TERMS AND CONDITIONS OF CLIENT SERVICE AGREEMENT
These Terms and Conditions for the Client Services Agreement (“Terms and Conditions”) shall be fully incorporated into the Client Services Agreement (the “Agreement”). Unless defined otherwise, the terms and definitions used herein shall refer to the terms and definitions set forth in the Agreement. By agreeing to the Client Services Agreement, Client explicitly agrees to the following Terms and Conditions:
Superiority. To the extent that any conflict exists between the provisions in the Agreement and these Terms and Conditions, the provisions of the Agreement shall be deemed controlling.
Covered Services. It is understood that these Terms and Conditions apply to all services provided by Crisp to Client. This explicitly includes any future, additional, or subsequent services provided by Crisp to Client beyond those contemplated in the Agreement.
Payment. Payment is due from Client to Crisp prior to service. The Client will be assessed a $50 non-sufficient funds fee for any returned checks or any other failed payment for any reason, including but not limited to resulting from failed ACH charges, insufficient funds, incorrect or inaccurate information, etc. In Crisp’s sole discretion, Crisp may choose to invoice Client for services after commencing performance of services, in lieu of requiring payment up front, in which case payment is due within 15 days of any invoice provided.
Late Payments. Any payments not paid within 10 calendar days of the due date therefore, will incur a monthly penalty fee of five per cent (5%) of the outstanding balance, compounded monthly.
Cancellations or Rescheduling. Cancellation or rescheduling of a Shoot or Training within 15 business days of the confirmed date shall be subject to a rescheduling fee of $1,000.
ACH Debits. Client agrees to provide payment(s) to Crisp via ACH debit transaction(s) by executing the ACH Debit form or supplying ACH information to Crisp. Client agrees that all ACH transactions, including the origination of any ACH transactions or funds, shall comply with all provisions of any applicable law, rule, and regulation. Crisp may initiate a debit transaction any time monies are due, or may choose to initiate them periodically, such as (solely by way of example) weekly, monthly, or quarterly. Client shall bear any and all fees, costs, and expenses associated with any ACH transaction, including but not limited to those that may be incurred by Crisp by virtue of such transaction. Client recognizes that Client’s or Crisp’s financial institution may charge fees or expenses for using an ACH transaction. Client warrants the accuracy of any information provided relating to any ACH transaction, including but not limited to any account and routing number provided. Client agrees to indemnify, hold harmless, and release Crisp from any and all claims arising in connection with utilizing ACH transactions pursuant to this Agreement.
Credit Card Payments. Client agrees to provide payment(s) to Crisp via credit card transaction(s) by executing the Credit Card Authorization form or supplying credit card information to Crisp. Unless revoked in writing, Crisp may initiate a credit card transaction any time monies are due, or may choose to initiate them periodically, such as (solely by way of example) weekly, monthly, or quarterly. Client shall bear any and all fees, costs, and expenses associated with any credit card transaction, including but not limited to those that may be incurred by Crisp by virtue of such transaction. Client warrants the accuracy of any information provided relating to any credit card transaction. Client agrees to indemnify, hold harmless, and release Crisp from any and all claims arising in connection with utilizing a credit card transaction pursuant to this Agreement.
Recurring Billing for Social Stack, ELITE, PREMIER, Crisp Experience, and Thought Leadership. Any recurring billing packages (including but not limited to Crisp’s ‘Social Stack’, ‘ELITE’, ‘Crisp Experience’, and ‘Thought Leadership’ packages) shall automatically renew for additional terms of equal length to the immediate preceding term unless Client notifies Crisp in writing of its intent not to renew, no less than thirty (30) days prior to the end of the initial billing term or then-current renewal period (as the case may be).
Recurring Billing for CrispX/Game Changer Packages. Any recurring billing packages (including but not limited to Crisp’s ‘CrispX/Game Changer’ packages) shall automatically renew for additional terms of equal length to the immediate preceding term unless earlier terminated by the Client by providing written notice to Crisp of its intent not to renew, no less than thirty (30) days prior to the end of the initial billing term or then-current renewal period (as the case may be).
Crisp Focus Retreats. In addition to the Services contemplated and agreed upon with Crisp upon onboarding, any existing Crisp Coach Members shall have the opportunity to enroll in Crisp Focus Retreat Services for an additional monthly fixed rate. The Focus Retreat Fees shall be due and payable on or before the first of each month regardless of whether the Client actively participates in or takes full advantage of the Crisp Focus Retreat Services. By electing to participate in Crisp Focus Retreats, the Client agrees to authorize Crisp to bill the first month’s fees immediately upon enrollment by charging the payment method that Crisp has on file for that Client. Crisp Focus Retreats Services shall be offered on 12 month terms or for the remainder of the Client’s current term, whichever is greater. The Crisp Focus Retreats enrollment shall automatically renew for terms of equal length to the previous term unless the Client provides written notice of its intent to not terminate the services within thirty days of the expiration date of the then current term.
