Master Services Agreement

The terms and conditions of this MASTER SERVICES AGREEMENT (“MSA”), together with the terms set forth on any Statement of Work (“SOW”) or similar document that contains a reference to this MSA, constitute a legally binding and enforceable agreement (the “Agreement”) by and between the person or entity executing the SOW (“Client”). The terms of this MSA shall govern Client’s access to the Services made available by JC FullFunnel LLC or its applicable affiliates (collectively, “JumpCrew”). The terms of this MSA shall be deemed incorporated by reference into each SOW. All capitalized terms used herein shall have the respective meanings ascribed to them in this MSA or related SOW, as applicable.

RECITALS

WHEREAS, JumpCrew provides certain outsourced sales and marketing services (“Services” and as defined below) and Client desires to engage JumpCrew to render such Services to Client as described in this Agreement and any Statement(s) of Work referencing this Agreement and incorporated herein by reference; and

WHEREAS, JumpCrew provides the Services subject to the terms and conditions stated in this Agreement and any applicable Statement of Work.

NOW THEREFORE, in consideration of the mutual benefits, agreements, covenants and promises herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

1. Definitions

1.1. “Agreement” means this Master Services Agreement entered into between JumpCrew and Client, together with any and all appendices, addendums, exhibits, schedules and other attachments hereto, including the specific Statement(s) of Work referencing this Agreement.

1.2. “Client Materials” means all Client Confidential Information, any documentation, information, data and materials provided by Client to JumpCrew, and all Intellectual Property and Intellectual Property Rights in and to any of them as well as all nonpublic personal information provided by Client, except to the extent including or constituting any JumpCrew Material or any Derivation of any JumpCrew Material or other Intellectual Property of JumpCrew or any of its affiliates.

1.3. “Deliverables” means the work product, documents, and other materials that are developed, prepared or generated by JumpCrew (or JumpCrew’s contractors) on behalf of Client pursuant to an applicable Statement of Work that are specified as “Deliverables” under such Statement of Work. For the avoidance of doubt, the Deliverables will not include any JumpCrew Intellectual Property (other than to the extent licensed under this Agreement). 

1.4. “Derivation” means any derivative work, improvement, modification, enhancement, customization, adaptation, or derivative of any kind of or to, from, or based on the original property, right, or item.

1.5. Documentation” means JumpCrew-created user guides and manuals, handbooks, training materials, and all other printed or electronic materials relating to or describing the use of the Services and provided by JumpCrew to Client, including, without limit, the Playbook.

1.6. “Intellectual Property” means all ideas, processes, methods, concepts, systems, procedures, and inventions (whether patentable or not), works, software, computer programs, source code, object code, user interfaces, user experiences, mask works, trade secrets, know-how, data, databases, and confidential, proprietary, and other information, and other forms of intellectual property.

1.7. “Intellectual Property Rights” means all patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models and re-issues), patent applications, copyrights (including all registrations and applications therefor), copyright applications, service marks, trademarks, trade names, trade dress, trademark applications and other proprietary and intellectual property rights, including trade secrets and moral rights. 

1.8. “JumpCrew Material” means all JumpCrew Confidential Information, all Documentation, and all Intellectual Property and Intellectual Property Rights in and to any of them, which defined term also specifically includes JumpCrew’s affiliates’ Confidential Information, Documentation, and all Intellectual Property and Intellectual Property Rights in and to any of them.

1.9. “Playbook” means JumpCrew’s proprietary methodology and catalog of Client’s business processes, marketing strategies, and quantified results compiled through the provision of Services, which may further include scoring algorithms, software and methodologies.

1.10. “Services” means the specific services provided to Client by JumpCrew as JumpCrew and Client may from time to time agree upon as described in any Statement(s) of Work. 

1.11. “Statement of Work” means any and each document so named and from time to time prepared by JumpCrew and accepted by Client, and referencing this MSA, indicating (i) the Scope of Services to be performed by JumpCrew pursuant to this Agreement, (ii) the Deliverables to be delivered in connection with such Services, (iii) the schedules, fees and expenses for such Services, and (iv) any additional terms or conditions applicable to the foregoing. 

1.12. “Staffing Lapse” means a significant lapse in the provision of Services due to the voluntary or involuntary removal of a JumpCrew employee from the Client’s account that materially affects the provision of Services or Deliverables as further described in Section 4.2.

2. JumpCrew Services

2.1. Services. JumpCrew will provide the Services on a project-by-project basis to Client as expressly described herein and in any Statement(s) of Work referencing this Agreement. Unless otherwise agreed in writing, the terms and conditions set forth in this Agreement will govern the Parties’ rights and obligations with respect to any and all Services and Deliverables provided by JumpCrew during the Term of this Agreement.

