Compliancy Group LLC – THE GUARDTM: 

LICENSE, IMPLEMENTATION AND SERVICES AGREEMENT

THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN. 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day, month, and year first written below.

This Terms of Use (“TOU”) and the binding Quote attached (“Quote”) (collectively, the “Agreement”) are entered between you (“Licensee”) and Compliancy Group, LLC (“Licensor”).

SECTION 1: LICENSE

  1. The services provided (referred to as “The GuardTM” or “Application Services”) are a Licensor Internet-based suite of software made available as a service. Upon payment of the license fees, Licensor grants to Licensee a limited, nonexclusive, nontransferable right to access and use (and to permit Licensee’s Authorized Users (as defined below) to access and use) the Application Services for Licensee’s own internal business purposes and the internal business purposes of its Affiliates (as defined herein), each in accordance with the terms and conditions of this Agreement and any user documentation provided online. For the purposes of this Agreement, an “Affiliate” of an entity, is any entity controlled by, controlling, or under common control with such entity.
  2. “Authorized Users” are those employees and contractors of Licensee and its Affiliates who are authorized to use the Application Services and have been assigned an individual user ID by Licensor. Licensee shall require any contractors that are designated as Authorized Users to be bound by confidentiality and license provisions that are substantially as protective as set forth in this TOU. Licensor agrees to provide Authorized Users with access to the Application Services via https://compliancy-group.com and any successor site (“Web Site”).
  1. Designated Representative for Compliance Tracking Solution. Licensee shall appoint an individual to serve as Licensee’s Designated Representative and provide the name and contact information to Licensor. This individual shall, in addition to performing any specific duties mentioned herein, attend all Guard Coaching and Training sessions. This person shall ensure that Licensee uses good-faith efforts in the process of learning The GuardTM, and during Licensor-provided training for The GuardTM. Licensee shall, at all times, use reasonable efforts to avoid changing the Designated Representative. In the event a change of Designated Representative is required, Licensee shall use reasonable efforts to provide Licensor with at least at least 10 days prior written notice of any change in the Designated Representative. Licensor reserves the right to reject Licensee’s choice of replacement Designated Representative, should Licensor determine the choice to be unsuitable.
  1. Licensee acknowledges and agrees that it is possible to link to third party applications and services (“Third Party Services”). Such Third Party Services are not part of the Application Services, and Licensor disclaims all responsibility, warranties and liability pertaining to same. Any such Third-Party Service shall be provided to Licensee pursuant to the terms and conditions offered by such Third-Party Services provider, and Licensor is not a party to any such agreement.

SECTION 2: USER ID AND PASSWORD PROTECTION POLICIES

All Authorized Users of the Application Services will be given unique User IDs. Authorized Users shall keep confidential the User IDs and activating passwords for the Application Services. Authorized Users are prohibited from transferring or sharing the User IDs and from revealing the activating passwords to any other person(s). Any violation of the foregoing may result in an immediate termination of Licensee’s access rights to the Application Services. Licensee shall be responsible for all assigned account User IDs, active passwords, granting permissions, authorizing vendor/client account associations and any related misuse.

SECTION 3: INTELLECTUAL PROPERTY RIGHTS

  1. Licensee acknowledges that the Application Services are owned by Licensor, and constitute valuable intellectual property of Licensor including without limitation, all ancillary and interface software, all current and future enhancements, modifications, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, and patents therein. Licensor reserves all rights in the Application Services not expressly granted to Licensee or any Authorized Users hereunder. Neither Licensee nor any Authorized User may: (a) modify, translate,

reverse engineer, decompile, disassemble, creative derivative works of, or otherwise attempt to derive any source code of the Application Services; (b) alter or copy, or permit a third party to alter or copy, any part of the Application Services; (c) use the Application Services to provide services to third parties; (d) incorporate the Application Services into other software; (e) use the Application Services except as described herein; or (f) sublicense, distribute, sell, assign, transfer, lease, loan, pledge, or rent the Application Services to any third party

