Terms of Service

Last Updated: May 16th, 2024

Crunch Cloud Analytics, LLC (“Crunch”) provides use of its online web-based analytics technologies specified in the applicable order form (collectively, “Subscription Services”) to you subject to the following Terms of Service (“Terms”). In addition, when using the Subscription Services, Customer shall be subject to the End User Terms (where applicable) and the Privacy Policy referred to in the Order Form. All such guidelines, rules or terms are hereby incorporated by reference into the Terms.

1. PURCHASED SUBSCRIPTION SERVICES

1.1 Provision of Purchased Subscription Services. Crunch will make any purchased Subscription Services available to Customer pursuant to these Terms and the relevant order form, statement of work or similar document incorporating these Terms (“Order Form”) during the subscription term set forth in the Order Form and including any renewal periods if applicable pursuant to the Order Form (the “Subscription Term”). Each Order Form and the Terms together constitute an “Agreement”). In the event of any conflict or inconsistency between the Terms and the Order Form, the terms of the Order Form shall prevail and take precedence. Customer agrees that its purchase of Subscription Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Crunch regarding future functionality or features. Customer’s use of the Subscription Services includes the right to access all functionality available in the purchased Subscription Services as of the effective date of this Agreement or such other date expressly specified date in the Order Form. Unless otherwise determined by Crunch at its sole discretion, subsequent enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge. Notwithstanding the foregoing, new features, functionality or enhancements to the Subscription Services may be marketed separately by Crunch and may require the payment of additional fees. Crunch will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee. Unless otherwise set forth in an Order Form, this Agreement will apply to any updates, upgrades and new modules or offerings subsequently provided by Crunch to Customer as part of any purchased Subscription Services.

2. SUBSCRIPTION SERVICES

2.1 Crunch Obligations; License Grant.

2.1.1 Crunch shall comply with the Service Levels set out in the Order Form.

2.1.2 Internal Use License to use Subscription Services. During the Subscription Term, Crunch hereby grants Customer’s employees, consultants, contractors, or agents who are authorized by Customer or its Affiliates to access and use the Subscription Services and who have been supplied user identifications and passwords by Customer for such purposes (“Internal Users”), a non-exclusive, revocable, limited internal use license to access and use the Subscription Services.

2.1.3 Third-Party Use License to use Subscription Services. During the Subscription Term, Crunch hereby grants Customer’s customers that are specifically indicated in the Order Form, for whom the Customer has created data (“Data Created by Customer for a Third-Party”), who are authorized by Customer or its Affiliates to access and use the Subscription Services, and who have been supplied user identifications and passwords by Customer for such purposes (“Third-Party Users”) a non-exclusive, revocable limited view-only license to access and use the Subscription Services solely to access and analyze the Data Created by Customer for Third-Party Users.

2.1.4 Updates and Limitations. Crunch will host the Subscription Services and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing improvement of the Subscription Services. Unless otherwise agreed in writing and except as set forth in section 1.1, the Subscription Services shall be made available to the Customer as it makes generally commercially available to other Clients and may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data (as defined below).

2.2 Use and Protection of Customer Data. As between Crunch and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials uploaded to the Subscription Services by it and its Users (“Customer Data”). Crunch will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. Notwithstanding the foregoing no security system is entirely immune to breaches, unauthorized access, or cyber threats and Crunch makes no warranties or representations regarding the security of the Customer Data. Crunch shall not be liable for any loss, damage, or corruption of Customer Data stored or transmitted through the Customer’s use of the Subscription Services and the Customer is solely responsible for implementing and maintaining appropriate backup procedures for the Customer Data.

2.3 Customer’s Responsibilities; License Restrictions and Platform Limitation.

2.3.1 Customer and Users. Customer shall be responsible for ensuring that its Internal Users and Third-Party Users (collectively “Users”) put in place appropriate safeguards to protect the Subscription Services and their account passwords. Customer shall not permit access to or use of the Subscription Services by anyone except designated Users. Customer is responsible for its Users’ compliance with the terms of this Agreement and any applicable terms of use in respect of its Users’ use of the Subscription Services. Customer agrees that it is liable for any acts or omissions of its Users (including with respect to unauthorized data uploads).