2.2. Change Orders. Any change to a Statement of Work shall require written consent of both Parties. For any such changes requested by Client, Client may request the addition, deletion or change to the Services described in any Statement of Work at any time by its delivery to JumpCrew of a written notice or request (a “Change Order”), in such form as JumpCrew may deem appropriate. Upon Client’s submission of any such Change Order, or in the event of any change to a Statement of Work proposed by JumpCrew, JumpCrew will provide Client with a written proposal specifying the feasibility of the proposed changes, and the likely impact such changes would have on the terms and conditions specified in the original Statement of Work, including any additional fees, charges and costs which JumpCrew may impose as a condition to its willingness to accept the Change Order, and any anticipated delays in the then-current project schedule or timeline. If the proposal provided by JumpCrew meets Client’s approval, then the proposal will become a new Statement of Work, to be numbered in chronological order (e.g., a Statement of Work No. 2), and when signed by each of the Parties will replace and supersede the previous Statement of Work in the manner expressly specified in the revised and subsequent Statement of Work. Each Party will thereafter be bound by the additional performance and payment obligations specified therein. Notwithstanding the foregoing, if the proposal provided by JumpCrew does not meet with both Parties’ approval, then the original Statement of Work will continue to be performed by the Parties. Unless expressly agreed upon in writing by JumpCrew, any offer of Services to be provided under a Change Order or Statement of Work is revocable at any time by JumpCrew prior to written acceptance by Client. 

3. Setup Period and Client Materials

3.1. Client Materials. Client acknowledges that JumpCrew’s ability to provide the Services successfully requires cooperative efforts by both Parties and is dependent on Client providing complete, timely, and accurate information to JumpCrew. Upon the execution of this Agreement, Client will provide all requested information, materials, and data (the “Client Materials” as defined in Section 1) reasonably requested by JumpCrew for the purposes of providing the Services herein within two (2) weeks of the Effective Date or the Start Date (as defined in Section 5, and collectively, the period in which Client Materials are to be provided by Client, “Setup Period”). Client will respond promptly to any JumpCrew request to provide Client Materials, and any approvals, decisions, or authorizations that are reasonably necessary for JumpCrew to provide the Services within the Setup Period.

3.2. Creation of Client Materials. Where Client Materials provided by Client are incomplete or inaccurate, JumpCrew may request that Client review and approve JumpCrew created assumptions or work-arounds as proposed by JumpCrew. Additionally, and notwithstanding the foregoing, if Client does not provide any requested Client Materials within the Setup Period, JumpCrew may create Client Materials at Client’s sole expense (to be invoiced as a one-time charge on the next monthly invoice) so that JumpCrew can timely provide the Services. In such event, JumpCrew will provide Client with written notice prior to the end of the Setup Period and will specify the course of action JumpCrew intends to follow, including the creation of Client Materials by JumpCrew, if JumpCrew does not receive a timely response from Client by the end of the Setup Period. JumpCrew may follow the described course of action in the absence of a timely response from Client. 

4. Price and Payment for Services

4.1. Compensation for Services. Client shall pay JumpCrew for all Services performed under this Agreement and all associated fees and expenses as set forth on a corresponding Statement of Work, including, but not limited to: (i) initial fees required for JumpCrew to begin work, (ii) monthly fees for the Services, and (iii) Success Fees (as defined in the Statement of Work, and collectively, “Fees”). Initial Fees are due on the Effective Date or Start Date, as set forth in the applicable Statement of Work. Monthly Fees for professional services shall be paid in accordance with the fees and rates set forth in the applicable Statement of Work, and all other Fees (including Success Fees) are owed and payable when invoiced . Fees are owed and payable upon Client’s receipt of an invoice.  All payments shall be past due one (1) day after the date of the invoice. Prior to the provision of Services, Client will provide JumpCrew with all necessary payment information to facilitate and process payment. If Client chooses to pay the Fees by ACH (JumpCrew’s preferred payment method) or by credit card, Client expressly agrees that all Fees will be automatically drawn from the account provided, and as applicable, Client authorizes JumpCrew to charge Client’s credit card on a monthly basis at the start of each billing period for the Fees. For clarity, and notwithstanding anything herein to the contrary, for all ACH or credit card payments, as applicable, JumpCrew will charge Client for the applicable Fees when due (i.e., on the date of the invoice). Payments processed by credit card will incur a three percent (3%) processing fee. If any payment is not received by JumpCrew in accordance with invoice due date(s), all such delinquent or late payments shall accrue interest at a monthly rate equal to the greater of: (i) one and half percent (1.5%) of the unpaid Fees for the applicable invoice from the due date of such invoice until the date JumpCrew receives payment of all late Fees, or (ii) at the highest amount permitted by applicable law. In such event of nonpayment, and without affecting Client’s payment obligations, JumpCrew further reserves the right to suspend or terminate the Services until all Fees and applicable charges are paid in full. JumpCrew shall be entitled to recover from Client all legal and collection costs (including reasonable attorney fees) incurred by JumpCrew in connection with its enforcement of the payment provisions of this Agreement.