  1. Nothing in this Agreement shall preclude Licensor from implementing features, ideas, processes or technology suggested by a customer, and promoting to the marketplace. Licensor shall own any rights, intellectual property, and title to the code associated with said implementation. Except as expressly permitted hereby, copying of any portion of the content and intellectual property included in the Application Services is prohibited. Licensee shall not remove any trademark or copyright notices from the Application Services or any provided documentation. Any documentation provided by Licensor for use by Licensee on its website, documenting successful completion of The GuardTM, shall be used only during the term of this Agreement, and only for the period of time Licensor provides for in writing. Use of The GuardTM and Licensor’s marks after the term of this Agreement and without documentation of successful compliance tracking solution completion and annual re- assessment, constitutes a material breach of this Agreement. Upon any cancellation, termination, or expiration of this Agreement for any reason, the Licensee may not sell any products or services using the Licensor’s marks, without the express written consent of Licensor.
  2. Data Retention and Ownership of Licensee Information. Licensor shall maintain all transaction and customer data throughout the lifetime of a Licensee’s subscription. Licensor does not own, nor will Licensor use or disclose to any third party, any data, information, or material (“Licensee Data”) that Authorized Users submit to the Application Services. Licensee is responsible for storing and regularly downloading any data created by the Application Services necessary for audit and other regulatory purposes. The Licensee has sole responsibility for all Licensee Data. Licensee hereby grants to Licensor a limited, non- exclusive, nontransferable license to access, host, copy, format, display, distribute, store and use (and to permit Licensor’s subcontractors to do the same) Licensee Data for the sole and exclusive purpose of providing the Application Services for the benefit of Licensee in accordance with this Agreement. Licensee hereby grants Licensor access to Licensee’s business associate and vendor contact information.
  1. Business Associate Agreement. Compliancy Group does not provide consulting services. If Licensee desires to store protected health information (PHI) in The Guard’s Incident Management/Reporting feature, Licensee must first enter into a separate business associate agreement with Compliancy Group. Compliancy Group can provide Licensee with a proposed business associate agreement upon Licensee request.

SECTION 4: TERM & TERMINATION

  1. The license to the Applications Services is effective for the term indicated in the order form unless terminated as set forth herein.
  1. Mutual Termination Rights. In the event that either party is in breach of any material obligation set forth in this Agreement, that party shall notify the other party in writing. If the breaching party has not cured its breach within sixty (60) days following such notice, then the other party may elect to terminate this Agreement. In the event of termination by Licensor, Licensee shall be entitled to a pro-rata refund.
  1. Bankruptcy. If one of the parties is declared insolvent or bankrupt, either party may immediately terminate this Agreement.
  1. Licensor may terminate this Agreement, in its sole discretion, immediately for certain Licensee conduct or convenience.
  1. Effect of Termination. Upon termination of the Application Services, Licensee shall no longer be permitted access to the Application Services

and each Authorized User ID shall be deactivated. Termination, for whatever reason, shall not affect Licensor’s entitlement to any sums due for Application Services performed prior to such termination.

SECTION 5: CONFIDENTIALITY

  1. Definition. “Confidential Information” shall mean information, whether provided or retained in writing, verbally, by electronic or other data transmission or in any other form or media whatsoever or obtained through on-site visits and whether furnished or made available before or after the date of this Agreement, that is confidential, proprietary or otherwise not generally available to the public including, without limitation, trade secrets, marketing and sales information, product information, technical information and technology, personally identifiable information, and supplier information, information about trade techniques and other processes and procedures, financial information and business information, compliance information, plans and prospects.
  2. Protection of Confidential Information. Licensee shall not disclose to any third party during the Term or after the termination or expiration of this Agreement, and Licensee shall keep confidential all Confidential Information of the Licensor, protecting the confidentiality thereof with the same level of efforts that it employs to protect the confidentiality of its own confidential information of like importance and in any event, by reasonable means. Licensee may disclose the Confidential Information of Licensor to its personnel engaged in a use permitted by this Agreement and with a need to know, provided that such personnel (i) are directed to treat such Confidential Information confidentially and not to use it other than as permitted by hereby and (ii) are subject to a legal duty to maintain the confidentiality thereof. Licensee shall not use the Confidential Information of the Licensor except as necessary in and during the performance of this Agreement, or as expressly permitted hereunder. Licensee shall be responsible for any improper use or disclosure of any Confidential Information by Licensee’s officers, partners, principals, employees, agents or independent contractors. Licensee acknowledges that elements of the Confidential Information of Licensor, including, without limitation, the Application Services, and the terms, conditions and fees under this Agreement, are trade secrets of Licensor.
  1. Confidentiality Exceptions. The obligations of this Section shall not apply (i) to any Confidential Information for a period longer than it is legally permissible to restrict disclosure of Confidential Information or (ii) to any Confidential Information that Licensee can demonstrate was: (a) at the time of disclosure to Licensee in the public domain or commonly known in Licensee’s industry; (b) after disclosure to Licensee entered the public domain through no fault of Licensee; (c) in the possession of Licensee at the time of disclosure to it, if Licensee was not then under an obligation of confidentiality with respect thereto; (d) received after disclosure to Licensee from a third-party who had a lawful right to disclose such Confidential Information to it; (e) independently developed by Licensee without reference to Confidential Information of Licensor; or

(f) disclosed with the prior written approval of the Licensor.