Crisp Focus Retreat Services shall be rendered onsight at the Client’s designated premises, and the Focus Retreat Fees shall include one full day onsite visit per quarter (every 90 days). If a Client fails to schedule an onsite visit within a 90 day period then no refund shall be available and no rollover onsite visit shall be applied. The Crisp Focus Retreat Services are offered on a strictly “Use It or Lose It” basis. For any Clients that enroll in the Crisp Focus Retreat Services at the 2023 Crisp Summit, said Clients shall have until March 31, 2024 to schedule their first onsite session before losing it. The Client hereby releases and forever discharges Crisp, its employees, agents, and representatives from any and all liability, claims, demands, actions, or causes of action, whether at law or in equity, arising from or in connection with Crisp Focus Retreat Services contemplated herein.
Crisp Recruit. In addition to the Services contemplated and agreed upon with Crisp upon onboarding, any existing Crisp Coach Members shall have the opportunity to enroll in Crisp Recruit Services for an additional monthly fixed rate. The amount of the additional monthly rate (“Recruit Fees”) shall be dependent upon the Program Tier enrolled in by the Client. The Recruit Fees shall be due and payable monthly regardless of whether the Client actually hires or engages candidates sourced by Crisp. Crisp Recruit Services will be offered on 12 month terms that will auto renew for subsequent 12 month terms unless otherwise terminated by Client in accordance with the Notice Requirements established herein. Clients must be proactively in the process of role scoping candidates within their current term of Crisp Recruit Services in order to remain eligible for the Program.
Crisp Recruit Services will focus exclusively on sourcing and identifying qualified candidates as such relate to Operational Roles, including but not limited to office administration roles, executive assistants, C-Suite roles, and other back office functions. For the avoidance of doubt, Crisp Recruit Services does not extend to legal roles. Crisp will only recruit for one position at a time for each Client. Crisp may modify this policy at the sole and exclusive discretion of Crisp.
If Clients choose to engage a candidate sourced by Crisp, whether as a W2 employee or a 1099 independent contractor, said candidate shall be eligible to participate in six months (the “Membership Trial”) of the Crisp Experience Program free of charge following the initial 90 days of Client onboarding the candidate and so long as the Client is an active Crisp Coach Member in good standing. Upon completion of the Membership Trial, and unless expressly rejected by the Client in writing prior to the expiration of the Membership Trial, each candidate shall be subsequently enrolled in a 12 month term for the Crisp Experience in which the Client shall be billed $1,000 per month for each candidate enrolled. This 12 month term shall automatically renew for successive 12 month terms unless the Client provides written notice of termination no less than thirty days prior to the expiration of any term.
Crisp will provide a limited Guarantee Period (initial 90 days of employment or engagement by Client) for each candidate that Crisp sources and the Client engages. Should the candidate voluntarily resign or be terminated by the Client for any reason during the Guarantee Period then Crisp will make reasonable efforts to provide the Client with a suitable replacement candidate as quickly as possible, at no additional charge.
The Client hereby releases and forever discharges Crisp, its employees, agents, and representatives from any and all liability, claims, demands, actions, or causes of action, whether at law or in equity, arising from or in connection with the employment or engagement by the Client of any candidate sourced by Crisp. The Client acknowledges that the recruitment and selection of candidates are conducted to the best of Crisp’s ability, based on information provided by the candidates and as per industry standards. The Client assumes all responsibility for the performance, conduct, and any employment-related matters concerning the candidates sourced hereunder. The Client agrees to indemnify and hold Crisp harmless from any claims, liabilities, or expenses, including attorney’s fees and court costs, arising out of or in connection with any actions, omissions, or disputes related to the employment relationship or engagement with any candidates sourced by Crisp.
Dispute Resolution Notice. Client agrees to provide Crisp with written notice of any dispute, claim, or controversy, of any sort or nature, arising out of the Services or relating to Crisp, within six (6) months after any such claim, dispute, or controversy arises. Client must provide written notice via certified mail, return receipt requested, to: The RAD Firm, LLC, 1785 E. Park Place Blvd. #871344, Stone Mountain, GA 30087 Attn: Robert D. Adamson, Jr. Any failure to strictly follow the procedures delineated in this section shall constitute an unconditional waiver of any dispute, claims, or controversy that may exist or Client may have against Crisp, its affiliates, subsidiaries, parent entity, licensors, licensees, owners, shareholders, officers, directors, employees, contractors, and agents. Client agrees to pay Crisp’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.
Limitation of Liability. IN NO CASE SHALL CRISP, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (EVEN IF CRISP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
IN NO EVENT WILL THE AGGREGATE OF EACH OF CRISP, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS’ LIABILITY FOR ANY AND ALL OF CLIENT’S CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST CRISP (AND/OR ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS), ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF ANY SERVICES OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF CRISP, EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00). CLIENT AGREES THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THE AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, CRISP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND CRISP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY OTHER TERMS ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE THAT WOULD EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES EXPLICITLY CONTAINED HEREIN.