4.2. Staffing Lapse. Client acknowledges and agrees that the Services provided hereunder are subject to JumpCrew’s staffing availability and that while JumpCrew will source service-oriented and qualified support personnel to work on the Client’s projects, the Services may be affected if there is a Staffing Lapse. In the event of a Staffing Lapse, JumpCrew will work diligently to resolve the issue and to minimize any effect on Client and to resume the provision of Services as soon as practicable. Notwithstanding the foregoing, Client’s sole and exclusive remedy for a Staffing Lapse is as set forth herein. If JumpCrew is unable to resolve a Staffing Lapse within fifteen (15) consecutive business days (a “Lapse Period”), JumpCrew will, at its own expense, and subject to the terms set forth herein, provide a service credit to Client in the form of an extension of the service period by an additional number of days that is equal to the number of days that the Staffing Lapse continues after the Lapse Period has ended. If Client is entitled to receive a service credit for a Staffing Lapse, Client must request such service credit in each instance, and such service credits shall then be credited to Client’s account and the additional days to the Term will be documented by a Change Order, as set forth in Section 2.2 above. If Client has not requested the service credits within thirty (30) days after the occurrence of the applicable Staffing Lapse, then Client shall have waived the right to receive service credits for such Staffing Lapse. In no event will JumpCrew refund any Fees paid as a result of a Staffing Lapse and the foregoing availability of service credits shall be the Client’s sole and exclusive remedy and JumpCrew’s sole and exclusive obligation for a Staffing Lapse.

4.3. Taxes, Duties and Shipping Costs. Prices do not include taxes and related charges (however designated), and Client agrees to pay all applicable sales, use, services, value-added, consumption or other taxes arising or that become due in connection with Client’s purchase of the Services (except for any taxes or fees assessed upon JumpCrew’s personal property or net income). All tax amounts will be listed on Client’s invoices. If Client is entitled to an exemption from any applicable taxes, Client is responsible for presenting JumpCrew with a valid exemption certificate. JumpCrew will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Services billed by JumpCrew to Client following JumpCrew’s receipt of such exemption certificate. 

5. Term and Termination

5.1. Term. The terms and conditions of this Agreement shall be effective on the Effective Date. The term of this Agreement will be for the period set forth in the applicable SOW (“Term”). The Term will begin on the date that JumpCrew actually begins providing Services and will end on the twelve (12) month anniversary (“Start Date”). The Start Date will be set forth in the Statement of Work and may differ from the Effective Date in the event that the Parties agree that JumpCrew will begin to provide the Services at a delayed date following the Effective Date. Except as otherwise set forth in a Statement of Work, this Agreement together with each applicable Statement of Work may be renewed for successive one-year renewal Terms unless either party provides written notice of non-renewal at least thirty-one (31) days prior to the expiration of the then-current Term (“Renewal Term”). In the event of any Renewal Term, unless otherwise agreed to in writing by the Parties, the terms and conditions of this Agreement will apply and control over any such Renewal Term. Additionally, and without necessity of any action on behalf of JumpCrew or the Client, JumpCrew may at its sole discretion implement a rate adjustment of the Fees not to exceed either five percent (5%) or the increase in the Consumer Price Index measured by the Bureau of Labor Statistics over the preceding 12-month period, to commence at the start of any Renewal Term following an Initial Term.

5.2. Termination by JumpCrew. JumpCrew may terminate this Agreement, immediately in the event Client: (i) fails to pay an invoice when due, (ii) uses the Services in a manner not authorized by this Agreement, any Statement of Work, or in violation of any applicable law, (iii) commits a breach of this Agreement and fails to remedy that breach within fifteen (15) days of receipt of written notice of such breach, or (iv) for convenience. In the event of Client’s breach, and without affecting JumpCrew’s termination rights or Client’s payment obligations, JumpCrew further reserves the right to suspend the Services until any such breach is cured by Client.

5.3. Termination by Client. In the event of JumpCrew’s material breach of this Agreement, Client will have the right, after providing at least thirty (30) days prior notice stating the alleged failure(s) of JumpCrew, and JumpCrew’s failure to cure the breach within such thirty (30) day period, to terminate any applicable Statement of Work and/or this Agreement as its exclusive remedy and without liability to JumpCrew other than the payment of Fees and charges due JumpCrew for Services through the date of termination. Additionally, Client may terminate as expressly set forth in an applicable Statement of Work. If Client terminates for any reason other than JumpCrew’s material breach, Client shall, in addition to all other monies due and payable to JumpCrew, pay as liquidated damages all unpaid portions of the remaining Fees otherwise anticipated and quoted under this Agreement and any Statement of Work through the end of the applicable Term (“Termination Fee”).

5.4. Termination for other Reasons. Either Party may terminate this Agreement, and/or any Statement of Work upon thirty (30) days written notice to the other Party:  if the other Party (i) becomes insolvent; (ii) fails to pay its debts or payment obligations under this Agreement; or, (iii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof. Notwithstanding anything herein to the contrary, if the Term for any Statement of Work extends beyond the expiration of the Term of this Agreement, then this Agreement will continue in effect until the expiration or termination of the applicable Statement of Work Term, but only as to the Statement of Work so affected, and subject to the termination rights of JumpCrew and Client under this Agreement.

5.5. Effect of Termination. Upon any termination pursuant to this Section 5 and subject to the terms and conditions set forth herein, (i) all rights and access to the Services under the Agreement will terminate (including access to Confidential Information); (ii) JumpCrew will send Client a final invoice and Client will pay JumpCrew for all Fees owed and payable through the date of termination, including the Termination Fee; and (iii) each Party shall return or destroy (at the requesting Party’s option) all Confidential Information of the other Party in its possession.