2.3.2 Restrictions. Customer understands that all Customer Data, whether publicly posted or privately transmitted, are the sole responsibility of the Customer. By uploading Customer Data to Subscription Services, Customer affirms that Customer is authorized to do so. This means that Customer, and not Crunch, is entirely responsible for all Customer Data that Customer and/or its Users uploads, downloads, posts, emails, transmits or otherwise makes available for use via the Subscription Services. Customer shall not, and shall ensure its Users shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Subscription Services or make the Subscription Services available to any third party, other than to Users or as otherwise authorized under this Agreement; (b) use the Subscription Services to collect, transmit or process any material that is infringing, obscene, threatening, libelous, or otherwise unlawful or tortious, including material that is harmful to children or violates third party privacy rights; (c) use the Subscription Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (d) interfere with or disrupt the integrity or performance of the Subscription Services; (e) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (f) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (g) access the Subscription Services for the purpose of building a similar or competitive product; or (h) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services.

2.3.3 If during the Subscription Term the Customer undergoes a corporate restructure (including without limitation a change of control, merger or acquisition), which Crunch considers impacts the Agreement and/or the Subscription Services, Crunch may, at its sole discretion, suspend or terminate the access to the Subscription Services.

2.4 Temporary Suspension. Crunch monitors all use of the Subscription Services for security and operational purposes. Crunch may suspend, temporarily, Customer’s or its Users’ access to the Subscription Services in the event that either Customer or its Users are engaged in, or Crunch in good faith suspects Customer or its User is engaged in, any unauthorized conduct (including any violation of this Agreement, any applicable law or third-party right, including the terms of any Third Party Offering on which Customer’s use of the Subscription Services relies). Crunch will use reasonable efforts to attempt to notify Customer prior to or contemporaneously with such suspension; provided, however, that Crunch’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. Customer agrees to: (a) notify Crunch immediately of any unauthorized use of any password or account or any other known or suspected breach of security related to the Subscription Services; (b) report to Crunch immediately, and use reasonable efforts to immediately stop, any copying or distribution of Customer Data that is known or suspected by Customer or its Users as being unlawful or unauthorized; and (c) not impersonate another User or provide false identity information to gain access to or use the Subscription Services. A suspension may take effect for Customer’s entire account, and Customer understands that such suspension would therefore include Affiliate and/or User accounts. Customer agrees that Crunch will not be liable to Customer or to any Affiliate or User or any other third party if Crunch exercises its suspension rights as permitted by this Section.

2.5 Third Party Web Sites, Products and Services. The Subscription Services may rely on, or require, Customer accessing services provided by third parties (“Third Party Offerings”). Customer’s or its User’s use of Third Party Offerings must at all times comply with the applicable terms governing the same. Customer understands and agrees that the availability of the Subscription Services, or certain features and functions thereof, is dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. Crunch will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability of the Subscription Services or any feature or function thereof.

2.6 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Crunch to communicate with Customer from time to time regarding the Subscription Services, issue invoices or accept payment, or contact Customer for other purposes related to this Agreement. Customer agrees to keep any online account information current and inform Crunch of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Crunch at the e-mail address specified by its Users for login purposes. In addition, Customer agrees that Crunch may rely and act on all information and instructions provided to Crunch by Users from the above-specified e-mail address. Crunch may, in its discretion, share Customer contact information with third party service providers for the purposes of providing information about maintenance schedules, or Subscription Service releases or configurations. If Customer chooses to opt-out of such messages, or does not register to receive Support communications, Crunch shall not be responsible for any issues, errors, defects in the Subscription Services that could have been avoided by Customer acts on such messaging.

3. FEES AND PAYMENT TERMS

3.1 Fees. Customer agrees to pay all fees specified in all Order Forms using an industry-standard payment method Crunch supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Subscription Services purchased, regardless of usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the Services purchased cannot be decreased during the relevant Subscription Term. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.

3.2 Invoices and Payment. All Subscription Services fees will be invoiced in advance unless otherwise set forth in the applicable Order Form. Fees for fee-based implementations, training or other consulting services that Crunch may perform where specified in an Order Form (“Ancillary Services”) will be invoiced as set forth in the applicable Order Form. Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

3.3 Overdue Charges. If Crunch does not receive fees by the due date then, at Crunch’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

3.4 Suspension of Service. If any amounts owed by Customer for the Subscription Services are overdue, Crunch may, without limiting Crunch’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.

3.5 Payment Disputes. Crunch agrees that it will not exercise its rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service) if Crunch determines that the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the dispute.

3.6 Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Crunch’s provision of the Services hereunder, except any taxes assessed on Crunch’s net income. If Crunch is required to directly pay Taxes related to Customer’s use of the Subscription Services or receipt of any Ancillary Services hereunder, Customer agrees to promptly reimburse Crunch for any amounts paid by Crunch.