Client Representations and Warranties; Indemnity. Client represents and warrants that Client has the full and unconditional right and authority to enter into, perform, and be bound by all of the terms and conditions of this Client Service Agreement, and that there is no contract, understanding, or pending or contemplated action that will in any way interfere with or adversely affect Client’s ability to fulfill its obligations under these Terms and Conditions. Client agrees to indemnify and hold harmless Crisp and the Crisp Parties from all claims, actions, liabilities, damages, losses, judgments, costs and expenses, including without limitation, reasonable attorney’s fees and costs, arising from or related to any acts or omissions of Client or the breach by Client of any of the representations, warranties, terms or conditions of these Terms and Conditions.
Legal Agreement. Client hereby warrants and agrees that the Terms and Conditions contained in this Client Service Agreement constitute a legal agreement between Client and Crisp and governs all services provided by Crisp to Client. Client hereby irrevocably waives any argument or defense to the contrary, and Client covenants not to set forth any argument or defense to the contrary.
Waiver. Crisp’s failure to enforce or demand strict compliance of any right or provisions in the Agreement will not constitute a waiver of such or any other provision.
Intellectual Property Rights. As the creator of all Images (as defined below) made hereunder, Crisp shall retain all intellectual property rights, in perpetuity and regardless of possession, of all Images, including but not limited to any copyrights with respect to the same. As used in this Agreement, “Image” means all work-product produced and/or taken by Crisp, including but not limited to any photograph, video, raw footage, digital and/or audio, and any other works made by Crisp while performing the Services, in any format and/or method whatsoever, whether now existing, or later created or developed. Client shall not reproduce Images in any manner without Crisp’s explicit written permission. Client recognizes and agrees that Crisp may reproduce, transmit, broadcast, distort, publish (including but not limited to the internet), sell, exhibit and otherwise use Images created hereunder for any purpose, in any manner, at any time, and in any format desired, including but not limited to commercial purposes.
Confidential Information and Trade Secrets.
“Confidential Information” is defined in O.C.G.A. §13-8-51(3) means data and information relating to the Crisp’s business, regardless of whether the data or information constitutes a Trade Secret as that term is defined by Georgia law, which data or information: (a) is disclosed to Client or of which Client becomes aware as a consequence of the Client’s relationship with Crisp; (b) has value to the Crisp; (c) is not generally known to competitors of Crisp; and (d) which includes, but is not limited to, Trade Secrets, methods of operation, business processes, course training material, names of customers, price lists, salary and/or pay rates, financial information and projections, personnel data, internal company emails, and similar information.
“Trade Secrets” is defined in O.C.G.A. §10-1-761(4) and means any Confidential Information described above without regard to form which: (i) is not commonly known by or available to the public; (ii) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (iii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Client agrees that all Confidential Information and Trade Secrets and all physical embodiments thereof are confidential to Crisp and will remain Crisp’s sole and exclusive property. Client warrants and agrees that, during the term of service and thereafter, Client will not reproduce, use, distribute, disclose, publish, misappropriate or otherwise disseminate any Trade Secrets, will not take any action causing, or fail to take any action to prevent, any Trade Secret to lose its character as a Trade Secret until and unless such Trade Secrets lose their status as Trade Secrets through no fault, either directly or indirectly, of Client. Client further warrants that, during the term of service and thereafter, Client will not reproduce, use, distribute, disclose, publish, misappropriate or otherwise disseminate any Confidential Information and will not take any action causing, or fail to take any action to prevent, any Confidential Information to lose its confidential character, unless such Confidential Information loses its confidential status through no fault, either directly or indirectly, of Client. All Confidential Information, Trade Secrets, and other Crisp records, files, memoranda, reports, lists, materials, drawings, designs, proposals, plans, sketches, documents, computer programs, disks, computer printouts and the like (together with all copies thereof) relating to the business of Crisp, which Client came in contact with in the course of its relationship with Crisp are the sole property of Crisp. Client shall return all such materials and products to Crisp upon request by Crisp or immediately upon the end of Client’s relationship with Crisp.
Client’s Usage. Without limiting the foregoing, copyright for all footage filmed/photographed will be owned by Crisp; provided that, with the exception of any raw footage and upon Client’s full payment of the Program Price and any and all other services rendered by Crisp, Crisp shall grant to Client an irrevocable license to use the final video product for any purpose, including but not limited to for the promotion, marketing and sales of Client’s goods or services. The Client may request the option to purchase a copy of the raw footage which shall be delivered to Client on an external hard drive for a fee of $4995 payable upon order.
Additional Rights. Client may attempt to negotiate additional licensing rights for use of Images, but Crisp is under no obligation to enter into such an agreement. Client may also attempt to purchase or license any Image in an additional format or size, but Crisp is under no obligation to make such a sale or license.
Presentation. A presentation of the Images produced by Crisp is ordinarily sent to Client digitally or made available on an online gallery. Artistic enhancements or touch-ups of Images are included at Crisp’s sole discretion.
Retention Period. Crisp agrees to retain Images for a minimum of three months after such Images are taken. Client shall have no right to obtain any Images from Crisp after this period of time, irrespective of whether Crisp has retained or continues to utilize such Images as Crisp desires.