6. Confidential Information and Data Security

6.1. Confidential Information. During the Term, and for a period of three (3) years thereafter (except with respect to trade secrets, which shall be held in confidence for so long as they constitute trade secrets pursuant to the applicable law), each Party and its affiliates, directors, officers, employees, authorized representatives, agents and advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other Party’s proprietary business procedures, products, services, operations, marketing materials, policies or plans, financial information, price guidelines, discount schedules, methods, processes, know how, inventions, techniques, programs, schematics, data, technical and non-technical information, software, software source documents, trade secrets, intellectual property, proprietary information, customer or supplier lists, customer information and any other such information received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such Party, including without limitation, JumpCrew Material and Client Materials (collectively, “Confidential Information”), provided, however, that either Party may share Confidential Information of the other Party with its officers, employees or representatives as necessary in connection with the performance by that Party of its obligations arising hereunder. The receiving Party shall hold Confidential Information in strict confidence and will safeguard disclosure of Confidential Information to the same extent that the receiving Party safeguards its own Confidential Information, but in any case will at minimum use commercially reasonable care. Notwithstanding the foregoing, JumpCrew is hereby authorized to disclose Client’s Confidential Information to JumpCrew’s contractors and service providers who need access to such Confidential Information to deliver the Deliverables. Upon request of the disclosing Party, the receiving Party will promptly return to the disclosing Party, or destroy, certifying in writing to the disclosing Party the destruction of such, the Confidential Information of the disclosing Party.

6.2. Exclusions from Definition of Confidential Information. The following information shall not be considered “Confidential Information” for the purposes of this Agreement: information which (i) is or becomes publicly known without any fault of or participation by the receiving Party or its representatives; (ii) was in the receiving Party’s possession prior to the time it was received from the disclosing Party or came into the receiving Party’s possession thereafter, in each case lawfully obtained from a source other than disclosing Party or its representatives and not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial arbitral or governmental order or process or operation of law, in which event the receiving Party will, unless prohibited by law, notify the disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the disclosing Party; or (iv) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information. 

6.3. Data Security. JumpCrew shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Services and the confidentiality of Client Materials from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage in accordance with its Data Protection Policy, available at: https://jumpcrew.com/data-protection-policy/ and its Privacy Policy, available at: https://jumpcrew.com/privacy-policy/ (the terms and conditions of such policies are fully incorporated into this Agreement by reference herein), and shall ensure that all such safeguards, including the manner in which Client Materials is accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection laws and regulations, as well as the terms and conditions of this Agreement; and (ii) access and use the Client Materials solely to perform its obligations in accordance with the terms of this Agreement and as otherwise expressly permitted in this Agreement (collectively, “Security Program”). JumpCrew shall at its own expense use commercially reasonable efforts to contain and remedy any Security Breach (as defined in the Data Protection Policy) to the extent that the remediation is within JumpCrew’s reasonable control, including to comply with all applicable laws. During the term of this Agreement, JumpCrew will maintain commercially reasonable insurance coverage that will include, at a minimum, technology errors and omissions and/or cyber liability insurance including both first and third party coverage with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate.

6.4. Third Party Data. Client acknowledges and agrees that the Services provided by JumpCrew may include data from third parties. Third-party providers are third-party beneficiaries of JumpCrew’s rights and remedies under this Agreement. Client agrees to comply with all applicable third-party provider terms and JumpCrew will provide and pass on any such third-party provider terms to Client as applicable. Client is responsible for any and all costs and fees associated with JumpCrew’s use of any such third-party data. If a third-party provider ceases to make its service available to JumpCrew or requires JumpCrew to suspend or terminate the provision of all or any part of its Services to Client, or if JumpCrew terminates its arrangements with the third-party provider, then JumpCrew may suspend or terminate that part of its data or Services immediately without notice or further obligation to you. Except where Client has entered into a written agreement directly with a third-party provider, Client has no contract with any third-party provider in respect of the supply or use of any third-party data or services. Third-party providers do not warrant that the provision of their data will be uninterrupted, error free, timely, complete, or accurate, nor do any of them make any warranties as to the results to be obtained from use of the same. Client expressly agrees that third-party providers will not in any way be liable to Client or any other entity for any inaccuracies, errors, omissions, delays, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of the third-party data contained in JumpCrew’s Services.

