Last Modified: February 10, 2020
Welcome to crossbeam.com, the website and online service of Crossbeam, Inc. (“Crossbeam,” “we,” “our” or “us”). This page explains the terms by which you may use our online services, website, and software provided on or in connection with the service (collectively, the “Service”).
1. Our Service
Crossbeam provides a place for businesses to collaborate with one another and submit, store and share User Data (as defined below). Our Service allows businesses to connect with other companies and establish collaborative relationships by sharing certain User Data with one another via the Crossbeam interface and/or Crossbeam’s or one of our third-party service providers’ API connections. “User Data” means any company’s, organization’s, or other entity’s (each, an “Organization”), data, documents, transactional data, or other information about or in connection with the Organization on whose behalf a User is accessing and using the Service, in each case, that is submitted, transferred, uploaded, or input, by or on behalf of such Organization into the Service for the purpose of transmitting and sharing any of the foregoing with other users of the Service (as permissioned by such Organization). For the avoidance of doubt, “User Data” does not include User Content (as defined below).
As the provider of the Service, Crossbeam does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any User Data. Users, including their Organizations, alone are responsible for their User Data and whom they choose to share such User Data with. When choosing to connect and share User Data with another User, you are solely responsible for entering into all necessary documentation and agreements, including without limitation, non-disclosure agreements, in connection with or relating to such User Data, with such User, including their Organizations, as applicable, and ensuring that all such documentation and agreements are current and have not been terminated or expired. You should always exercise due diligence and care when deciding whether to share User Data with another Organization or User, or communicate and interact with other Organizations and/or Users, whether through or outside the Service. By connecting with another Organization and/or User and sharing your User Data, Crossbeam does not become a party to, or other participant in, any contractual relationships between Organizations and/or Users, as may be applicable. Crossbeam is not acting as an agent in any capacity for any Organization or User.
While we may help facilitate the resolution of disputes, Crossbeam has no control over and does not guarantee: (a) the existence, quality, safety, suitability, or legality of any User Data, (b) the truth or accuracy of any User Data, or (c) the performance or conduct of any User, Organization, or third party, including but not limited to, a User’s or Organization’s misleading acts or omissions conducted through or outside of the Service. Crossbeam does not endorse any User or any Organization.
If you choose to use the Crossbeam Service and share data with other Users or Organizations, your relationship with Crossbeam is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Crossbeam for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Crossbeam.
This is a contract between you and Crossbeam. You must read and agree to these terms before using the Crossbeam Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Crossbeam, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users or Organizations previously removed from the Service by Crossbeam.
1.3 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service solely for your internal business purpose as permitted by the features of the Service. Crossbeam reserves all rights not expressly granted herein in the Service and the Crossbeam Content (as defined below). Crossbeam may terminate this license at any time for any reason or no reason, unless you execute or have executed an Order Form with Crossbeam, setting forth an applicable license Term (as defined in the Order Form).
1.4 User Accounts
Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of any Organization, then (a) “you” includes you and that Organization, and (b) you represent and warrant that you are an authorized representative of such Organization with the authority to bind the entity to this Agreement, and that you agree to this Agreement on such Organization’s behalf. By connecting to Crossbeam with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your User Account. You must notify Crossbeam immediately of any breach of security or unauthorized use of your User Account. Crossbeam will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your Settings Page within the Crossbeam user interface. By providing Crossbeam your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your Settings Page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.5 Service Rules
You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Crossbeam servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Crossbeam grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Service; (g) collecting or harvesting any personally identifiable information, including account names, from the Service; (h) using the Service for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Service; (k) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (l) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.6 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; create usage limits for the Service; or permanently or temporarily suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason; provided, however, after you execute or have executed an Order Form with Crossbeam and during the Term set forth therein, Crossbeam will not materially decrease the functionality of the Service without prior notice. Upon suspension for any reason or no reason, you continue to be bound by this Agreement.