Requested Photos. While Crisp will make reasonable efforts to take photos and/or Images specifically requested by Client, Client understands that all services performed by Crisp are at an uncontrolled event and that due to the vagaries of the weather, available light, time restrictions, and willingness of subjects, Crisp cannot ensure that requested photos will be taken.
Cancellation. Client understands and agrees that Crisp reserves specified times and dates for Client. Accordingly, payments are non-refundable even if Client cancels the request for Crisp’s services, cancels the event, or changes the date of the event. Crisp may choose, at Crisp’s sole discretion, to provide a refund to Client or to charge Client a reduced rate in the event of a cancellation upon reasonable notice to Crisp; similarly, Crisp may choose, at Crisp’s sole discretion, to provide services to Client in the event that Client changes the date of an event. Provided, however, that Crisp shall have no obligation to offer any refund, charge a reduced rate, or provide any additional or alternate services to Client if Client cancels the request for Crisp’s services, cancels the event, or changes the date of the event.
Termination. This Agreement may be terminated by either party if the other party commits a material breach of any of its obligations under the terms of this Agreement and fails to cure such breach within ten (10) days following receipt of written notice from the non-defaulting party with the particularities of such breach. Should the Client terminate this Agreement for any reason other than a material breach of contract by Crisp prior to the natural expiration of the agreed term of the Agreement and any extensions thereto then the Client shall pay an “Early Termination Fee” equal to sixty percent (60%) of the remaining contractual balance then owed at the time of termination, which shall include ALL Crisp Programs and Services enrolled in by the Client at the time of such premature termination. The Early Termination Fee shall be due within ten (10) days of Crisp receiving notice of the Early Termination from Client.
Excused Performance. Crisp shall be excused from any performance and any or all of its duties herein for any reasonable reason unforeseen by Crisp, including but not limited to, fire, war, transportation problems, acts of God, pandemics, technical problems, or any other reason deemed appropriate in Crisp’s sole and reasonable discretion. In such an event, if Client requests, Client shall be entitled to a pro-rata credit to be applied to any subsequent payment Client owes Crisp provided, however, that under no circumstances shall Crisp be required to pay any monies or make any refund to Client.
Modifications. Client agrees to examine these Terms and Conditions prior to receiving any services by Crisp. These Terms and Conditions may be modified by Crisp on the first day of each annual quarter without notice to Client. Client agrees to be bound by any modification in these Terms and Conditions upon successively obtaining any services from Crisp. Client agrees and understands that if Client does not agree to the modification of these Terms and Conditions, then Client may reject such modification by providing written notice stating Client rejects the modification to Crisp’s legal counsel, via certified mail, return receipt requested, at The RAD Firm, LLC, 1785 E. Park Place Blvd. #871344, Stone Mountain, GA 30087 Attn: Robert D. Adamson, Jr. In the event Client provides such notice that Client rejects the modification to these Terms and Conditions, then any prior Terms and Conditions in effect will continue to exist in full force and effect unless Crisp and Client agree otherwise.
Unenforceable Provisions. If any provision of this Agreement or the Terms and Conditions herein, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
Headings and Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Notice Precursor to Action. Client agrees that prior to initiating or filing any lawsuit, action, or demand for arbitration against Crisp, Client must provide written notice to Crisp’s legal counsel, via certified mail, return receipt requested, at The RAD Firm, LLC, 1785 E. Park Place Blvd. #871344, Stone Mountain, GA 30087 Attn: Robert D. Adamson, Jr, which provides notice of any issue that would be subject to such a lawsuit or arbitration. Such notice requirement shall be strictly construed, and Client’s failure to comply with such notice requirements shall constitute an irrevocable waiver of any claim or cause of action that exists or may exist. Such notice requirement shall be additional to any and all other notices required under this Agreement. Client agrees to pay Crisp’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.
Initiation of Action. Client agrees that any claim and lawsuit relating to any matter with Crisp, including but not limited to claims arising out of or related to the Agreement and any services provided by Crisp to Client, and any demands for arbitration, must be filed no more than six (6) months after the date the action or non-action that is the subject of the claim or lawsuit, or six (6) months after the acceptance of these Terms and Conditions, whichever is later. Client hereby waives any defense or argument pertaining to statute of limitations. Client agree and warrant that Client’s failure to comply with this section shall serve as an unconditional waiver and release for any and all such claims.