  1. Required Disclosure. Either party may disclose Confidential Information (including, as applicable, Licensee Data) to the extent required by law or by order of a court or governmental agency; provided, however, that the recipient of such Confidential Information shall give the owner of such Confidential Information prompt notice, and shall provide reasonable cooperation to the owner of such Confidential Information if the owner wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.
  1. Notification; Survival. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party shall immediately notify the disclosing party. Notwithstanding anything in this Agreement to the contrary, the obligations of the parties set forth in Section 5(A)-(E) with respect to Confidential Information will remain in effect during the term of this Agreement and (i) with respect to Confidential Information that does not qualify as a trade secret under applicable law, for a period of three (3) years following the expiration or termination of this Agreement, and (ii) with respect to trade secrets, for so long as such Confidential Information remains a trade secret.

SECTION 6: LICENSOR INDEMNIFICATION.

  1. Licensor shall defend, indemnify, and hold harmless Licensee from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with third party claims based on allegations that the Application Services as delivered by Licensor hereunder and used by Licensee in accordance with the terms and conditions of this Agreement, infringes upon or misappropriates the intellectual property rights of such a party.
  1. Licensor shall not indemnify or be liable for any claim or Losses if the finding of infringement is based on (i) the use of a superseded or altered release of the Application Services; (ii) the modification of the Application Services by Licensee or any third party; (iii) the use of the Application Services other than in accordance with its documentation and this Agreement or in combination with any intellectual property, hardware, software, data or technology not supplied by Licensor or approved by Licensor in writing; or (iv) any intellectual property supplied by Licensee (including, but not limited to, the Licensee Data).
  1. If Licensee is enjoined or otherwise prohibited, or is reasonably likely to be enjoined or prohibited, from using the Application Services or any part thereof, due to a claim covered by Licensor’s indemnification obligations under this Section, then Licensor shall, at its sole expense and option: (i) attempt to procure for Licensee the right to continue using the infringing portion of the Application Services; (ii) modify the infringing portion of the Application Services so as to render it non-infringing while maintaining substantially similar functionality; or (iii) replace the infringing portion of the Application Services with a functionally substantially similar non-infringing item. If Licensor is unable to procure any of the foregoing after using commercially reasonable efforts to do so, Licensor shall grant Licensee a refund of all prepaid but unused sums paid to Licensor for such infringing item, and Licensee shall cease using such infringing portion of the Application Services. This Section 6(C) states Licensor’s entire liability and Licensee’s sole exclusive remedy for any claim of infringement.
  1. EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS TOU, THE APPLICATION SERVICES ARE PROVIDED ‘AS IS,’ AND LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (INCLUDING ANY GUARANTEES OF LEGAL COMPLIANCE), ANY WARRANTIES OF NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT, LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOVERNMENTAL COMPLIANCE, SANCTIONS, LOSS OF DATA OR OTHER INFORMATION) ARISING OUT OF, OR RELATED  TO  THIS  AGREEMENT,  INCLUDING, WITHOUT LIMITATION,  LIABILITY  RELATED  TO  THE  USE  OF  OR UNAVAILABILITY OF THE APPLICATION SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMIT OF LICENSOR’S LIABILITY, INCLUDING ANY LIABILITY OF ANY LICENSOR CONTRACTOR OR AFFILIATE, TO LICENSEE OR ANY THIRD PARTY CONCERNING THE PERFORMANCE OR NON-PERFORMANCE OF LICENSOR, OR IN ANY MANNER RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, BY STATUTE, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE, SHALL IN THE AGGREGATE BE LIMITED TO THE FEES PAID BY LICENSEE TO LICENSOR HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.

SECTION 7: WARRANTIES AND INDEMNITY OF LICENSEE

Licensor represents and warrants that it has the legal right to enter into this Agreement and perform its obligations hereunder. Except as provided in the foregoing Section 6, Licensee shall to the fullest extent allowed by law, defend, indemnify and hold harmless Licensor, any

Third-Party provider and any third-party contributor to the Application Services, from and against any and all claims and Losses arising from Licensee’s use of the Application Services, except that this indemnity shall not apply where such third-party claim or Losses would not have occurred but for the gross negligence or the willful misconduct of Licensor.

SECTION 8: INDEMNIFICATION PROCEDURES

Promptly after receipt of notice by any entity entitled to indemnification under this Agreement of the commencement of any claim (each an “Indemnified Party”) that they will seek indemnification for under this Agreement, the Indemnified Party shall notify the party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) of such claim in writing. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that it can demonstrate that its rights have been prejudiced as a result of such failure. Provided that the Indemnifying Party promptly and appropriately performs its indemnification obligations hereunder, the Indemnifying Party shall be entitled to have sole control over the defense and settlement of such claim. The Indemnified Party shall provide reasonable cooperation (at the Indemnifying Party’s expense) and full authority to defend or settle the Claim. The Indemnifying Party shall keep the Indemnified Party fully informed about the status of any litigation, negotiations, or settlements of any such Claim. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with, counsel of its own choosing.