1.7 Termination of this Agreement
If you execute or have executed an Order Form with Crossbeam, during the Term, each party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise. If you terminate this Agreement for cause under Section 1.7(a), then Crossbeam will provide you a refund of the fees paid for the then-current Term, prorated by a fraction the numerator of which will be the number of days during the Term during which you had access to the Service and the denominator of which will be the total number of days during the Term.
If you have not executed an Order Form with Crossbeam, Crossbeam may terminate this Agreement at any time for any reason or no reason upon notice to you (which may be sent by email or posted on your User Account page). In the event of expiration or termination of this Agreement or any Order Form, (a) you will remain responsible for payment for the Service provided prior to the date of termination, (b) you will cease all use of the Service. Notwithstanding the foregoing or anything else in this Agreement, the terms of this Agreement that by their terms are perpetual or are otherwise intended to survive this Agreement will survive the termination or expiration of this Agreement.
1.8 Interactions with Other Users and Organizations
You are solely responsible for your connections and interactions with other Users and/or Organizations. You acknowledge that Crossbeam has no obligation to monitor the access to or use of the Service by any User or Organization or to review, disable access to, or edit any User Data, but has the right to do so to (a) operate, secure and improve the Service (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure User’s and Organization’s compliance with this Agreement; (c) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (d) respond to User Data that it determines is harmful or objectionable; or (e) as otherwise set forth in this Agreement. Crossbeam shall have no liability for your interactions with other Users or Organizations, or for any User’s or Organization’s action or inaction.
1.9 Service Location
The Service is controlled and operated from facilities in the United States. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. User Content; User Data and Feedback
2.1 User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, comments, questions, and communications with other Users, including data that we may collect from you as a result of your registration with the Service (other than User Data) (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
2.2 Uploading, Transmitting and Sharing User Data
Our Service enables you to either upload User Data from your systems into our Service or pull User Data from your existing SaaS tools or systems into the Service using an API provided by us or our third-party service providers. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use those certain APIs necessary to enable the Service to communicate with your existing third-party SaaS tools or systems to enable User Data to be pulled from or pushed to such SaaS tools or systems solely by or on behalf of you and as permissioned by you. Crossbeam may terminate this license at any time for any reason or no reason. Once your User Data is transferred into the Service, you may implement certain sharing rules and permissions under which certain selected User Data may be shared with Users and/or Organizations of your choice. We may also offer you functionality to enable you to pull User Data received by you from another User or Organization back into your tools or systems.
2.3 Rights to User Data and User Content
We claim no ownership rights over User Content or User Data created by you. The User Content and User Data you create remains yours. However, you understand that certain portions of the Service may allow other Users and Organizations with whom you maintain connections to view, edit, share, and/or otherwise interact with your User Content. Additionally, certain portions of the Service may allow other Users and Organizations (with whom you may or may not have connections with) to view your profile information and request to connect with you. By providing or sharing User Content through the Service, you agree to allow such Users and Organizations to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Crossbeam has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, uploading, displaying, transferring, inputting, providing, or otherwise making available any User Content or User Data on or through the Service, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Content and User Data for Crossbeam and its subcontractors and service providers to (a) provide the Service, (b) to improve and enhance the Service, including without limitation, for developmental, diagnostic and corrective purposes in connection with the Service, and (c) use such User Content and/or User Data to the extent such User Content and/or User Data is aggregated with similar content of other Users and/or Organizations and/or does not identify you or any of your customers as the source of such User Content and/or User Data. If Crossbeam shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from User Data or User Content, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual or the User or Organization. You further agree that Crossbeam will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
Following your use of the Service, you may submit a written request to Crossbeam to remove from the Crossbeam systems any User Data consisting of personally identifiable information and following the receipt of such request, Crossbeam shall promptly delete any such personally identifiable information from its systems. Crossbeam shall provide to you a copy of your User Data promptly following your written request for such User Data.
2.4 Your Responsibilities for User Data and User Content
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Crossbeam will not be responsible for any backup, recovery or other steps required to ensure that User Data and/or User Content is recoverable in the case of data loss. You are solely responsible for backing up your User Data and User Content on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data and User Content.