Arbitration. In the event that the parties are unable to resolve any Dispute informally, then such Dispute shall be submitted to final and binding arbitration. THE PARTIES HERETO AGREE THAT ANY AND ALL DISPUTES OR CONTROVERSIES ARISING UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, ANY OF SUCH TERMS, ANY EFFORT BY ANY PARTY TO ENFORCE, INTERPRET, CONSTRUE, RESCIND, TERMINATE OR ANNUL THE AGREEMENT AND THE TERMS AND CONDITIONS, OR ANY PROVISION AND SECTION THEREOF, AND ANY AND ALL DISPUTES OR CONTROVERSIES RELATING TO OR INVOLVING CRISP, SHALL BE RESOLVED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR IN ACCORDANCE WITH COMMERCIAL RULES OF ARBITRATIONS AS PROMULGATED BY THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH ARBITRATION INITIATED UNDER THIS AGREEMENT SHALL BE HELD EXCLUSIVELY WITHIN ATLANTA, GEORGIA. THE PARTIES HERETO AGREE THAT THE ARBITRATOR’S RULING IN THE ARBITRATION SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL OR CHALLENGE. THE PARTIES HERETO FURTHER AGREE THAT THE ARBITRATION PROCEEDINGS, TESTIMONY, DISCOVERY AND DOCUMENTS FILED IN THE COURSE OF SUCH PROCEEDINGS, INCLUDING THE FACT THAT THE ARBITRATION IS BEING CONDUCTED, WILL BE TREATED AS CONFIDENTIAL AND WILL NOT BE DISCLOSED TO ANY THIRD PARTY TO SUCH PROCEEDINGS, EXCEPT THE ARBITRATOR AND THEIR STAFF, THE PARTIES’ ATTORNEYS AND THEIR STAFF, AND ANY EXPERTS RETAINED BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION OR IN ANY OF THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION SHALL PREVENT CRISP FROM SEEKING PROVISIONAL RELIEF OUTSIDE OF ARBITRATION, INCLUDING BUT NOT LIMITED TO EQUITABLE AND/OR INJUNCTIVE RELIEF, PENDING THE ARBITRATOR’S FINAL DECISION. THE PREVAILING PARTY IN ANY SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER ALL COSTS OF ARBITRATION AND ITS REASONABLE ATTORNEY’S FEES FROM THE NON-PREVAILING PARTY.
Release and Indemnity. Client releases Crisp, its owners, shareholders, officers, directors, agents, contractors, employees, licensees, and invitees (hereinafter “Crisp Parties”) from any and all liability for, and agrees to indemnify and hold Crisp Parties harmless from and against, any and all losses, claims, expenses, costs, and damages, including but not limited to reasonable attorney’s fees, costs, or expenses, which are claimed of or sustained, suffered, paid or incurred by Crisp Parties, irrespective of Crisp Parties’ negligence (except gross negligence), for reason of or in connection with any or any combination of the following: (a) Crisp Parties’ breach of or failure to fulfill any provision of the Agreement or these Terms and Conditions, whether such breach is material or not; (b) any cause of action in any way related to or arising out of Crisp Parties ‘conduct, actions, or omissions, including but not limited to any damage or injury to person or property; (c) any matter in any way related to the Agreement or performance under the Agreement. Client agrees to obtain insurance coverage, including a project specific insurance policy or policies, an owner’s or contractor’s protective insurance policy, an owner controlled insurance policy, or a contractor controlled insurance policy, to cover any and all such requirements and obligations specified in this paragraph.
Non-Solicitation Covenant. In order to safeguard both the Confidential Information and the business relationships of Crisp, the Client agrees as follows: the Client agrees that for a period of twenty-four (24) months following the termination of this Agreement for any reason, the Client shall not, on the Client’s own behalf or on behalf of any person or entity, solicit, contact, or call upon any Customer, or any representative of any Customer of Crisp, with a view to sell or provide any product or service competitive with any product or service sold or provided by Crisp during the Client’s relationship with Crisp, provided that the restrictions set forth in this section shall apply only to Customers of Crisp, or representative(s) of Customers of Crisp, with which the Client had contact with as a result of Client’s relationship with Crisp.
Non-solicitation of Employees, Contractors, or Agents. Client hereby agrees that during the course of receiving services and for a period of twenty-four (24) months immediately following the date of the last service provided by Crisp to Client, Client will not hire any employee, contractor, or agent of Crisp and will not, either directly or indirectly, solicit, induce, recruit, or encourage any Crisp employee, contractor, or agent to leave its employment, or take away such employee, contractor, or agent, or attempt to solicit, induce, recruit, encourage, or take away any employee, contractor, or agent of Crisp, either on behalf of the Client or for any other person or entity.
Client recognizes and hereby acknowledges that the Client’s breach of any of the covenants contained in this section will cause irreparable harm and substantial damage to Crisp, the monetary amount of which would be virtually impossible to ascertain and extremely difficult to measure. Accordingly, in the event of a breach of this section, Crisp shall be entitled to a sum of fifty thousand dollars ($50,000) from the Client for liquidated damages, which both Crisp and Client believe is a good faith estimate for damages incurred from a breach of this section by the Client and in light of the difficulty of assessing actual damages. This sum is arrived at by considering the amount of time and cost it typically takes Crisp to recruit and train its employees, contractors, and agents. Both the Client and Crisp mutually agree that this provision is reasonable and not a penalty. Client and Crisp waive any arguments pertaining to the reasonableness of this sum or the method by which it was arrived.
Non-Disparagement. During the term of this Agreement and following the termination of this Agreement for any reason, Client hereby agrees that it will not make any public disparaging statements concerning Crisp or its owners, affiliates, officers, directors, employees, agents, or contracting parties, its business or operations or the services provided by Crisp.
