, and all counterparts together constituting one and the same Agreement.

20.13. Governing Law, Jurisdiction and Region-Specific Terms. Governing law, jurisdiction, and other region-specific terms are set out below:

20.13.1. Governing Law and Dispute Resolution – This Agreement is governed by the laws of Canada without regard to any conflict of law provisions. All disputes will primarily be resolved by negotiation between the Parties. If such negotiations fail, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be litigated exclusively by the competent court(s) of Ontario, Canada. If the Customer is not located in Canada, CREW CMS may, at its own discretion, deviate from the above and may – at its own discretion – demand, and Customer hereby irrevocably agrees in advance, that a dispute, controversy or claim arising out of or relating to this contract or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the laws of Canada, irrespective of the place where the contract is performed. The number of arbitrators shall be one (1). The seat of arbitration shall be District Court of Ontario, including its preliminary relief judge. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.

21. ORDER OF PRECEDENCE

21.1. The Order of Precedence is i) Order Form(s) ii) DPA iii) Acceptable Use Policy, iv) this Agreement, iv) Service Level Agreement, iv) Annexes in descending order, v) written communication between the Parties.