THIS END USER LICENSE AGREEMENT ("CLIENT EULA") IS A LEGAL AGREEMENT BETWEEN YOU ("CLIENT" OR "YOU") AND CBIZ PIVOT POINT SECURITY INC. ("PPS") (EACH A "PARTY", COLLECTIVELY, THE "PARTIES") GOVERNING YOUR USE OF THE SOFTWARE AND RELATED SERVICES SET FORTH ON THE STATEMENT OF WORK (SOW) ACCOMPANYING THIS CLIENT EULA (THE “SOFTWARE”). This Agreement may be accepted by electronic signature in the following manner: Client will be prompted to accept these terms by clicking a button. Clicking the button or using the Software indicates that Client has read, understood and accepted this Client EULA.
PLEASE READ THE TERMS AND CONDITIONS OF THIS CLIENT EULA CAREFULLY BEFORE USING THE SOFTWARE. BY SIGNING A SOW REFERENCING THIS CLIENT EULA, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY OR ORGANIZATION TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS CLIENT EULA. IF YOU ENTER INTO THIS CLIENT EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS CLIENT EULA, YOU HAVE NO RIGHT TO USE THE SOFTWARE. USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS CLIENT EULA.
1.USE OF SOFTWARE AND LICENSE; RESTRICTIONS.
Subject to the terms of this CLIENT EULA and payment of all applicable fees set forth in the applicable quote, proposal or SOW signed by both PPS and CLIENT (herein “Order”), PPS grants to CLIENT and its Affiliates a non-sublicensable, nontransferable, nonexclusive license to use the Software identified in the Order solely in accordance with, and during the term of, this CLIENT EULA. As used herein, Affiliate means, with respect to a Party, any corporation or other business entity Controlled by, Controlling or under common Control with that Party, whereby Control means the direct or indirect ownership of more than 50% (fifty per cent) of the equity interest in such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity. CLIENT may provide to the Certifying Company the applicable reports generated via the Software, and may also use the content of such reports or other content resulting from the use of the different modules within the Software to create separate deliverables for its Certifying Company. However, CLIENT is not allowed to use the Software for its internal business purposes outside the scope of the SOW. The Order shall be deemed accepted when CLIENT first uses the Software or the day of the latest signature date on the Order (whichever is earlier) ("Contract Commencement Date"), at which point a contract between CLIENT and PPS for the license of the Software in accordance with this CLIENT EULA shall come into existence ("Contract"). As specified in the Order, CLIENT’s license for use of the Software shall be as part of a PPS-hosted offering (software-as-a-service) accessible by CLIENT via the internet (“SaaS Offering”). With respect to the SaaS Offering, (i) CLIENT will not be provided with and shall have no right to any software code and, (ii) PPS will use reasonable commercial endeavors to make the SaaS Offering available twenty-four (24) hours a day, seven (7) days a week, but notwithstanding the foregoing, PPS reserves the right to suspend CLIENT’s access to the SaaS Offering for scheduled or emergency maintenance. CLIENT shall not and shall not allow any third party to (a) reproduce or modify the Software, or translate, or create derivative works based on any Software, (b) provide, rent, sell, sub-license, lease, merge, translate, loan, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying Proprietary Information (as that term is defined below) (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of PPS, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export (directly or indirectly) of the Software or a portion thereof (i) in breach of any applicable laws or regulations, including (but not limited to) United States export laws and regulations; (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, without first obtaining such license or approval. CLIENT shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media. CLIENT is responsible for (i) all activity occurring under CLIENT’s user accounts (including, without limitation, administrators, employees, contractors and/or any other third party users) and their compliance with the terms and conditions herein; and (ii) complying with any applicable laws which might impact the CLIENT's right to import, export or use the Software and documentation, and CLIENT warrants and represents that it shall comply with any regulations or registration procedures required by applicable law to make this license enforceable. PPS is not responsible to CLIENT for unauthorized access to CLIENT’s data or the