1.1 Subscriber Data. Subscriber is solely responsible for any data or content uploaded or stored on the Platform by Subscriber or any User (“Subscriber Data”). In no event shall CrisisResponsePro be responsible for the use or misuse of any Subscriber Data by Subscriber or any User or other third party. Subscriber warrants and represents that it either owns or has the right to provide all Subscriber Data.
1.2 Access to Subscriber Data. Subscriber may grant to CrisisResponsePro during the Term access to Subscriber Data for the purpose of administering the Virtual WorkRoom, organizing folders and materials and uploading Subscriber’s crisis communications plan and other materials (the “Purpose”). If such access is granted, CrisisResponsePro will use the Subscriber Data only for the Purpose and will protect the confidentiality of Subscriber Data using the degree of care that it uses to protect its own confidential information (or at least a reasonable degree of care), but in no event shall such access give rise to any obligation on the part of CrisisResponsePro other than those expressly stated in this Agreement. If Subscriber grants access to any Subscriber Data to any User or other third party, it does so at its own risk and acknowledges and agrees that CrisisResponsePro has no control over and shall have no responsibility or liability with respect to how such User or third party uses the Subscriber Data.
1.3 Ownership of Non-Subscriber Content. All right, title, and interest in and to the Platform, the Website, and all information, tools, and content on the Platform or Website, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights in any of the foregoing (collectively, “CrisisResponsePro Property”), shall be and remain the sole and exclusive property of CrisisResponsePro.
A. Resell the templates, checklists and other proprietary content provided by CrisisResponsePro as part of a crisis communications plan or related product;
B. Use the materials contained on the CrisisResponsePro website, or its business methods, systems, or proprietary architecture, to create a competing Software As A Service (SAAS) targeted at crisis and/or litigation communications or related matters; and/or
C. Appropriate the content of the StatementReady templates (by cutting and pasting the content, for example) for the express purpose of building a product using similar ideas, features or functions of the Service, whether solely for the use of the subscriber or his/her organization or for commercial purposes.
Subscriber acknowledges that damages for any breach of the terms and conditions contained above may not be an adequate remedy, and that CrisisRepsonsePro may seek injunctive and/or other relief to prevent the misappropriation of the CrisisResponsePro software or its content in violation of this agreement.
2. Fees and Payment. In consideration for the access to and use of the Platform, Subscriber shall pay CrisisResponsePro the fees set forth in the Subscription Form.
3. Term and Termination. CrisisResponsePro is a monthly subscription service according to the terms set forth on the Subscription Form. This subscription automatically renews on a month-to-month basis until terminated by the Subscriber. Subscriber shall have sixty (60) days from termination of this Agreement to request in writing that CrisisResponsePro return the Subscriber Data to Subscriber. Promptly upon such request, CrisisResponsePro will return all Subscriber Data to Subscriber in electronic form and will destroy all electronic versions of Subscriber Data under CrisisResponsePro control, except as the retention of such material is required by law. CrisisResponsePro may terminate this Agreement immediately if Subscriber breaches any of its obligations hereunder.
4. DISCLAIMERS; LIMITED WARRANTY. THE PLATFORM IS MERELY A TECHNOLOGY PLATFORM THAT ALLOWS SUBSCRIBER TO COMMUNICATE WITH USERS. IT IS NOT MEANT TO BE A SUBSTITUTE FOR SUBSCRIBER’S EXERCISE OF ITS OWN BUSINESS JUDGMENT. ANY SUCH JUDGMENTS OR DECISIONS ARE MADE AT SUBSCRIBER’S SOLE ELECTION. CRISISRESPONSEPRO IS NOT AN ADVISOR TO SUBSCRIBER, AND NONE OF THE CRISISRESPONSEPRO PROPERTY IS GUARANTEED TO AVOID, PREVENT, OR MITIGATE ANY CRISIS OR DISASTER. THE CRISISRESPONSEPRO PROPERTY IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND CRISISRESPONSEPRO DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT CRISISRESPONSEPRO MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL CRISISRESPONSEPRO OR ANY CRISISRESPONSEPRO SUBCONTRACTOR BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY USER, FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER CRISISRESPONSEPRO WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) CRISISRESPONSEPRO’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY SUBSCRIBER HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
6.2 Indemnification by Subscriber. Subscriber will defend, indemnify, and hold harmless CrisisResponsePro, CrisisResponsePro subcontractors, and their respective officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party claim that any of the Subscriber Data: (i) infringes or misappropriates any third-party intellectual property rights, privacy or publicity rights, or any other rights; or (ii) violates any applicable laws, rules, or regulations. CrisisResponsePro shall promptly notify Subscriber of the claim, provided, however, that failure to provide such notice shall not relieve Subscriber of its indemnity obligations unless it is prejudiced thereby. Subscriber shall have control over the defense of the claim, provided that (i) Subscriber does not make any admission of liability on behalf of CrisisResponsePro or agree to any settlement that imposes a financial burden on Subscriber without Subscriber’s prior written consent; and (ii) CrisisResponsePro shall have the right to participate in the defense of any such claim, at its own cost, with counsel of its choice.
7. General Provisions. Subscriber shall not assign this Agreement without the prior, written consent of CrisisResponsePro. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. This Agreement and performance hereunder shall be construed and governed by the laws of the State of New York without giving effect to conflicts of laws principles. The Parties consent and agree that any and all litigation between them arising from this Agreement or the business relationship created hereby shall take place in the state or federal courts located in New York, New York. Each Party irrevocably consents and submits to the jurisdiction and venue of any such courts. If any provision of this Agreement is deemed invalid or unenforceable, it shall be amended or replaced in the way that best reflects the original intention of the Parties, and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written. The rights and obligations of each Party expressed in Sections 1.3, 4, 5, 6, and 7 will survive expiration or termination of this Agreement.