Crosschq, Inc. Terms of Service

Date of last update: August 28, 2024

Thank you for using Crosschq! These Terms of Service govern a customer’s acquisition and use of Crosschq, Inc. (“Crosschq”) software and/or services including but not limited to the Crosschq website and the Crosschq Organization application.

By mutually executing an Order Form with Crosschq that references these Terms of Service, a customer agrees to these Terms of Service, our Privacy Policy, our Data Processing Agreement and the Order Form (together, the “Agreement”). Customer represents that the individual executing the Order Form is entering into this Agreement on behalf of the entity identified on the Order Form (“Customer”) and that the individual executing the Order Form has authority to bind the Customer to this Agreement.

These Terms of Service were last updated on the date set forth above. Crosschq reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will automatically become effective thirty (30) days from the date of such notice.

 1.1 Provision of Access. Subject to all the terms and conditions of this Agreement, Crosschq will provide Customer a non-exclusive, non-transferable, non-sublicensable right to access the software services described in the applicable Order Form (the “Service” or the “Services”) during the Term specified on the Order Form and any Renewal Service Term (collectively the “Term”), through the Internet, solely for Customer’s internal business purposes. Crosschq retains all rights not expressly granted to the Customer pursuant to this Agreement.

1.2 Customer License Grant. Customer hereby grants Crosschq and its authorized Sub-processors to process, reproduce, distribute and display data to Authorized Users in connection with its provision of the Services.  Additionally, Crosschq is granted a license to view data and take actions within Customer’s account in order to provide technical administration, support, maintenance, service improvement and analysis, and to perform actions within Customer’s Crosschq account at Customer’s request.

1.3 Customer Use of the Services. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services; copy, frame or mirror any part of the content of the Services; access the Services for purposes of monitoring availability, performance or functionality, or any other benchmarking or competitive purposes; access the Services to build a competitive product or service or to copy any features, functions or graphics of the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own benefit; rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; remove any proprietary notices from the Services or Documentation; use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any European privacy, intellectual property, consumer and child protection, obscenity or defamation laws. For purposes of this Agreement, “Documentation” means the user materials and other similar documentation made available by Crosschq to Customer in connection with Services.

1.4 Modification of Services. Crosschq may modify the Services at any time, however expressly agrees it will not materially decrease the overall functionality of the Services.

2. Crosschq Responsibilities.

2.1 Service Levels. Subject to the terms and conditions of this Agreement, Crosschq shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven days a week, except for: (i) planned downtime; and (ii) unavailability caused by circumstances beyond Crosschq’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service attacks.

2.2 Data Protection and Security.

2.2.1 Safeguards. Crosschq will implement and maintain reasonable administrative, physical and technical safeguards that are designed to prevent unauthorized use, access, processing, destruction, loss, alteration, or disclosure of data furnished by or on behalf of Customer, including any job candidate data, recruiting data, employee data and employee performance data (“Customer Data”) as may be held or accessed by Crosschq.  Crosschq agrees that it will not disclose, transfer, share or otherwise make available any Customer Data to any third party under any circumstances except, in each case, to an Affiliate or duly authorized Sub-processor in connection with the Services. Under no circumstances will Crosschq sell or rent Customer Data to any third party for any purposes. For purposes of this Agreement “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than fifty percent (50%) of the voting securities in such entity.

2.2.2. Access to Systems. Access, if any, to Customer’s computer, telecommunication or other information systems (“Systems”) is hereby granted solely to provide the Services described in this Agreement and is limited to those specific Systems and for such time periods reasonably required to effect the purpose of this Agreement.  All such access is subject to Customer control and Crosschq observance of policies, standards, and guidelines agreed in writing by the parties.  Without limiting the foregoing, Crosschq shall at all times access Systems in a manner that does not impair the integrity or availability of Customer’s systems.

2.2.3 Changes in Data Protection Laws. If any variation to the Agreement between the Parties is required to maintain compliance with changes in applicable data protection laws, the Parties will negotiate necessary amendments to this Agreement in good faith to address such changes.

3. Customer Responsibilities.

3.1 General. Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of employees and agents of Customer that are authorized to use the Services (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of this Agreement if performed by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer is responsible for, at its own expense, acquiring, installing and maintaining all connectivity equipment, internet and network connections, hardware software and other equipment as may be necessary for its Authorized Users to access and use the Services.