unauthorized use of the Software to the extent that such access is not due to PPS’s breach of its confidentiality or security obligations hereunder. You acknowledge that Users’ ability to access the Software is dependent upon Users having (a) continuous access to the necessary telecommunications and Internet services and (b) properly configured and operational information technology infrastructure meeting such minimum system requirements as PPS may recommend or specify from time to time, including hardware, software, databases, systems, networks and services, whether operated directly by You or through the use of third party services (“CLIENT Systems”). As between You and PPS, You have and shall retain sole responsibility for: (a) acquiring and maintaining, and paying all fees and expenses for, all telecommunications and Internet services and CLIENT Systems necessary to access and use the Services; (b) all CLIENT inputs, including content and use; (c) all information, instructions, and materials provided by or on behalf of CLIENT or any User in connection with the Services; (d) the security and use of CLIENT’s and its Users’ access credentials; and (e) all access to and use of the Software directly or indirectly by or through the CLIENT Systems or its Users’ access credentials, with or without CLIENT’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
2.USER ACCOUNTS
You are solely and fully responsible (including in respect of the consequences thereof) for:
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Creating and managing User Accounts;
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Ensuring that no false or misleading personal information about a User is being used for the User Account;
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All use or abuse made by the User of the User Account;
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Any acts that occur in or are performed under the User Accounts;
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The safe handling, storage, confidentiality and proper usage of the User Accounts, including in respect of the User identifications, login credentials and/or passwords.
You shall use such generally accepted, reasonable and applicable knowledge, techniques, practices, technology and/or methodologies that have a proven reliability in the applicable field of industry to prevent unauthorized access to the Service by its Users, as well as to prevent unauthorized access to the User Accounts by any third party. You shall notify the Company promptly of any such unauthorized access or use and employ all such means to immediately stop any such unauthorized use or misuse.
Each User shall have a designated User Account. No User shall allow any other party, or share with any party, access to the Service through such User’s own User Account.
3.UPGRADES.
3.1.Upgrades - Additionally, PPS may, from time to time and in its sole discretion, issue new releases for the software including, but not limited to, upgrades, new features, patches, enhancements, or fixes (“Upgrades”) which will be included in the price of your license. With respect to SaaS Offering, Upgrades will be immediately and automatically available as of the release date.
4.FEES AND PAYMENT.
Fees and payments will be invoiced according to the Order, as applicable. All payment obligations are non-cancelable and all amounts paid are nonrefundable. All payments shall be made in U.S. Dollars in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law) within thirty (30) days of the applicable invoice date, unless otherwise specified in the Order ("Payment Due Date"). PPS may at any time, without limiting its other rights and remedies, set off any amount owing to it by the CLIENT against any amount payable by PPS to CLIENT. All sums payable under the Contract are exclusive of value added tax chargeable for the time being (VAT) or any other relevant local sales taxes, for which the CLIENT shall be responsible. If payment has not occurred within fifteen (15) days after the Payment Due Date, then without limiting any other right or remedy available to PPS, a Late Fee will be charged (“Late Fee”) and will amount to 1.5% of the invoice amount per calendar month (if not invoiced monthly, the invoice amount excluding the applicable one-time fee for On-Premise deployment, prorated to one calendar month). Partner shall pay the Late Fee together with the overdue amount. CLIENT agrees to provide PPS with complete and accurate billing and contact information. All pricing terms are Confidential Information, and CLIENT agrees not to disclose them to any third party.
5.PPS INDEMNITY.