Acceleration. In the event that Client materially breaches the Agreement, all future payments contemplated by the Agreement shall be considered immediately due and payable in full as of the date of the breach. Client understands and recognizes that Crisp frequently allocates overhead costs and budgets for future costs, such as through third-party contracts and long-term employment agreements. Accordingly, Client explicitly agrees that it shall not be entitled to any offset or discount for future payments owed, and waives any arguments and defenses pertaining to such. Client’s failure to provide payment to Crisp within 30 days of when said payment is due shall be considered a material breach of the Agreement. For the avoidance of doubt, any early cancellation and/or termination of this Agreement by the Client that is for any reason other than a non-curable material breach by Crisp shall constitute a material breach and all future payments contemplated by the Agreement shall be considered immediately due and payable in full as of the date of the breach.
Covenant not to Sue. Client provides Crisp a release and covenant not to sue Crisp for any and all reasons, related to this Agreement or otherwise.
No Beneficiary. It is understood and agreed that Client and Crisp are the sole parties to the Agreement, and the services provided pursuant to Agreement by Crisp for Client is solely for the benefit of Client.
Ambiguity. This Agreement and the Terms and Conditions herein, shall be deemed the mutual instrument of both parties, and no ambiguity shall be construed against either Crisp or Client.
Successors and Assigns. These Terms and Conditions shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives.
Governing Law. The Agreement and Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of Georgia and the United States of America. Any litigation or arbitration between the Parties shall be conducted exclusively in Atlanta, Georgia. Crisp and Client hereby consent to said jurisdiction. Client hereby waives the defense of lack of jurisdiction.
Venue. Venue for any litigation or arbitration relating to the Agreement and these Terms and Conditions shall be exclusively in courts of Fulton County, Georgia. Client agrees and consents to such venue, and Client waives any defense pertaining to venue.
Entire Agreement. These Terms and Conditions constitute the entire agreement between Client and Crisp with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral.
CRISP CONNECT TERMS OF SERVICE
The following “User License Agreement” governs your use of the software and services provided by Crisp, Inc. (“Crisp”). This is a legal agreement between you and Crisp and incorporates the Crisp Privacy Policy. By registering your use of the Service (as defined below), you are accepting to be bound to the terms of this User License Agreement.
1. Definitions
(a) “Administrator” shall mean a Subscriber (as defined in Section 1(i)) with authority to designate additional Authorized Users and/or Administrators, and commit the Subscriber to additional services from Crisp.
(b) “Agreement” shall mean this entire User License Agreement and incorporates by reference the Crisp Privacy Policy.
(c) “Authorized User” shall mean an individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
(d) “Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
(e) “Content” shall mean any information you upload or post to the Service and any information provided by you to Crisp in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients, as defined in Section 1(g).
(f) “Primary Subscriber” shall mean the Subscriber who initiated the Services offered by Crisp and is assumed by Crisp to have the sole authority to administer the subscription.
(g) “Registered Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.
(h) “Service” shall mean any software or services provided by Crisp, including but not limited to Crisp Connect, practice management software, customer relationship management (“CRM”), and client intake software.
(i) “Subscriber” shall refer to the purchaser of the Services provided by Crisp and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
(j) “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Crisp’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.
2. Limited License & Use of the Service
2.1 Subscriber is granted a non-exclusive, non-transferable, limited license to access and use the Service.
2.2 Crisp does not review or pre-screen the Content and Crisp claims no intellectual property rights with respect to the Content.
2.3 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Crisp.
2.4 Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Crisp, or any other software or service provided by Crisp.
2.5 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.6 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.7 Except for the non-exclusive license granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Crisp.
2.8 Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). It is the responsibility of the Authorized User to determine if the Service being shared is appropriate for each Registered User. Crisp reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.9 Crisp reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Crisp shall provide Subscriber with 30-days notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
2.10 Crisp reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days notice prior to any such suspension. Such notice shall be provided to you in advance by way of notification within the Service, email, or other notification method deemed appropriate by Crisp. Further, Crisp shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Crisp will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.11 Subscriber grants to Crisp a non-exclusive, royalty-free right during Subscriber’s use of the Service, to use the Confidential Information for the sole purpose of performing Crisp’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Crisp to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.
2.12 Crisp uses one code-base for all jurisdictions. Subscriber is required, using settings available within the Service, to configure the Service for its own jurisdiction and to verify that the settings meet the Subscriber’s requirements. Crisp will highlight known features that may require Subscriber review.
3. Access to the Service
3.1 Subscriber is only permitted to access and use the Service if he/she is an Authorized User or a Registered Client. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
3.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.3 The initial Administrator shall be the Primary Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
3.4 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
3.5 As between Crisp and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon Cancellation or Termination of Service as discussed in Section 8 below, Crisp shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.
3.6 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
3.7 Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
(a) any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by these Terms of Service;
(b) Crisp shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Crisp has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Crisp, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
(d) Crisp reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.