4. PROPRIETARY RIGHTS

4.1 For the purposes of this Agreement, “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.

4.2 Subscription Services. Crunch, its licensors and its service providers own all right, title and interest in and to the Subscription Services, including all related Intellectual Property Rights. Crunch reserves all rights not expressly granted to Customer under this Agreement. Neither Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of Crunch appearing on the Subscription Services or any portion thereof. Additionally, Crunch shall exclusively own all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Users relating to the Subscription Services (“Feedback”), and Customer hereby assigns to Crunch all its right, title, and interest in and to the Feedback, including all Intellectual Property Rights therein or relating thereto. At Crunch’s reasonable request and expense, Customer will execute necessary documents and take such further acts as Crunch may reasonably request to assist Crunch to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.

4.3 Customer Data. As between Crunch and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. The Customer hereby grants to Crunch a non-exclusive license to use the Customer Data for purposes of performing its rights and obligations under this Agreement. Customer Data is deemed Confidential Information under this Agreement. Crunch does not review Customer Data unless specifically agreed by Crunch in writing.

4.4 Statistical Information. Crunch may monitor Customer’s use of the Services and use data related to Customer’s use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that Crunch may make such aggregate and anonymous information publicly available, provided that such information does not identify Customer or its Confidential Information. Crunch retains all Intellectual Property Rights in such statistical and performance information.

5. DATA PROTECTION

5.1 Other than for the names, e-mails addresses and IP addresses of Users who access the Subscription Services which are processed by Crunch as a data controller to manage business relations with the Customer and manage access to the Subscription Services, the Customer agrees not to upload, store, or transmit any personal data (as defined by applicable data protection laws and regulations, including but not limited to the General Data Protection Regulation (GDPR)) to the Subscription Services unless explicitly permitted by Crunch in writing. The Customer acknowledges that the Subscription Services are not intended for the storage or processing of personal data and agrees to refrain from using the service for such purposes.

5.2 The Customer shall indemnify, defend, and hold harmless Crunch, its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with the Customer or its Users’ uploading, storage, or transmission of personal data to the Subscription Services in violation of this agreement. This indemnification obligation shall survive the termination or expiration of this Agreement.

6. CONFIDENTIALITY

6.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information, documents, data and other materials relating to any business of a party which is not generally available or accessible to the public through lawful means (hereinafter referred to as “Confidential Information” of the Disclosing Party).

6.2 Treatment of Confidential Information. The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information except to give access to such Confidential Information solely to those employees and representatives with a need to have access for purposes of performing its rights and exercising its obligations under this Agreement; and (ii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can demonstrate: (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (b) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information required by law, regulator or other competent authority or body, provided that, where legally permitted, the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. The obligations of confidentiality set out herein shall survive the termination or expiration of this Agreement.

6.3 Disclosure of Existence of this Agreement. Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement (including the commercial provisions), unless such disclosure is approved in writing by both parties prior to such disclosure, or is or is required by law, regulator or other competent authority or body (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.

7. WARRANTY DISCLAIMER

THE SERVICES, CRUNCH CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED BY CRUNCH UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. CRUNCH HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM ITS USE OF THE SUBSCRIPTION SERVICES AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CRUNCH SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO CRUNCH BY THE CUSTOMER IN CONNECTION WITH THE SUBSCRIPTION SERVICES, OR ANY ACTIONS TAKEN BY CRUNCH AT THE CUSTOMER’S DIRECTION.

8. INDEMNIFICATION

8.1 Indemnification by Crunch. Crunch shall defend Customer and its directors, employees, and agents against any claim or lawsuit made by an unaffiliated third party (a “Claim”) against Customer to the extent such Claim alleges that the Customer’s use of the Subscription Services in accordance with this Agreement infringes upon a third party’s Intellectual Property Rights of such third party, and will indemnify Customer for all judgments finally awarded against Customer by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Crunch arising out of such Claim. Crunch shall have no obligation or liability for any Claim of infringement arising from (a) use of the Subscription Services other than in accordance with this Agreement; (b) modification of the Subscription Services by anyone other than Crunch or its representatives; (c) combination of the Subscription Services with any other products, services, or materials; (d) failure by Customer to use updates to the Subscription Services made available by Crunch; or (e) the Customer’s use of the Subscription Services after it has received notice of the alleged or actual infringement. If Crunch at its sole discretion believes Customer’s use of the Subscription Services may result in a Claim, then Crunch may, at its sole option and expense and as Customer’s sole remedy: (i) procure for Customer a license to continue using the Subscription Services in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing part of the Subscription Services to avoid the infringement; or (iii) terminate the Agreement, and refund any Fees paid in advance and relate to future Subscription Services which will not be provided to the Customer due to the Agreement’s termination.