3.2 Customer Content; Compliance with Laws. Customer represents, warrants and covenants that Customer and its Authorized Users will not introduce content to the Service or otherwise use the Service in a manner that (i) infringes or violates the intellectual property rights or property rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or, (iv) introduces a virus or other harmful computer file, or program.  Further, Customer represents, warrants and covenants that Customer, in performance of its obligations and/or exercise of its rights pursuant to this Agreement, will comply with all applicable laws and regulations. Customer further acknowledges that Customer is responsible for all Authorized User activity in connection with the Services and that violation of this Section 3.2 may be grounds for termination of this Agreement by Crosschq. 

3.3 Customer Cooperation. Customer will cooperate with Crosschq in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Crosschq may reasonably request. Customer will also cooperate with Crosschq in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will designate an employee who will serve as the primary point of contact for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Crosschq.

4. Fees and Payment.

4.1 Fees. Customer will pay Crosschq the applicable fees described in the Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. In the event Customer payment of undisputed Fees to Crosschq remains unpaid more than thirty (30) days after an invoice becomes due, or more than ten (10) days after an invoice becomes due in the event of two (2) consecutive late payments, all overdue Fees plus all Fees for the remainder of the Service Term shall become immediately due and payable. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable. 

4.2 Invoices. Unless otherwise specified in an Order Form, all Fees will be billed through a Crosschq invoice upon the effective date of the applicable Order Form and full payment for invoices issued must be received by Crosschq thirty (30) days after the electronic delivery date of the invoice.  If Customer has a good faith belief that Crosschq has billed Customer incorrectly, Customer must contact Crosschq no later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to billing@crosschq.com.

4.3 Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Crosschq, unless Customer provides to Crosschq a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Crosschq on account thereof.

5. Intellectual Property.

5.1 Crosschq IP. Except as expressly set forth in this Agreement, Crosschq exclusively owns and retains all right, title and interest in and to all Crosschq Intellectual Property which expressly includes: (a) the Services, including all software, improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed as part of any professional services (as set forth in an Order Form or Statement of Work mutually executed by both parties hereto that references this Agreement) or support; (c) Crosschq trademarks, logos, domain names or other brand features; and (d) Usage Data (as defined below). This Agreement does not grant Customer any Intellectual Property Rights in the Crosschq Intellectual Property. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights. Usage Data means information that is collected and produced by the Services that is used to identify patterns of use and other similar statistical data.

5.2 Candidate Reports. Customer shall own the right to access all requested candidate reports generated by the Crosschq Service so long as their Crosschq account is still active. In addition, any additional analysis that is based on or derived from the candidate reports and provided to Customer by Crosschq as part of the Service will be the property of the Customer. For the purpose of clarity, the underlying data provided directly to Crosschq by a Candidate and all data in a Candidate’s account will be and remain the Candidate’s data and not the Customer Data.

5.3 New Hire Analytics (NHA) Data, Analysis and Reporting. Customer shall own the right to access all reports and analysis derived from Customer Data by Crosschq’s NHA Service so long as their Crosschq account is still active. All NHA analysis that is based on or derived from Customer Data and provided to Customer by Crosschq as part of the Service will be the property of the Customer.

5.4 Blind Data.  Notwithstanding anything to the contrary, Crosschq will be free (during and after the Term hereof), without any obligation to Customer, to collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures, models and other information based on “Aggregated Data.” “Aggregated Data” means Customer Data that is: (i) anonymized by removing any personal or other identifying information so the remaining data is in no way attributable to a specific customer or any individual; (ii) combined with the other data; and (iii) presented in a way which does not reveal the Customer’s or any individual’s identity.

5.5 Feedback. Notwithstanding anything to the contrary, if Customer or any of its employees, agents, contractors or Authorized Users provide Crosschq with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Crosschq is free to use and disclose such Feedback without any obligation to Customer or such employees, agents, contractors or Authorized Users and to incorporate such Feedback in its sole discretion into any existing or future products or features.

6. Confidential Information. Each party agrees that all non-public information, code, Customer Data, inventions, methods, know-how, business, technical and financial information it obtains (“Receiving Party”) from or on behalf of the disclosing party (“Disclosing Party”) constitutes the confidential information of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure, is identified as confidential in writing within thirty (30) days of the disclosure, or is of a nature that a reasonable person with knowledge of the Disclosing Party’s business would understand to be confidential. Except as authorized herein (including, without limitation, disclosure to authorized third parties such as Sub-processors required for Crosschq to provide the Services), the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s non-use and non-disclosure obligations hereunder will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction on use and/or disclosure from a third party; (iv) is independently developed by or for employees of the Receiving Party without use of or reference to any Confidential Information of Disclosing Party; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

7. Warranty.

 7.1 General Warranties. Crosschq warrants to Customer that Services under this Agreement are provided in compliance with all applicable federal, state and local laws. Crosschq will render the Services and any professional services in a professional and workmanlike manner in all material respects in accordance with Documentation provided to Customer by Crosschq (provided Customer uses the Services in accordance with the Documentation and follows reasonable support instructions provided by Crosschq). Crosschq represents and warrants that (i) it has sufficient right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Agreement, and (ii) its execution and performance of this Agreement will not violate or conflict with any obligation it has to any third party. Each party represents and warrants that it has the full right, power and authority to enter into this Agreement. Customer represents and warrants that it has the right to use the Customer Data as contemplated by this Agreement.