4. Confidentiality
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.2 Crisp and any third party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 6 of this Agreement, or (c) as otherwise authorized by you in writing.
5. Security and Access
5.1 Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated with the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.2 Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify Crisp upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.3 At all times, Crisp, and any third party vendors and hosting partners it utilizes to provide the Service, will:
(a) use information security best practices for transmitting and storing your Content, adhering to industry standards;
(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management; and
(c) ensure its host facilities maintain industry standards for security and privacy; and
5.4 Crisp shall report to Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Crisp reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Crisp shall make such report within 72 hours after learning of the Security Breach.
5.5 In the event of a Security Breach, Crisp shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) use commercially reasonable endeavors to mitigate any harmful effect of the Security Breach.
6. Legal Compliance
6.1 Crisp maintains that its primary duty is to protect the Content to the extent the law allows. Crisp reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If Crisp is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Crisp will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Crisp may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
7. Payment, Refunds, and Subscription Changes
7.1 Subscribers with paid subscriptions will provide Crisp with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal, or other taxes which Subscribers agree to pay based on where the Subscriber is located. Invoices will include (i) subscription fees and (ii) all applicable sales taxes, as amended from time to time, for the jurisdiction in which the Subscriber is located. In the event of updated tax rates, Crisp will apply the new tax rate without notice to the Subscriber. In addition to any fees, the Subscriber may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
7.2 Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions canceled prior to the expiration of any trial period, will not be charged. Monthly Subscribers will thereafter be charged in advance each 30 days. Annual Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
Subscribers who purchased setup or professional services, like tailored live training, customized forms and documents, or migration services, must initiate those services within sixty (30) days (“Service Window”) following their purchase. Absent a separate invoice, the date of purchase for setup or professional services will be deemed to be the initial date of entry of a valid credit card for payment as required in §7.1. Failure of the Subscriber to initiate purchased setup or professional services within Service Window will result in those services no longer being available and no refund will be issued.
7.3 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
7.4 Payment is due from Client to Crisp prior to service. The Client will be assessed a $50 non-sufficient funds fee for any returned checks or any other failed payment for any reason, including but not limited to resulting from failed ACH charges, insufficient funds, incorrect or inaccurate information, etc. In Crisp’s sole discretion, Crisp may choose to invoice Client for services after commencing performance of services, in lieu of requiring payment up front, in which case payment is due within 15 days of any invoice provided. Any payments not paid within 10 calendar days of the due date therefore, will incur a monthly penalty fee of five per cent (5%) of the outstanding balance, compounded monthly.
7.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding Authorized User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes Crisp to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
7.6 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
7.7 Subscriber is responsible for paying all taxes associated with the subscription to the Service. If Crisp has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Crisp with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.8 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Crisp receives an amount equal to the sum it would have received had no such deduction or withholding been made.
8. Cancellation and Termination
8.1 You acknowledge and agree that Crisp, in its sole discretion, may terminate your service access if your conduct is found to be unlawful, inconsistent with, or in violation of, the letter or spirit of these Terms, or for any other reason, Crisp shall not be liable to you or any third party for termination of service access. Should you object to any terms and conditions of these Terms, or to any subsequent modifications thereto, your only recourse is to immediately discontinue use of the services.
8.2 Crisp in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.
8.3 If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Crisp provides Subscriber with commercially reasonable notice of this violation; (iii) Crisp uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Crisp’s reasonable satisfaction within thirty (30) days of such notice, then Crisp reserves the right to suspend access to the Service.
9. Limitation of Liability
9.1 By utilizing the Services contemplated herein, the Subscriber understands and agrees that Crisp shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by Crisp.
9.2 SUBSCRIBER AGREES THAT THE LIABILITY OF CRISP ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT CRISP IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER CRISP HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CRISP TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
9.3 Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.
10. Disclaimer of Warranties
10.1 CRISP HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY CRISP.
10.2 Crisp makes no warranty that its services when provided to Subscriber in digital or electronic format will be compatible with Subscriber computer and/or other equipment, or that these Services will be secure or error free. Nor does Crisp make any warranty as to any results that may be obtained from the use of the Service.
10.3 Crisp hereby disclaims all warranties of any kind related to Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Subscriber’s hardware or software.
11. Indemnification
11.1 Subscriber hereby agrees to indemnify and hold harmless Crisp from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:
a. Authorized Users’ breach of any obligation stated in this Agreement, and
b. Authorized Users’ negligent acts or omissions.
Crisp will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Crisp. Crisp reserves the right to participate in the defense of the claim, suit, or proceeding, at Crisp’ expense, with counsel of Crisp’ choosing.
12. Miscellaneous
12.1 Technical support and training are available to Authorized Users with active subscriptions, and is available by telephone, email, or electronic support ticket, as provided at the sole discretion of Crisp.
