SECTION 1: LICENSE
- A.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 as provided by the applicable Reseller partner, 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 TOU and any user documentation provided online. For the purposes of this TOU, an “Affiliate” of an entity, is any entity controlled by, controlling, or under common control with such entity.
B. “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 are set forth in this TOU. Licensor agrees to provide Authorized Users with access to the Application Services via https://www.compliancy-group.com and any successor site (“Web Site”).
C. 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.
D. 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: INTELLECTUAL PROPERTY RIGHTS
A. 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
B. . Nothing in this TOU 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.
C. 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 not storing any protected health information (PHI) on the Application Services and for storing and regularly downloading any data created by the Application Services necessary for audit and other regulatory purposes. The Licensee has sole responsibility 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.
SECTION 3: CONFIDENTIALITY
A. 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 TOU, 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.
B. Protection of Confidential Information. Licensee shall not disclose to any third party during the Term or after the termination or expiration of this TOU, 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 TOU 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 TOU, are trade secrets of Licensor.
C. 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.
D. 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.
E. 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 4(A)-(E) with respect to Confidential Information will remain in effect during the term of this TOU 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 TOU, and (ii) with respect to trade secrets, for so long as such Confidential Information remains a trade secret.
SECTION 4: LICENSOR INDEMNIFICATION.
A. 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 TOU, infringes upon or misappropriates the intellectual property rights of a third party.
B. 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 TOU 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).
C. 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 5(C) states Licensor’s entire liability and Licensee’s sole exclusive remedy for any claim of infringement.
D. 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 5: WARRANTIES AND INDEMNITY OF LICENSEE
Licensor represents and warrants that it has the legal right to enter into this TOU and perform its obligations hereunder. Except as provided in the foregoing Section 5, 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 6: INDEMNIFICATION PROCEDURES
Promptly after receipt of notice by any entity entitled to indemnification under this TOU of the commencement of any claim (each an “Indemnified Party”) that they will seek indemnification for under this TOU, 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 TOU 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 7: CHOICE OF LAW AND VENUE; SUBPOENAS
- This TOU 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 TOU.
- 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.
- 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 8: SEVERABILITY
If any part of this TOU is found void and unenforceable, it will not affect the validity of the balance of the TOU, which shall remain valid and enforceable according to its terms. This TOU may only be modified in a writing signed by both parties.
SECTION 9: ENTIRE AND FINAL AGREEMENT
This TOU, 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 10: GENERAL
- If Licensee fails to pay any outstanding 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.
- THE LICENSEE ASSUMES ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO THE SELECTION OF THE SERVICES TO ACHIEVE LICENSEE’S INTENDED RESULTS.
- Neither party shall be, or considered to be or permitted to be, an agent, employee, joint venture, partner, or subcontractor of the other.
- The headings of sections of this TOU are for convenience of reference only and will not affect the meaning or interpretation of this TOU in any way.
- The provisions contained in this TOU that by their context are intended to survive termination or expiration will survive.
- 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 TOU. A waiver of a particular obligation in one circumstance will not prevent a party from subsequently requiring compliance with the obligation on other occasions.
- 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 TOU.