7. Intellectual Property Rights and License

7.1. JumpCrew Material.  All ownership, rights, title, and interest in and to any JumpCrew Material, together with any Derivations of any JumpCrew Material (including Client oral or written suggestions, recommendations, ideas, or feedback relating to the JumpCrew Material), whenever, wherever, or by whomever developed, created, discovered, or acquired are, shall be, and will remain, as between Client and JumpCrew, owned solely and exclusively by JumpCrew.  Statistical information derived from Client’s or other third parties’ use of the Services is JumpCrew Material.  Nothing in this Agreement or any Statement of Work will be deemed to assign, convey, transfer, or grant any right, title, interest, ownership, license, or claim of any kind in, to, or under any JumpCrew Material or Derivations of any JumpCrew Material, either in whole or in part, to Client, any Client personnel, or any third party.  Any Derivation of JumpCrew Material, regardless of medium, created, discovered, or developed by JumpCrew and/or Client or any Client personnel (including in violation of Section 7.3 or Section 7.5 below), or any third party, or any other Intellectual Property using, utilizing, based on, with reference to, or in connection with any JumpCrew Material, including, without limitation, any contribution by Client or Client personnel to any Derivation of any JumpCrew Material, and all Intellectual Property Rights in and to them, will not be considered “works for hire,” but rather will be deemed to be JumpCrew Material and owned solely and exclusively by JumpCrew.  To the extent that any such Derivation or other Intellectual Property including or constituting any JumpCrew Material may nonetheless be considered a work for hire for Client or any Client personnel under applicable law, or to the extent that Client or any Client personnel otherwise has or acquires any ownership, right, title, interest, license, or claim in, to, or under any JumpCrew Material under applicable law, Client agrees that JumpCrew shall solely own such Derivation or Intellectual Property, and Client hereby assigns, transfers, and conveys, and shall cause all Client personnel to assign, transfer, and convey, all such ownership, rights, title, interest, license, and claim in, to, or under any JumpCrew Material to JumpCrew, automatically and effective immediately upon the creation, discovery, or development, without the necessity of any further consideration to Client or Client’s personnel.

7.2. Client Materials.  All ownership, rights, title, and interest in and to any Client Materials, but excluding any and all JumpCrew Material, are, shall be, and will remain, as between Client and JumpCrew, owned solely and exclusively by Client.  Nothing in this Agreement or any Statement of Work will be deemed to assign, convey, transfer, or grant any right, title, interest, ownership, or claim of any kind in or to or under any Client Materials, either in whole or in part, to JumpCrew.  Any Derivation of Client Materials, regardless of medium, created or developed by JumpCrew or Client, and all Intellectual Property Rights in and to them, in each case other than any JumpCrew Material, will be considered Client Materials, and will be owned solely and exclusively by Client.  To the extent that JumpCrew owns any such Client Materials under applicable law, JumpCrew agrees that the ownership of such Client Materials is automatically assigned to Client upon such Client Materials’ creation without the necessity of any further consideration to JumpCrew or JumpCrew’s personnel.

7.3 Limited Rights to Access and Use JumpCrew Material.  To the extent that JumpCrew  grants Client access under this Agreement or a Statement of Work to any JumpCrew Material for the purposes of providing the Services or a Deliverable, JumpCrew hereby grants Client a limited, nontransferable, non-assignable, nonexclusive right, without any right to directly or indirectly sublicense or grant any sublicense right, to access and use such JumpCrew Material, solely for the Term as stated in the applicable Statement of Work and, in no event longer than the Term, solely for: (a) Client’s internal use to process data owned by Client or to which Client owns servicing rights, as applicable, and not in any other environment; and (b) the purpose intended under the applicable Statement of Work for the Services or Deliverables.  JumpCrew does not grant or assign to Client any legal or equitable title or other right in any JumpCrew Material or any Derivations of any of the JumpCrew Material. All JumpCrew Material and Derivations of any JumpCrew Material shall remain JumpCrew’s sole and exclusive property and JumpCrew Material under Section 7.1 above, and no use shall be made of any concepts, methods, ideas, processes, or other Intellectual Property or Intellectual Property Rights used or included in or covered by, or that may be derived from, any JumpCrew Material unless as expressly allowed in a provision in this Agreement or in the applicable Statement of Work.  Client may not provide or permit access to any JumpCrew Material or Derivation of any JumpCrew Material, or any part or component thereof, to any Competitor or any other third party without JumpCrew’s express prior written consent, nor shall Client use JumpCrew Material for the purpose of developing products or services competitive to JumpCrew.

7.4 Limited Rights to Access and Use Client Materials.  Client hereby grants JumpCrew a limited, nontransferable, non-assignable, nonexclusive right to access, modify, copy, perform, display, create Derivations from and otherwise use the Client Materials solely as necessary to provide the Services under this Agreement or any applicable Statement of Work, or otherwise for any performance of any obligation or exercise of any right, under this Agreement.  Client does not grant or assign to JumpCrew any legal or equitable title or other right in any Client Materials or any Derivations of such Client Material owned by Client under Section 7.2. Client further acknowledges that with respect to attribute data such as IP addresses, cookie IDs and mobile advertising IDs collected by JumpCrew from Client, JumpCrew may use such data to improve and enrich its databases and the results it provides to customers through the Services, including correlating and aggregating descriptive attribute data.

7.5 Limitations.  Client may not, directly or indirectly, (a) modify, adapt, translate, transliterate, or create any Derivation of or from the JumpCrew Material; or (b) reverse engineer, disassemble, analyze, attempt to derive source code of, or examine for purposes of reverse engineering, any JumpCrew Material; or (c) challenge JumpCrew’s sole and exclusive ownership of, or JumpCrew’s or JumpCrew’s Affiliates’ rights in or to or under, any JumpCrew Material, or challenge the validity or enforceability of any JumpCrew Material; or (d) access or use the Services for the purpose of comparing results with another solution, developing another solution, or benchmarking another solution; or (e) induce, assist with, or support any third party’s engaging in any activity covered by any of the foregoing clauses.  Client will provide prompt written notice to JumpCrew if Client knows of, or suspects, any activity covered by any of the foregoing clauses by any Client personnel or any third party.  Nothing in this Section shall, implicitly or expressly assign, transfer, convey, or grant any right or license in, to, or under any JumpCrew Material.

7.6 Termination of Access.  Upon termination or expiration of this Agreement or the applicable Statement of Work, Client’s access to the respective JumpCrew Material will end immediately and Client agrees to return the JumpCrew Material and all Derivations of JumpCrew Material in its possession or in the possession of third parties, to destroy all copies made by Client, its employees and/or Client’s third parties, and to certify to JumpCrew in writing that it has returned or destroyed the JumpCrew Material. Client shall promptly notify JumpCrew of, and deliver to JumpCrew all of, any Derivation of any JumpCrew Material created, discovered, developed, or acquired by or for Client or any of its affiliates or other Client personnel. Notwithstanding the foregoing, upon termination or expiration of this Agreement or the applicable Statement of Work, JumpCrew may offer Client a license in the Playbook. In the event that Client chooses to purchase a license in the Playbook, JumpCrew and Client will enter into a License Agreement for the Playbook and Client will pay a one-time fee as described therein. 

8. Representations and Warranties

Each Party represents and warrants to the other Party that: (a) it has validly executed and delivered this Agreement and that this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms and all applicable law,; (b) it has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and that the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite corporate action on its behalf; (c) its execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which it is bound or to which its properties are subject; and (d) in performing the Services, JumpCrew agrees to use reasonable care and supervision of its personnel and conduct its business operations in accordance with applicable federal, state and local laws, rules, orders, regulations and ordinances.

9. Indemnification, Disclaimer and Limits on Liability

9.1. Indemnification. Each Party shall, at its expense, indemnify, defend and hold harmless the other Party and its affiliates and their respective officers, directors, employees, agents and representatives (collectively, the “Indemnified Party,” and the Party so indemnifying, the “Indemnifying Party”) from and against all judgments, losses, payments, costs, expenses (including reasonable attorneys’ fees), damages, settlements, liabilities, fines, and penalties, including, without limitation, third party claims (“Costs”) incurred by the Indemnified Party, arising in connection with (i) a breach by the Indemnifying Party of any of its obligations, covenants, warrants or representations hereunder, (ii) actual or alleged infringement of any third party’s Intellectual Property Rights, or (iii) the gross negligence or willful misconduct of the Indemnifying Party (collectively, a “Claim”). 

9.2. Indemnification Procedure. The foregoing indemnification provision is subject to the following: the Indemnified Party will provide the Indemnifying Party: (i) prompt written notice of the existence of such Claim or Costs; (ii) control over the defense or settlement of any such Claim, provided that the Indemnifying Party may not settle such Claim without the Indemnified Party’s prior written consent, which consent must not be unreasonably withheld, and provided that the Indemnified Party has the right to participate in the defense of any such Claim at its expense and through counsel of its choosing; and (iii) non-financial assistance at Indemnifying Party’s request to the extent reasonably necessary for the defense of any such Claim. Notwithstanding the terms of this Section, in the event that an Indemnified Party pays a Claim asserted against it immediately prior to the due date for such payment in order to prevent further penalties or adverse consequences, the payment of such amount will not be deemed a breach under this Section and is recoverable by the Indemnified Party as a Cost without reference to the ultimate disposition of the Claim. 

9.3. Exclusions to Indemnification. JumpCrew’s indemnification obligations under this Section 9 do not apply to, and JumpCrew will not indemnify Client from, any Claim related to: (i) JumpCrew’s use of or reliance on Client Materials in performing the Services or any third party data; (ii) use or combination of the Services with software, hardware, or other materials not provided by JumpCrew, where such Claim would not have arisen but for such use or combination, (iii) modifications to or Derivations of the Services by anyone other than JumpCrew, or (iv) JumpCrew’s adherence to Client’s specifications in conjunction with an implementation, modification or enhancement to any Services if and to the extent JumpCrew did not have actual knowledge at the time of such implementation, modification or enhancement of possible Costs related to any alleged or actual infringement. If Client’s use of the Services is or is likely, in JumpCrew’s determination, to infringe on the Intellectual Property Rights of a third party or to be enjoined, JumpCrew may, at its option, procure the right for Client to continue to use the Services or modify the Services in a manner that has materially equivalent functionality so as to avoid such infringement or injunction.  If the foregoing options are not available on commercially reasonable terms and conditions, JumpCrew may Terminate the affected Services upon written notice. This Section 9 states JumpCrew’s entire liability and Client’s exclusive remedy for any claim of infringement.

9.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE DELIVERABLES AND ALL OTHER SERVICES PROVIDED BY JUMPCREW ARE PROVIDED “AS IS” AND JUMPCREW MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND (EXPRESS IMPLIED, OR STATUTORY), APPLICABLE TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE;  EFFORT TO ACHIEVE PURPOSE;  QUALITY; TITLE; NON-INFRINGEMENT; UNINTERRUPTED, ERROR-FREE USE; OR  ACCURACY. NO EMPLOYEE, CONSULTANT, AGENT OR OTHER REPRESENTATIVE OF JUMPCREW HAS AUTHORITY TO BIND JUMPCREW TO ANY ORAL REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES OR THE SOFTWARE. 

9.5. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS (OTHER THAN JUMPCREW’S RIGHT TO PAYMENT UNDER THIS AGREEMENT), LOSS OF GOODWILL, LOSS OF CUSTOMERS OR SUBSCRIBERS, DAMAGE OR BREAKAGE OF EQUIPMENT, OR ANY FINES OR PENALTIES ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, WHETHER OR NOT FORESEEABLE, SUFFERED BY SUCH OTHER PARTY AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF THE PARTY’S OBLIGATIONS UNDER THIS AGREEMENT, OR ITS ACTS OR OMISSIONS RELATED TO THIS AGREEMENT, WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER SOURCE EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION TO THE FOREGOING AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY, JUMPCREW’S ENTIRE LIABILITY TO CLIENT RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE SERVICES PROVIDED TO CLIENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL IN NO EVENT EXCEED THE SUMS ACTUALLY PAID TO JUMPCREW BY CLIENT FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLIENT’S CLAIM.

10. Dispute Resolution

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in Nashville, Tennessee conducted before a single neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be available under applicable law in a court proceeding; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The Parties shall jointly share and pay all arbitration fees. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO THIS ARBITRATION PROCEDURE, THEY ARE EACH WAIVING THE RIGHT TO RESOLVE ANY SUCH DISPUTE, CLAIM OR DEMAND THROUGH A TRIAL BY JURY OR JUDGE OR BY ADMINISTRATIVE PROCEEDING. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Parties further acknowledge and agree that, notwithstanding the provisions of this Section 10, nothing in this Agreement shall be construed to require the arbitration of any claim arising out of or relating to the Non-Solicitation provision set forth in Section 11.2 of this Agreement. The foregoing provision shall be enforceable by any court of competent jurisdiction and shall not be subject to arbitration under this Section 10.

11. Miscellaneous

11.1. Force Majeure. With the exception of Client’s payment obligations, if either Party’s performance is interfered with by causes beyond its reasonable control including, but not limited to, acts of God (including, without limitation, pandemics, epidemics, and other public health crises), vandalism, cable cut, interruption of electrical or telecommunications service or other similar occurrence, strike, lockout or work stoppage or other labor difficulties, any law, order, regulation, or other action of governmental authority (federal, state, or local), including, without limitation, any such governmental action taken in response to any of the foregoing and impacting, in the affected Party’s sole but reasonable discretion, the Party’s ability to perform (any such cause a “Force Majeure Event”), then such Party shall be excused from such performance on a day-to-day basis to the extent of the interference caused by the Force Majeure Event. As to JumpCrew, Force Majeure Events specifically include, without limitation, (i) any termination, suspension delay or disruption of service by a common carrier under color of compliance with governing tariffs, laws, rules, regulations or agreements and (ii) any failure, disruption or malfunction of any telecommunications network, facility or equipment beyond JumpCrew’s reasonable control, whether or not attributable to one or more common carriers. For clarity, JumpCrew shall have no liability whatsoever to Client for any Service failures or interruptions attributable to either of the foregoing or any other Force Majeure Event. If a Party is prevented from performing as a result of a Force Majeure Event, the affected Party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease, but the foregoing shall be the affected Party’s only obligations with respect to the impacted performance during the entire pendency of the Force Majeure Event.

11.2. Non-Solicitation. Each of Client and JumpCrew understands and acknowledges that the other has expended and continues to expend significant time and expense in recruiting and training its employees and that the loss of employees would cause significant and irreparable harm. Accordingly, Client and JumpCrew will not directly or indirectly solicit for employment or hire current or former employees of the other Party without the other Party’s prior written consent (which will not be unreasonably withheld), during the Term and for 24 months thereafter. The Parties agree that in the event either Party breaches this Section 11.2, the other shall be obligated to pay to the non-breaching Party an amount equal to one and one half (1.5) of the annual base salary of the employee subject to such breach, and each Party further agrees that such damages amount is an accurate assessment of the actual damages that a non-breaching Party would incur as a result of a breach hereof. For the avoidance of doubt, this non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement. However, it will not be deemed a violation of this Agreement if a Party merely updates its LinkedIn profile without engaging in any other substantive communication, by social media or otherwise, that is prohibited by this section. Notwithstanding the foregoing, neither Party will be precluded from hiring any employee of the other Party who responds to any public notice or advertisement of an employment opportunity or who terminated his/her employment with the other Party at least six months previously, provided that the hiring Party did not solicit the termination.