3. Our Proprietary Rights
3.1 Crossbeam Content
Except for your User Content and User Data, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, usage data, and User Content and User Data belonging to other Users or Organizations (the “Crossbeam Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Crossbeam and its licensors (including other Users and/or Organizations who post User Content to or share User Data via the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Crossbeam Content. Use of the Crossbeam Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Crossbeam under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Crossbeam does not waive any rights to use similar or related ideas previously known to Crossbeam, or developed by its employees, or obtained from sources other than you.
4. Paid Services
4.1 Payment Service Provider. Crossbeam’s payment processing services are provided by a third-party payment service provider.
4.2 Paid Services. You may choose to subscribe to our paid version of the Service. In connection with such paid Service, you will pay Crossbeam the then applicable fees described in the Order Form in accordance with, and for the Service period set forth in, the terms of such Order Form.
4.3 Billing Policies. Except as otherwise set forth in an Order Form, Crossbeam may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion upon thirty (30) days prior notice to you (which may be sent by email or posted on your User Account page). Any change to our fees shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
4.4 No Refunds. You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that Crossbeam suspends or terminates your User Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else.
4.5 Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
4.6 California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
5. No Professional Advice
If the Service provides professional information, such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
6. Text Messaging and Phone Calls
You may sign up to receive certain Crossbeam notifications or information via text messaging and/or automated phone calls. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
7. Confidentiality, Security and Privacy
“Confidential Information” means any information disclosed by either party pursuant to this Agreement that is (a) in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (c) under the circumstances should in good faith be considered to be confidential.
Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. Notwithstanding the foregoing, the obligations set forth in this Section shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (b) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (c) is approved in writing by the disclosing party; (d) is required to be disclosed by applicable legal authority provided that, if practicable, adequate prior written notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (e) is independently developed by either party without use of the Confidential Information from the other party. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party.
7.2 Data Privacy and Security
We have implemented commercially reasonable technical and organizational measures designed to secure your User Data and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Data or User Content for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide personally identifiable data or other sensitive information in order to use the Service and that you provide any such information at your own risk.
7.3 General Data Protection Regulation
To the extent that we process any Customer Personal Data (as defined in the Data Processing Addendum ("DPA") and (a) the Customer Personal Data relates to individuals located in the EEA; or (b) you are established in the EEA, the parties agree to process such personal data in accordance with the DPA accessible at https://www.crossbeam.com/assets/pdf/CrossbeamDPA.pdf. For the purposes of this Agreement: "personal data", "process" and "EEA" shall have the meanings as set out in the DPA.
7.4 California Consumer Privacy Act
The parties acknowledge and agree that Crossbeam shall act as a “Service Provider”, as such term is defined in the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (the “CCPA”), and shall collect, access, maintain, use, process and transfer “personal information”, as that term is defined by the CCPA (“CCPA Personal Information”) solely for the purpose of performing Crossbeam’s obligations under this Agreement for or on behalf of you and for no commercial purpose other than the performance of such obligations. Crossbeam shall delete and permanently destroy CCPA Personal Information upon written request by you. Notwithstanding the foregoing, nothing in this Agreement shall restrict Crossbeam’s ability to disclose CCPA Personal Information (a) to a subcontractor for a business purpose pursuant to a written agreement to protect CCPA Personal Information in the same manner as provided herein, (b) to a third party as necessary to comply with applicable laws, or (c) as otherwise permitted by the CCPA.
8. DMCA Notice
Since we respect artist and content owner rights, it is Crossbeam’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Crossbeam’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Crossbeam to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 1315 Walnut St, Suite 300
Philadelphia, PA 19107
Tel.: (267) 570-3944
Fax: (267) 907-8059
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Crossbeam and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Crossbeam’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Crossbeam has adopted a policy of terminating, in appropriate circumstances, Users and Organizations who are deemed to be repeat infringers. Crossbeam may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users or Organizations who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
9. Third-Party Links and Information
Sections 10.1 through 10.5 below will apply only if the parties execute or have executed an Order Form, during the Term set forth therein.
10.1 Crossbeam Indemnity. Crossbeam shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against you by a third party to the extent based upon a claim that (a) the Service violates any applicable law; (b) Crossbeam engages in willful misconduct under this Agreement; or (c) the Service infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against you by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement and that are attributable to such claim (provided that Crossbeam may not enter into any settlement or dispose of any claim in a manner that requires you to admit any liability or that places any material obligation on you without your prior written consent, not to be unreasonably withheld, conditioned, or delayed).
10.2 Crossbeam Options. Should the Service become, or in the opinion of Crossbeam be likely to become, the subject of such an infringement claim, Crossbeam may, at its option: (a) procure for you the right to use the Service at no cost to you; (b) replace or modify, in whole or in part, the Service to make it non-infringing; or (c) if neither (a) nor (b) are, in Crossbeam’s sole and absolute discretion, commercially practicable, terminate the Service, or remove the allegedly offending module thereof, and, refund the fees paid for such Service or module by you, less an amount determined by multiplying the fees paid for such Service or such module during the then-current Term by a fraction, the numerator of which is the number of months during the then-current Term during which you had use of the Service and the denominator of which is the total number of months during the then-current Term.
10.3 Exclusions from Crossbeam Indemnity. Crossbeam assumes no liability hereunder for: (a) any method or process in which the Service may be used; (b) any compliance with your specifications; or (c) the combination, operation or use of the Service with non-Crossbeam programs or data, and you shall indemnify and hold harmless Crossbeam and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (c) (inclusive) above.
10.4 Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
10.5 Sole Remedy for Infringement. THIS SECTION 10 SETS FORTH CROSSBEAM’S ENTIRE LIABILITY AND YOUR SOLE REMEDY FOR INFRINGEMENT AND/OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICE AND THIS AGREEMENT.
10.6 User Indemnity. You agree to defend, indemnify and hold harmless Crossbeam and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content, User Data or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
11. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Crossbeam or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Crossbeam, its subsidiaries, its affiliates, and its licensors do not warrant that any content, including without limitation, User Content or User Data, is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content, including without limitation, User Content or User Data, downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Further, Crossbeam does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Crossbeam will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
12. Limitation of Liability
12.1 this Section 12.1 will apply if the parties execute or have executed an Order Form. Except for claims arising out of a party’s willful misconduct or fraudulent misrepresentation, to the maximum extent permitted by applicable law, in no event shall each party, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service.
12.2 this Section 12.2 will apply if the parties have not executed an Order Form. To the maximum extent permitted by applicable law, in no event shall Crossbeam, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Crossbeam be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your User Account or the information contained therein.
12.3 To the maximum extent permitted by applicable law, Crossbeam assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Service; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (f) any errors or omissions in any content, including without limitation, User Content or User Data, or for any loss or damage incurred as a result of the use of any content, including without limitation, User Content or User Data, posted, emailed, transmitted, or otherwise made available through the Service; and/or (g) User Content or User Data or the defamatory, offensive, or illegal conduct of any third party. In no event shall Crossbeam, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding (a) the amount paid or payable by you to Crossbeam hereunder in the twelve (12) months immediately preceding the event giving rise to the claim for damages if you have executed an Order Form or (b) $100.00 if you have not executed an Order Form.
12.4 This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Crossbeam has been advised of the possibility of such damage.
12.5 Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
13. Governing Law
This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in New York County, New York State for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, including any provisional relief required to prevent irreparable harm.
14.1 Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 14.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
14.2 Notification Procedures. Crossbeam may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Crossbeam in our sole discretion. Crossbeam reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Crossbeam is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
14.3 Changes to the Agreement. Crossbeam may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service. This Section 14.3 will not apply if you execute or have executed an Order Form with Crossbeam, during the Term set forth therein.
14.4 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Crossbeam in connection with the Service, shall constitute the entire agreement between you and Crossbeam concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
14.5 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Crossbeam’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
14.6 Conflict. In case of any conflict between the terms of these Terms of Service and any Order Form, the terms of the applicable Order Form will prevail with respect to the subject matter thereof.
14.7 Contact. Please contact us at email@example.com with any questions regarding this Agreement.