7.2 Third Party Services. The foregoing warranty does not apply to, and Crosschq strictly disclaims all warranties with respect to, connections and/or links to non-embedded services, products and professional services that are provided and sold to Customer by third parties which interoperate with or are used in connection with the Service, including, without limitation, via application programming interfaces (collectively, “Third Party Services”). Any exchange of data or other interaction between Customer and Third Party Services is solely between customer and the operator of such Third Party Services, and is governed by Customer’s agreement with such Third Party Services provider.

7.3 Warranty Disclaimer and Remedies. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND CROSSCHQ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CROSSCHQ AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT CROSSCHQ DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. CROSSCHQ IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, APPROPRIATENESS, OR LEGALITY OF DATA, OR USER POSTS.

8. Mutual Indemnification. 

8.1 Crosschq Indemnification. Crosschq will indemnify, defend, and hold Customer harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim (i) arising from Crosschq’s violation of appliable law; (ii) arising from Crosschq’s gross negligence or willful misconduct; or (iii) that the Services infringe or misappropriate such third party’s patent, trademark, trade secret, copyright, or other Intellectual Property Rights. Crosschq’s obligations pursuant to this Section 8.1 will not apply, however, to the extent that such claim is caused by: (i) Customer’s use of the Services other than in accordance with the terms of this Agreement; (ii) Customer’s failure to use or implement corrections or enhancements to the Services made available free of charge to Customer by Crosschq, (iii) portions or components of the Services designed and provided to Customer accordance with Customer specifications, (iv) modification of the Services that have not been performed by or on behalf of Crosschq, (v) combination of the Services with other products, services, processes or materials not supplied by Crosschq (including, without limitation, Customer Data); or (vi) Customer’s gross negligence, willful misconduct or violation of applicable law.

8.2 Customer Indemnification. Customer will indemnify, defend, and hold Crosschq harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties resulting from such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim (i) arising from Customer’s violation of applicable law; (ii) arising from Customer’s gross negligence or willful misconduct; or (iii) that the Customer Data and/or Customer’s provision thereof to Crosschq violates such third-party’s Intellectual Property Rights. 

8.3 Indemnification Procedure. As a condition to the indemnifying party’s obligations pursuant to this Section 8, the indemnified party must: (i) promptly notify the indemnifying party in writing of all indemnifiable claims; (ii) provide the indemnifying party with reasonable assistance to settle or defend such claims, at the indemnifying party’s own expense; and (iii) grant to the indemnifying party the right to control the defense and/or settlement of such claims, at the indemnifying party’s own expense; provided, however, that: (1) the failure to so notify, and/or provide assistance will only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (2) the indemnifying party will not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement that: (x) makes any admission of wrongdoing on behalf of the indemnified party; or (y) consents to any injunction against the indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Service); and (3) subject to the foregoing, the indemnified party will have the right, at its expense, to participate in any indemnifiable claim and to be represented by legal counsel of its choosing, but will have no right to settle a claim without the indemnifying party’s written consent.

9. Limitation of Liability.

9.1 Limitation of Damages. EXCEPT WITH RESPECT TO BREACHES OF SECTION 6 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

9.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY CLAIMS, SUITS, LIABILITY OR DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT, IN THE AGGREGATE, FOR AMOUNTS IN EXCESS OF THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CROSSCHQ UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.

9.3 Limitation of Claims. Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever waived.

10. Term and Termination.

10.1 Term. This Agreement will remain in full force and effect for the full Service Term specified in the Order Form, and unless otherwise specified on the Order Form, will automatically renew for additional one year periods (each a “Renewal Service Term” and collectively the “Term”).  Each Renewal Service Term shall be subject to a 5% annual increase unless either Party requests termination in writing delivered to the other Party at least sixty (60) days prior to the end of the then-current Term. A termination request by either Party must be given via certified mail, nationally recognized overnight courier, or e-mail to respective Party’s most recently designated Billing Contact.