11.3. Use of Name and Publicity. Unless otherwise agreed to in writing, JumpCrew may use the name, logo, trademark, trade name, or other marks or Intellectual Property of the Client without Client’s written consent during the Term for the purposes of providing the Services and thereafter solely for mutually beneficial marketing purposes (e.g., display of Client’s name on JumpCrew’s site as a past client of JumpCrew). 

11.4. Notices. Unless otherwise required under this Agreement or as set forth in a SOW, all notices, consents and other communications hereunder must be in writing and will be deemed to have been duly given when delivered personally, or one (1) business day after being sent by a nationally-recognized overnight courier with package tracking capabilities, or three (3) business days after being sent postage prepaid by certified or registered mail, return receipt requested. Notice that is delivered via facsimile or electronic mail is sufficient to meet the notice requirement, provided it is: (i) confirmed as received by the other Party, or (ii) an original copy follows it, as set forth above, in a timely manner. All notices should be sent to the following address and indicated contact:

JumpCrew
Attn: Legal
501 Great Circle Rd.
Nashville, TN 37228
[email protected] 

11.5. Survival. The Parties’ rights and obligations which by their nature or context would extend beyond the termination, cancellation or expiration of this Agreement and all applicable terms and conditions herein that are intended to survive, shall survive, termination of this Agreement. For clarity, the provisions related to Confidential Information, Intellectual Property, Indemnification, Limitations of Liability, Dispute Resolution, and Non-Solicitation are expressly understood to survive any expiration or termination of this Agreement and to remain in effect for as long as permissible under applicable law.

11.6. No Third-Party Beneficiaries. Except as stated herein this Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the Parties. 

11.7. Modification and Waiver. No modification of this Agreement or any Statement of Work and no waiver of any breach of this Agreement or any Statement of Work will be effective unless in writing and signed by an authorized representative of each Party. No waiver of any breach of this Agreement or any Statement of Work, and no course of dealing between the Parties, will be construed as a waiver of any subsequent breach of this Agreement or any Statement of Work. 

11.8. Severability. The provisions of this Agreement are severable. If a court or arbitrator holds any provision of this Agreement or any Statement of Work invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired thereby and the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. If a court or arbitrator holds any such provision to be invalid or unenforceable, the adjudicating entity shall replace that provision with a provision that is valid and enforceable, and most nearly reflects the intent of the original provision. 

11.9. Contrary, Inconsistent, or Additional Terms. In the event of any conflict between the terms of any Statement of Work and the terms of this Agreement, the terms of the applicable Statement of Work shall control. 

11.10. Governing Law. This Agreement will be governed by the laws of the State of Tennessee without regard to its conflicts of law provisions. The Parties hereby agree that any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be brought in the federal courts of the United States of America or the courts of the State of Tennessee, in each case located in the City of Nashville, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Tennessee. Each of the parties hereby irrevocably consents to the jurisdiction of such courts in any such suit, action, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding that is brought in any such court has been brought in an inconvenient forum. Service of process, summons, notice, or other document by registered mail to the address set out in Section 11.4 shall be effective service of process for any suit, action, or other proceeding brought in any such court.

11.11. Remedies upon Default. Unless specifically set forth in this Agreement or an applicable Statement of Work, in the event of breach by either Party, the non-breaching Party will be entitled to exercise any and all rights and remedies available to it at law or in equity, whether concurrently or separately, and the exercise of one remedy will not be deemed either an election of such remedy or a preclusion of the right to exercise any other remedy. 

11.12. Execution. To facilitate execution, this Agreement may be executed (a) pursuant to the process set forth in the Electronic Signatures in Global and National Commerce Act (15 USC §7001 et seq.), or (b) in as many counterparts as may be required to reflect all Parties’ assent; all counterparts shall collectively constitute a single agreement. A legible facsimile or emailed signature that can be authenticated will constitute an original and binding signature of a Party. 

11.13. Independent Contractor. The status of JumpCrew shall be that of an independent contractor, and no JumpCrew personnel will be deemed an employee or agent of Client. None of the terms in this Agreement, nor the provision of Services hereunder, will be construed as creating a partnership, joint venture, agency, master-servant, employment, trust, or any other relationship between Client and JumpCrew. 

11.14. Assignment. Client may not assign this Agreement without the written consent of JumpCrew, not to be unreasonably withheld. JumpCrew may assign its rights and/or obligations hereunder: (a) to any subsidiary, parent company or affiliate of JumpCrew; (b) pursuant to any sale or transfer of substantially all of its assets; or (c) pursuant to any financing, merger or reorganization.

11.15. Drafting. Each party has had an opportunity for their respective legal counsel to review this Agreement. Accordingly, no rule of construction against the drafter shall be applied.

11.16. Entire Understanding. This Agreement, and any Statement of Work referencing this Agreement, constitute the exclusive and entire agreement between the Parties with respect to its subject matter, and as of the Effective Date, supersedes all prior or contemporaneous agreements, negotiations, representations and proposals of any kind, whether written or oral, either express or implied, relating to this subject matter.

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