8.2 Indemnification by Customer. The Customer shall defend, indemnify and hold harmless Crunch against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Subscription Services, including, but not limited to, any administrative, investigatory or enforcement action or fine instituted by a government agency pertaining to Customer Data.

8.3 Conditions. The indemnification obligations set forth in Section 8 shall apply only if: (i) the indemnified party notifies the indemnifying party in writing of a Claim promptly upon learning of or receiving the same; (ii) the indemnified party provides the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense, for the defense and settlement, if applicable, of any Claim; and (iii) the indemnified party provides the indemnifying party with the exclusive right to control and the authority to settle any Claim.

9. LIMITATION OF LIABILITY

9.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, NOR FOR LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CRUNCH HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

9.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF CRUNCH TO THE CLIENT UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS OR (ii) THE FEES PAID TO CRUNCH HEREUNDER IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE IN WHICH THE CLAIM AROSE.

10. TERM AND TERMINATION

10.1 Term. Subject to earlier termination as provided below, this Agreement is for the Subscription Term.

10.2 Termination. Either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party: (a) commits any material breach of the Agreement which cannot be remedied, or commits any material breach of the Agreement which can be remedied and fails to remedy that breach within 30 days after receipt of written notice; or (b) enters into liquidation, whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation), or if it suffers any analogous process in any jurisdiction.

10.3 In addition, Crunch may terminate this Agreement with immediate effect by giving written notice to the Customer if: (i) association with the Customer is (in Crunch’s reasonable opinion) likely to bring Crunch into disrepute; or (ii) in Crunch’s reasonable opinion, the Customer or any of its affiliates is or becomes a competitor of Crunch.

10.4 On termination of this Agreement for any reason: (a) all licenses granted by Crunch under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Subscription Services; (b) Crunch reserves the right to delete the Customer Data, at Crunch’s sole discretion, provided that Customer shall have the right to download the Customer Data prior to termination; (c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced; and (d) any provisions which by their nature are intended to survive termination, including, but not limited to, those relating to confidentiality, limitation of liability, and indemnification, shall survive termination.

11. GENERAL

11.1 Relationship. Crunch and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.

11.2 Entire Understanding; Modifications. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, oral or written, regarding the subject matter covered by this Agreement. Except as set forth in this Agreement, no modifications, amendments or waivers shall be effective unless mutually agreed by the parties in writing. To the extent of any conflict or inconsistency between the provisions of these Terms and any Order Form, the terms of such Order Form shall prevail, but only with respect to the specific Subscription Services or Ancillary Services purchased under such Order Form. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.3 Waiver. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement.

11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision shall be modified and interpreted by the court so as best to accomplish the intent of the original provision to the fullest extent possible. The invalidity or unenforceability of any provision shall not affect any of the other provisions of this Agreement.

11.5 Publicity. Crunch may reference and use Customer’s name and trademarks and may disclose the nature of the Services provided hereunder in Crunch business development and marketing efforts, including without limitation on its web site.

11.6 Assignment. Customer may not assign this Agreement to any third party without the prior written consent of Crunch. Crunch may assign the Agreement in connection with a merger, acquisition, or similar transaction involving all or substantially all of its assets, or as part of a group reorganization or similar corporate transaction. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement.

11.7 Subcontracting. Crunch may subcontract performance of the Subscription Services to suitably qualified subcontractors but remains primarily liable for their performance.

11.8 Notices. Notices or any other communications required or permitted under this Agreement shall be given in writing, in English, and delivered by (a) hand in person to the registered address of a party, or (b) e-mail followed by a registered mail (return receipt requested) to the email address given in the Order Form, or (c) international reputable courier delivery to the registered address of a party. Crunch may elect, at its own discretion, to give notice to Customer by means of a general notice through the Subscription Services interface, instead of by the means described herein.

11.9 Force Majeure. Except for performance of a payment obligation, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate this Agreement for convenience upon written notice to the other party.

11.10 Governing law and jurisdiction. The governing law and venue for resolution of any dispute arising under this Agreement will be as follows: