CRAYON, INC TERMS OF SERVICE

This Crayon Service Offering Agreement (the “Agreement”) is entered into by and between the “Customer” listed on the Authorization Form to which this Terms of Service document is attached (“Authorization Form”) and Crayon, Inc. (“Crayon”) on the Effective Date, as listed on the Authorization Form. 

This Agreement governs Customer’s access to and use of the websites and other online products and services (collectively, the “Services”) provided by Crayon and listed in the Authorization Form.  The primary functionality of the Services is to provide Customer with analysis and aggregation of data about certain companies that Customer wishes to monitor (the “Competitors”) and to provide Customer, and its Authorized Users (as defined below) with actionable insights. The data made available by Crayon through the Services is information about the Competitors that is accessed via the internet or other publicly available means and is made accessible by the public generally (referred to in this Agreement as “Third Party Materials”).  The Services provide access to such information but Crayon does not control the actual content of the Third Party Materials.  “Authorized Users” means individual users authorized by Customer to use the Services, including accessing Customer’s account on the Services, and who Customer has supplied user identifications and passwords to, which may include Customer and its employees, consultants, contractors, agents, or other designees.

1. Authorized User Accounts and Account Security.  Customer controls whom it designates as an Authorized User.  Crayon cannot permit any company with which it competes directly to access its Services, and accordingly Customer agrees not to permit any person who it knows or should know is an employee or agent of a Crayon competitor to be an Authorized User.  Customer will maintain and require its Authorized Users to maintain reasonable security of its and their credentials and promptly notify Crayon if it discovers or suspects that someone has used its or their usernames or passwords without authorization. Customer and each Authorized User’s username and password is personal and may not be shared with any third parties.  Customer is responsible for all activities that occur regarding its credentials or otherwise under its account and for the actions and omissions of its Authorized Users with respect to the Services.

2. User Content.  Customer and its Authorized Users may create, post, store, send and share content, including messages, comments, text, photos, videos, and other materials (collectively, “User Content”). Customer and its Authorized Users’ search history on the Services is also User Content.  Authorized Users will typically add User Content to the Services in order to enhance the experience of other Authorized Users.  Common examples of User Content include commenting on insights, uploading Customer-generated insights, and synthesizing insights into Customer summaries and positions such as battlecards.  Other than the contractual limits set forth in this Agreement, Crayon has no control over what User Content any Authorized User may use to input to the Services.

Customer and its Authorized Users may not create, post, store, send or share any User Content that violates this Agreement or for which it does not have all the rights necessary to grant Crayon the license described herein. Except for the license Customer grants below, Customer retains all rights in and to its User Content, as between Customer and Crayon. 

Customer grants Crayon solely to the extent necessary for Crayon to provide the Services to Customer a nonexclusive, royalty-free, worldwide, and fully-paid license during the Term to use, publish and display (within the instance of the Crayon Services accessible only to Customer and its Authorized Users) the User Content and any name or username provided in connection with the User Content. When Customer posts or otherwise shares User Content on or through the Services, Crayon will not disclose the User Content to any third parties except (a) as necessary for Crayon to provide, or improve, the Services and only to those third parties that have agreed to comply with substantially similar non-disclosure obligations provided for herein, (b) to comply with applicable law or if required by any governmental entity or (c) to enforce its rights under this Agreement.  Customer also grants Crayon the right to use its name and logo on Crayon’s website and its marketing materials to identify Customer as a customer of Crayon.

Customer and its Authorized Users may not create, post, store, send or share any User Content that:

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
• Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
• Infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• Impersonates, or misrepresents their affiliation with, any person or entity;
• Contains any unsolicited promotions, political campaigning, advertising or solicitations;
• Contains any private or personal information of a third party without such third party’s consent;
• Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
• Restricts or inhibits any other person from using or enjoying the Services, or that may expose Crayon or others to any harm or liability of any type.

In addition, although Crayon has no obligation to screen, edit or monitor User Content, it may delete or remove User Content that in Crayon’s reasonable judgment is objectionable or is in violation of any of the foregoing restrictions.

3. Prohibited Conduct. Customer is solely responsible for its and its Authorized Users’ conduct while accessing or using the Services.  In connection with its and their use of the Services, Customer and its Authorized Users will not violate any applicable law, contract to which Customer is bound, or the intellectual property, privacy or other rights of any third party. Without limiting the foregoing, Customer and its Authorized Users will not:

• Use or attempt to use another Authorized User’s account without authorization from that Authorized User and Crayon;
• Knowingly use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
• Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Services;
• Attempt to circumvent any content-filtering techniques Crayon employs or attempt to access any feature or area of the Services that Customer is not authorized to access;
• Develop any scripts designed to scrape or extract data from the Services;
• Use any data mining, robots or similar data gathering or extraction methods; or
• Use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.

4. Subscriptions and Renewals.  This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with its terms. The subscription period shall be as specified in the Authorization Form (each, a “Subscription Period”).  Unless otherwise specified in the Authorization Form, each Subscription Period will automatically renew on its expiration date for a subsequent Subscription Period of the same duration and at the then current Subscription Fees (as defined below) unless Customer elects not to renew the applicable Subscription by notifying Crayon in writing at least sixty (60) days prior to the renewal date. The initial Subscription Period and any such renewal periods shall be referred to herein (individually and collectively) as the “Term.”  Customer may cancel the Services during a Subscription Period, but Customer will not be relieved of the obligation to pay fees for the committed Subscription Period nor refunded any fees for any such voluntary cancellation.

5. Payment.  The fees for the Services are as set forth in the Authorization Form (collectively, the “Subscription Fees”).  All fees are in US dollars unless stated otherwise.  Customer will pay Crayon the Subscription Fees and other amounts specified in the Authorization Form (including any one-time set up fees). Customer will pay each of Crayon’s invoices within thirty (30) days after its receipt of the invoice by the payment method indicated in the Authorization Form provided that if Customer has a bona fide dispute regarding any amount invoiced hereunder, Customer may, upon written notice to Crayon, withhold payment of the disputed amount (but shall pay the undisputed portion of the invoice) pending resolution of the dispute.  The parties agree to work together expeditiously to resolve any such dispute. All Subscription Fees are exclusive of taxes and Customer will pay to Crayon all applicable taxes on the Services that Crayon is legally obligated or allowed to collect from Customer (other than taxes on Crayon’s income).

Any Subscription Fees not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid.  Further, in the event of any action by Crayon to collect any amount not paid when due, Customer will pay or reimburse Crayon’s costs of collection (including, without limitation, any reasonable attorneys’ fees and court costs).

6. Usage Parameters.  The Authorization Form will list limitations on the licensed scope for the Services.  This is typically limited by the number of Competitors Customer may use the Services to track, but could also include a limit to the number of Authorized Users.  Unless the parties enter into an additional or replacement Authorization Form covering different usage parameters, and under which Customer agrees to pay the negotiated additional fee, Customer may not use the Services beyond the licensed scope indicated in the Authorization Form.  

7. Limited License; Copyright and Trademark. The Services are owned by or licensed to Crayon and are protected under both United States and foreign laws. Except as explicitly stated in this Agreement, Crayon and its licensors reserve all rights in and to the Services. Subject to Customer and its Authorized Users’ compliance with these the terms of this Agreement, Customer and its Authorized Users are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable, worldwide license to access and use the Services for Customer’s own internal business use, and solely for the purposes of performing monitoring and strategic analysis on Competitors.  The license granted by Crayon is subject to the terms of this Agreement and does not include any right to (a) sell, resell or use the Services commercially for the benefit of any third party, (b) except as expressly set forth herein or as otherwise expressly permitted by Crayon or its licensors, copy, reproduce, distribute, publicly perform or publicly display the Services; (c) except as expressly set forth herein, modify the Services, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Services; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use the Services other than as permitted hereunder.

8. AI/Machine Learning. Certain features of Crayon’s Services may incorporate or use certain large language models or other generative AI tools (“AI Tools”). In connection with the Services, data and other content may be provided to the AI Tools (“Input”) in order for the AI Tools to generate certain output (“Output”). Customer acknowledges and agrees that Customer will not use images or other personal information of individuals as Input without their consent. Customer also acknowledges the inherent limitations of any AI Tools and agrees to review all Output to ensure its accuracy and applicability.

9. Feedback.  If Customer provides to Crayon any suggestions, comments and/or other feedback regarding Crayon’s products and/or services (“Crayon Feedback”), Customer hereby grants to Crayon a non-exclusive, perpetual, worldwide, irrevocable, royalty-free license, including the right to sublicense, to use the Crayon Feedback for the purposes of developing, improving, modifying and/or enhancing Crayon’s Services.  Crayon acknowledges that any Crayon Feedback provided by Customer to Crayon is provided "as is" and Customer makes no representations or warranties of any nature whatsoever, express or implied, including without limitation, any warranties of fitness for a particular purpose or merchantability or against infringement or concerning the accuracy, suitability or usefulness of such Crayon Feedback.

10. Mutual Indemnification.  

a. Customer Indemnification.  To the fullest extent permitted by applicable law, Customer will defend Crayon and its officers, directors, agents, partners and employees (individually and collectively, the “Crayon Parties”) against any and all third-party claims, demands or suits arising out of (a) Customer or its Authorized User’s violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (b) User Content; or (c) Customer or its Authorized User’s breach of Section 3 of this Agreement (collectively, “Crayon Claims”).  The Crayon Parties will promptly notify the Customer of any Crayon Claims and will cooperate with Customer in defending such Crayon Claims.  Customer will pay all fees, costs and expenses associated with defending such Crayon Claims (including, but not limited to, reasonable attorneys’ fees) and will have control of the defense or settlement of any such Crayon Claims.

b. Crayon Indemnification.  To the fullest extent permitted by applicable law, Crayon will defend Customer and its officers, directors, agents, partners and employees (individually and collectively, the “Customer Parties”) against any and all third party claims, demands or suits arising out of any allegation that the Services, but not including the Third Party Materials, infringe any patent, copyright or trademark (“Customer Claims”).  The Customer Parties will promptly notify Crayon of any Customer Claims and will cooperate with Crayon in defending such Customer Claims.  Crayon will pay all fees, costs and expenses associated with defending such Customer Claims (including, but not limited to, reasonable attorneys’ fees) and will have control of the defense or settlement of any such Customer Claims.   In addition, if a claim described above may be or has been asserted, Crayon will, at Crayon’s option and at its sole expense, either (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services to eliminate the infringement or alleged infringement; or (iii) terminate the Agreement and provide Customer a refund of any prepaid but unused fees.  The foregoing remedies and the defense and indemnification obligations set forth in this paragraph state the Customer Parties’ exclusive remedies in relation to infringement in connection with the Services.

11. Disclaimers and Warranties.  As part of the Services, Crayon will provide access to Third-Party Materials.  Customer acknowledges and agrees that its use of Third-Party Materials may be subject to third party terms and conditions that govern such Third-Party Materials. Customer acknowledges that Crayon does not own, create or control the Third-Party Materials and that the Third-Party Materials may include content that is objectionable to Customer or its Authorized Users.  Without limiting the foregoing, Crayon does not control, endorse or take responsibility for any User Content or third-party content (including any Third-Party Materials) available on or linked to by the Services.  In addition, and further without limiting the foregoing, Crayon’s Service may facilitate access to certain Third Party Materials using APIs provided by third parties, and Customer acknowledges that, where indicated in the Crayon Third Party API Notices page, available at www.crayon.co/third-party-api-notices, Customer is bound by the relevant specific third party terms of services as indicated there. 

Crayon represents and warrants that (i) the Services will perform in material compliance with its documentation and be provided in a professional manner in accordance with industry standards and (ii) to the best of its knowledge, the Services do not contain any viruses, worms or other harmful computer code.  If Crayon is not able to cure any breach of the above warranties within 30 days of written notice of such breach, Customer shall have the right to terminate this Agreement and receive a pro rata refund for the unused portion of the Term.

Each party represents and warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is (a) on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which it is doing business, or (b) subject to economic or trade sanctions imposed by the United States Government, which restrict U.S. companies from engaging in financial or other transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions.

Except as expressly provided for herein, the Services are provided without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. and Crayon does not represent or warrant that the Services are fully accurate, complete, reliable, current or error-free.

12. Limitation of Liability.  EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, CUSTOMER’S PAYMENT OBLIGATIONS (INCLUSIVE OF INTEREST AND COLLECTION COSTS) OR CUSTOMER’S BREACH OF SECTION 7 OF THIS AGREEMENT: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO CRAYON DURING THE TWELVE MONTH PERIOD PRIOR TO SUCH CLAIM.

13. Confidentiality.  “Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”) related to this Agreement, including disclosures prior the execution of this Agreement whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Confidential Information of each party includes the terms and conditions of the Agreement and all Authorization Forms, including pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Recipient; (b) was known to the Recipient with no obligation of confidentiality prior to disclosure by Discloser, as proven by records of Recipient; (c) is disclosed to Recipient by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; (d) is at any time independently developed by Recipient as proven by records of Recipient; or (e ) the Third Party Materials.