10.2 Renewal Service Term Fees. In the event that Customer exceeds any Candidate Limit identified in an applicable Order Form, Crosschq reserves the right to invoice Customer for such overage which shall be payable net thirty (30) from receipt of invoice. Crosschq reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of the then current Term, upon thirty (30) days prior notice to Customer.

10.3 Suspension. Notwithstanding anything to the contrary in this Agreement, Crosschq may impose limitations on bandwidth usage, and/or temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if Crosschq reasonably determines that (i) there is a threat to or attack on any of the Services; (ii) Customer’s or any Authorized User’s use of the Services abuses, disrupts or poses a security risk to the Services or to any other customer or vendor of Crosschq; or (iii) Customer is in breach of its obligation to pay any undisputed Fees due under the Agreement (collectively, “Service Suspension(s)”). Prior to suspension of service pursuant to sub-Section (iii) above, Crosschq will provide Customer with notice of non-payment and the amount due (“Non-payment Notice”). Unless the amount has been paid, Crosschq reserves the right to suspend Customer access to the Services fourteen (14) calendar days after electronic delivery of the Non-payment Notice. Crosschq will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 

10.4 Termination. In addition to any other express termination right set forth in this Agreement: (i) Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches any material provision of this Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, and such proceeding is not dismissed within one hundred twenty (120) days of institution; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business without a successor.

10.5 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of and/or access to the Service(s) and except as set forth in Section 10.6, all rights granted under this Agreement shall cease. No expiration or termination will affect Customer’s obligation to pay all Fees that have become due before the effective date of such expiration or termination, or entitle Customer to any refund. Upon such expiration or termination, the Parties shall each destroy or return all Confidential Information in their respective possession (excluding such information that is automatically archived by backup systems not readily accessible in accordance with a Party’s retention policies, provided all such Confidential Information remains subject to the confidentiality obligations set forth in Section 6 of this Agreement.

10.6 Survival. Sections 4, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or termination of this Agreement.

11. Miscellaneous.

11.1 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the Service and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement.  Customer’s subscription to the Service and entry into this Agreement are not contingent on the delivery of any future additional functionality or features that are not currently part of the Services. This Agreement supersedes any terms contained in any purchase order regarding the subject matter of this Agreement. In the event of any conflict between the Terms of Service, the Data Processing Agreement (DPA) and/or the Order Form, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Terms of Service and (3) each Order Form. Notwithstanding the foregoing, in the event that an Order Form references a specific provision of these Terms of Service and states that it supersedes such provision, such Order Form will take precedence only with respect to such specific provision.

11.2 Amendment. There will be no force or effect to any different terms of any related purchase order provided as part of payment processing, even if signed by the parties after the date hereof. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.   

11.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:

Crosschq: 145 East Prospect St, Suite 200
Danville, CA 94526
legal@crosschq.com

Customer: Billing Contact identified in the Order Form

11.4 Publicity. Crosschq may use Customer name or logo in its marketing materials or on its website for the sole purpose of marketing the Services. Use of Customer’s name and logo will be revocable at any time by Customer.

11.5 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement (except for instances of non-payment), for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.

11.6 Waiver. No failure to exercise, or delay in exercising, any rights, powers or remedies arising from this Agreement will operate or be construed as a waiver of the rights of such a party to demand full compliance with the terms of this Agreement.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.

11.7 Severability. If any provision of this Agreement is declared invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability, the remainder of the agreement will remain valid and enforceable to the fullest extent permitted. 

11.8 Dispute Resolution. 

11.8.1 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law. 

11.8.2 Negotiation.  In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, the parties will use their best efforts to settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.

11.8.3 Binding Arbitration. If the parties do not resolve a dispute pursuant to Section 11.8.2 within a period of sixty (60) days, then, upon notice by either party to the other, all disputes shall be finally settled by binding arbitration taking place in San Francisco, California. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitration shall be conducted in English, on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. The prevailing party shall be entitled to an award of reasonable attorney fees. An award of arbitration may be confirmed in a court of competent jurisdiction sitting in San Francisco County, California.

11.8.4 Class Action Waiver. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.

11.9 Assignment. Neither party may assign any of its rights or delegate any of its rights or obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other party, other than to an Affiliate or successor in interest by merger, acquisition of all or substantially all stock or assets, or reorganization. Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

11.10 Compliance with Export Control Laws. Notwithstanding anything to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Crosschq are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Please contact Crosschq at 145 E. Prospect, Suite 200, Danville, CA 94526 with any questions regarding these Terms.