12.2 Subscriber acknowledges and agrees that Crisp may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
12.3 The Services may allow you to access or use or integrate with third party providers of products and services (“Third Party Services”). Such Third Party Services are not “Services” under this Agreement and are not subject to any terms related to Services, including related warranties, indemnities, service commitments or other obligations . The availability of any Third Party Services through the Services does not imply Crisp’s endorsement of or affiliation with the provider. Access to and use of any Third Party Services are subject to the separate terms and conditions required by the providers of the Third Party Services. Crisp does not control the Third Party Services and will have no liability to Subscriber in connection with any Third Party Service. Crisp has no obligation to monitor or maintain any Third Party Service and may replace, disable or restrict access to any Third Party Service or cancel related integrations at any time, without notice. BY USING OR ENABLING ANY THIRD PARTY SERVICE, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT ANY LIABILITY AND REMEDIES RELATED TO A THIRD PARTY SERVICE IS WHOLLY GOVERNED BY THE APPLICABLE THIRD PARTY AGREEMENT AND CRISP DISCLAIMS ALL LIABILITY RELATED TO SUCH THIRD PARTY SERVICE.
12.4 Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Crisp liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Crisp, with strict business reasons, may access and transfer the Content and only to provide Subscriber with the Service. Crisp will make reasonable efforts to provide notice to Subscriber prior to such access and transfer.
12.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
12.6 This Agreement constitutes the entire agreement between Authorized Users and Crisp and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Crisp (including, but not limited to, any prior versions of this agreement).
12.7 Crisp reserves the right to amend this Agreement. In the event of material changes to the Agreement, Crisp will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new terms.
12.8 The Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Crisp. Any attempt by the Subscriber to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
12.9 Governing Law. The Agreement and Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of Georgia and the United States of America. Any litigation or arbitration between the Parties shall be conducted exclusively in Atlanta, Georgia. Crisp and Client hereby consent to said jurisdiction. Client hereby waives the defense of lack of jurisdiction.
12.10 Venue. Venue for any litigation or arbitration relating to the Agreement and these Terms and Conditions shall be exclusively in courts of Fulton County, Georgia. Client agrees and consents to such venue, and Client waives any defense pertaining to venue.
12.11 Arbitration. In the event that the parties are unable to resolve any Dispute informally, then such Dispute shall be submitted to final and binding arbitration. THE PARTIES HERETO AGREE THAT ANY AND ALL DISPUTES OR CONTROVERSIES ARISING UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, ANY OF SUCH TERMS, ANY EFFORT BY ANY PARTY TO ENFORCE, INTERPRET, CONSTRUE, RESCIND, TERMINATE OR ANNUL THE AGREEMENT AND THE TERMS AND CONDITIONS, OR ANY PROVISION AND SECTION THEREOF, AND ANY AND ALL DISPUTES OR CONTROVERSIES RELATING TO OR INVOLVING CRISP, SHALL BE RESOLVED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR IN ACCORDANCE WITH COMMERCIAL RULES OF ARBITRATIONS AS PROMULGATED BY THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH ARBITRATION INITIATED UNDER THIS AGREEMENT SHALL BE HELD EXCLUSIVELY WITHIN ATLANTA, GEORGIA. THE PARTIES HERETO AGREE THAT THE ARBITRATOR’S RULING IN THE ARBITRATION SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL OR CHALLENGE. THE PARTIES HERETO FURTHER AGREE THAT THE ARBITRATION PROCEEDINGS, TESTIMONY, DISCOVERY AND DOCUMENTS FILED IN THE COURSE OF SUCH PROCEEDINGS, INCLUDING THE FACT THAT THE ARBITRATION IS BEING CONDUCTED, WILL BE TREATED AS CONFIDENTIAL AND WILL NOT BE DISCLOSED TO ANY THIRD PARTY TO SUCH PROCEEDINGS, EXCEPT THE ARBITRATOR AND THEIR STAFF, THE PARTIES’ ATTORNEYS AND THEIR STAFF, AND ANY EXPERTS RETAINED BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION OR IN ANY OF THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION SHALL PREVENT CRISP FROM SEEKING PROVISIONAL RELIEF OUTSIDE OF ARBITRATION, INCLUDING BUT NOT LIMITED TO EQUITABLE AND/OR INJUNCTIVE RELIEF, PENDING THE ARBITRATOR’S FINAL DECISION. THE PREVAILING PARTY IN ANY SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER ALL COSTS OF ARBITRATION AND ITS REASONABLE ATTORNEY’S FEES FROM THE NON-PREVAILING PARTY.
12.12 Notice Precursor to Action. Client agrees that prior to initiating or filing any lawsuit, action, or demand for arbitration against Crisp, Client must provide written notice to Crisp’s legal counsel, via certified mail, return receipt requested, at The RAD Firm, LLC, 1785 E. Park Place Blvd. #871344, Stone Mountain, GA 30087 Attn: Robert D. Adamson, Jr, which provides notice of any issue that would be subject to such a lawsuit or arbitration. Such notice requirement shall be strictly construed, and Client’s failure to comply with such notice requirements shall constitute an irrevocable waiver of any claim or cause of action that exists or may exist. Such notice requirement shall be additional to any and all other notices required under this Agreement. Client agrees to pay Crisp’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.