Except as provided herein, Recipient shall not disclose or otherwise make available any Confidential Information of the Discloser to anyone except those of its employees, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Furthermore, each party agrees to not use the other party’s Confidential Information except pursuant to, and in order to carry out, the terms of this Agreement.  Each party shall safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information.

If the Recipient is compelled by law to disclose Confidential Information of the Discloser, then to the extent legally permitted, Recipient shall provide the Discloser with prior notice of the compelled disclosure and reasonable assistance, at Discloser’s cost, if the Discloser wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.

14. Processing of Personal Information and User Content.  By accessing or using the Services, Customer and its Authorized Users consent to the processing, transfer and storage of information about it and its Authorized Users (“User Information”) in and to the United States.  Crayon will process any personal information contained in the User Information for the sole purpose of providing the Services. For purposes of this Section, personal information shall mean any information that identifies, relates to, describes, references, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, household, or device. Crayon will not sell the personal information, and will not retain, use, or disclose the personal information except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a competent governmental body. Crayon’s use and disclosure of User Content is set forth in its Privacy Policy, a copy of which is located at: (https://www.crayon.co/privacy/). 

15. Dispute Resolution; Binding Arbitration.  Except for disputes in which a party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, or with respect to court proceedings in which Crayon may seek to recover payment due from Customer, Customer and Crayon waive their rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. Instead, all disputes arising out of or relating to this Agreement or the Services will be resolved through confidential binding arbitration held in Boston, Massachusetts in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS web site (www.jamsadr.com) and are hereby incorporated by reference. 

Customer and Crayon each agree that this Agreement affects interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law.  As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Customer and Crayon each agree that for any arbitration Customer initiates, it will pay the filing fee and Crayon will pay the remaining JAMS fees and costs.  For any arbitration initiated by Crayon, Crayon will pay all JAMS fees and costs.  

16. Governing Law and Venue.  This Agreement will be governed by and construed and enforced in accordance with the laws of Massachusetts, without regard to conflict of law rules or principles (whether of this or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration, as well as any appeals and enforcement of arbitration awards, will be resolved in the state or federal courts of Massachusetts and the United States, respectively, sitting in Boston, Massachusetts, except that Crayon, in its discretion, may also bring a proceeding for payment of fees in any court having jurisdiction over Customer.

17. Support.  Customer may contact Crayon by phone Monday-Friday between 9 AM EST - 5 PM EST at 857-990-4800 or by email at support@crayon.co for technical support for the Services.

Crayon will use commercially reasonable efforts to make the Services available 99.5% of the time during each calendar month (measured on a calendar monthly basis), excluding scheduled maintenance time (which may occur during the hours of 10PM-8AM ET Monday through Friday, and weekends 10pm ET Friday - 8AM ET Monday), outages or delays of third party connections, suppliers or utilities, including but not limited to the internet, or other reasons beyond Crayon’s control.

18. Export Compliance.  All or part of the Services may be subject to U.S. export control and economic sanctions laws (“Export Controls”). Customer agrees to abide by all Export Controls as they relate to its and its Authorized Users’ access and use of the Services. 

19. Termination. The Term of this Agreement may be terminated by either party (a) if the other party materially breaches a material term of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the other party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. In the event Customer terminates this Agreement for material breach by Crayon, once the material breach is agreed to have occurred, or adjudicated as such, Crayon will refund, from the termination date, all fees paid (or then payable) by Customer covering any portion of the Subscription Period beyond such termination date.

20. Severability.  If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

21. Miscellaneous.  This Agreement constitutes the entire agreement between Customer and Crayon relating to the subject matter hereof, superseding all prior agreements, representations, warranties, promises or conditions (if any) in connection therewith, whether oral or written.  No modification, amendment, supplement to, or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties. Neither this Agreement nor any part hereof may be assigned (whether by operation of law or otherwise) by either party without the other party’s prior written consent (such consent not to be unreasonably withheld), and any such assignment will be void.  Notwithstanding the foregoing, each party may assign this Agreement to any successor in the event of a merger, sale or other disposition of a majority of its assets upon written notice to the other party, provided that Customer may not assign this Agreement if such assignee is a competitor of Crayon.  This Agreement will be binding upon the parties’ respective successors and assigns.  This Agreement may be executed in one or more counterparts, by facsimile or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any rights or obligations set forth in this Agreement which by their nature are intended to survive, shall survive termination hereof.   The failure of either party to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.