SECTION 9: SERVICE LEVEL PROVISIONS

Licensor shall guarantee an uptime percentage equal to or greater than 95% (“Uptime Guarantee”). If Licensee promptly notifies Licensor of a failure to maintain the Uptime Guarantee, Licensee shall be refunded a pro-rata portion of the monthly fee. For example if actual uptime is 92%, Licensee shall be eligible for a 3% discount. Licensor has not failed to meet the Uptime Guarantee if (and to the extent that) any such failure is directly and solely caused by an event not under Licensor’s reasonable control (and only if such failure is not the result of a breach of this Agreement or other act or omission by Licensor.

SECTION 10: PAYMENT

  1. License Fees. The annual subscription fee entitles the Licensee’s Authorized Users to the use of the Application Services; technical support via email and support tickets; periodic Application Services updates; and access to the user documentation.
  1. Additional Fees. Licensee shall be responsible for any charges for Application Services incurred or authorized through use of any User ID assigned to Authorized Users even if beyond the terms set forth herein.
  2. Taxes. Licensee shall be solely liable for any state or local sales, use, excise, value-added or other taxes or a similar nature, if any, that may be due on account of Licensee’s and Authorized Users’ use of the Application Services.
  3. Invoicing. All payments hereunder shall be made in U.S. dollars. Unless otherwise stated of the Order Form, all amounts invoiced hereunder shall be due and payable thirty (30) days after the date of the invoice. Not more than once every twelve months during the term of the Agreement, Licensor reserves the right to change the fees charged under this Agreement, to institute new or additional fees, and to change its policies, methods, or procedures with respect to pricing and billing, upon not less than sixty (60) days’ notice to Licensee. During any such notice period Licensee shall have the option to terminate access to the Application Services rather than pay the increased fees.
  1. Failure to Pay. If Licensee fails to pay any balance for one (1) month following the date upon which such charge was incurred, Licensor reserves the right to suspend its performance without notice to Licensee and without any liability for any damages incurred as a result of such suspension. If Licensor elects to suspend such performance, upon payment of the appropriate balance (and, if requested by Licensor, receipt of adequate assurances of future payment from Licensee) Licensor may, at its sole discretion, reinstate its performance.

SECTION 11. CHOICE OF LAW AND VENUE; SUBPOENAS

  1. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New York without giving effect to principles of conflicts of law. Licensee agrees to submit to the personal jurisdiction of the State and Federal courts located in New York County in the State of New York with respect to any legal proceedings, that may arise out of or in connection with this Agreement.
  2. LICENSEE AND LICENSOR BOTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
  1. If Licensor is subpoenaed, with respect to services provided to Licensee, Licensee will reimburse Licensor all approved reasonable and necessary costs associated with the subpoenaed actions.

SECTION 12: SEVERABILITY

If any part of this Agreement is found void or unenforceable, it will not affect the validity of the rest of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in a writing signed by both parties.

SECTION 13: ENTIRE AND FINAL AGREEMENT

This Agreement and any other Exhibits, Schedules, Appendices, or other documents referenced herein, constitute the entire and final agreement between the parties with respect to the subject matter hereof, and supersede all other communications, including, but not limited to, all prior agreements or proposals, whether written or oral, between the parties with respect to such subject matter.

SECTION 14: GENERAL

  1. THE LICENSEE ASSUMES ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO THE SELECTION OF THE SERVICES TO ACHIEVE LICENSEE’S INTENDED RESULTS.
  2. In its sole discretion, Licensor may provide additional services (including auditing), as agreed in writing between the parties. There is no entitlement to such additional services, and Licensee should have no expectations of receiving such additional services. Licensor does not provide legal or consulting advice. The Services do not constitute legal or professional advice.
  3. Neither party shall be, or considered to be or permitted to be, an agent, employee, joint venture, partner, or subcontractor of the other.
  1. The headings of sections of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement.
  1. The provisions contained in this Agreement that by their context are intended to survive termination or expiration will survive.
  1. A failure or delay in enforcing an obligation or exercising a right or remedy does not amount to a waiver of that obligation, right or remedy. A waiver of a breach of a term does not amount to a waiver of a breach of any other term in the Agreement. A waiver of a particular obligation in one circumstance will not prevent a party from subsequently requiring compliance with the obligation on other occasions.
  1. Licensor may use the Licensee corporate name and logo for marketing purposes, such as website, articles and press releases, only during the Term, and if applicable, any Renewal Term, of this Agreement.

Prior versions

Prior to October 2023

Prior to March 2023

Prior to December 2022