PPS, at its sole expense, agrees to defend CLIENT against any third party claim that CLIENT’s use of the Software, as delivered by PPS to CLIENT and used in accordance with this CLIENT EULA, directly infringes a third party copyright or issued patent or directly misappropriates a trade secret (but only to the extent such misappropriation is not a result of CLIENT’s actions) under the laws the United States and Canada (an “Infringement Claim”), and indemnify CLIENT from the resulting costs and damages finally awarded against CLIENT to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (i) CLIENT promptly notifies PPS in writing of the Infringement Claim; (ii) PPS has sole control of the defense and all related settlement negotiations; and (iii) CLIENT provides PPS with the information, assistance and authority to enable PPS to perform PPS’ obligations under this Section. CLIENT may not settle or compromise any Infringement Claim without the prior written consent of PPS. In any action based on an Infringement Claim, PPS, at its option and its own expense, will either: (1) procure the right for CLIENT to continue using the Software in accordance with the provisions of this CLIENT EULA; (2) make such alterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing, substantially similar substitute; or (4) terminate the relevant Software Licenses, and upon CLIENT certified destruction or deletion of the Software, PPS shall refund to CLIENT the unused remainder of any license fees prepaid by CLIENT and received by PPS. In connection with any termination pursuant to this Section, CLIENT shall comply with all post-termination requirements set forth in this CLIENT EULA. PPS shall have no liability or obligations for an Infringement Claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than PPS or under the direct control of PPS; (b) the combination, operation or use of the Software with non-PPS products; (c) use of the Software outside the scope of this CLIENT EULA; (d) PPS’ use of any designs, plans, instructions, specifications, diagrams or the like, provided by CLIENT, if any; (e) CLIENT’s failure to use all available Upgrades to the Software made available to CLIENT by PPS, if the claim would not have occurred but for such failure; (f) use of open source software or freeware technology or any derivatives or other adaptations thereof not embedded by PPS into the Software; or (g) any Software that is provided on a no charge, beta, or evaluation basis. Nothing in this provision shall be construed as a limitation on CLIENT’s ability to retain legal counsel at its own expense to passively monitor the proceedings. This Section sets forth CLIENT’s sole and exclusive remedies and PPS’ entire liability with respect to claims for infringement or violation of third party intellectual property rights by the Software.
6.CLIENT INDEMNITY.
CLIENT shall indemnify, defend, and hold harmless PPS, its Affiliates, and their respective officers, directors, employees, and representatives (each, including PPS, a “PPS Indemnitee”) from and against any and all losses, damages, costs (including legal fees) and expenses incurred by the PPS Indemnitee arising out of or relating to (i) CLIENT’s use of the Software in an unauthorized manner or in violation of the license restrictions set forth in Section 1, and (ii) the actual or alleged infringement of any proprietary or other rights of a third party in any materials provided by or on behalf of CLIENT to PPS in connection with the Contract.
7.LIMITATION OF COMPLIANCE.
CLIENT acknowledges that use of PPS Software and/or materials does not guarantee compliance with any applicable laws and regulations in any jurisdiction.
8.FEEDBACK.
CLIENT may, at its discretion, provide feedback to PPS with respect to its use of the Software (“Feedback”). Feedback may include, without limitation, errors or difficulties discovered in the Software and the characteristic conditions and symptoms of the errors and difficulties. Unless specifically agreed in writing, PPS shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit.
9.SECURITY.
PPS has implemented and will maintain and comply with a comprehensive written privacy and data security program (“Security Program”) that complies with applicable law. In the event that PPS suspects a Data Breach, PPS will (a) promptly notify You and (b) cooperate with You and law enforcement agencies, where applicable, to investigate and resolve the Data Breach,. “Data Breach” means a security incident in which sensitive, protected or Confidential Information of the CLIENT, while such information is stored on PPS systems, is copied, transmitted, viewed, stolen or used by an individual unauthorized to do so.
10.LIMITED WARRANTY AND DISCLAIMERS.
PPS DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS, REPRESENTATIONS OR OTHER TERMS RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR OTHER TERMS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND ALL SERVICES HEREUNDER ARE PROVIDED “AS IS,” WITH ALL FAULTS. PPS AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
11.LIMITATION OF LIABILITY AND DAMAGES.
11.1. , NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO OR ARISING OUT OF THE CONTRACT AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEES PAID BY CLIENT AND RECEIVED BY PPS HEREUNDER IN THE LAST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOSS OF REVENUES; (III) LOSS OF PROFITS; (IV) LOSS OR INACCURACY OF DATA; OR (V) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY.
11.3. THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 11 SHALL NOT APPLY TO BREACHES OF LICENSE RESTRICTIONS SET FORTH IN SECTION 1, , AND MISUSE OF PARTY’S INTELLECTUAL PROPERTY HEREUNDER.
11.4. NOTHING IN THE CONTRACT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
12.ASSIGNABILITY.
Neither the rights nor the obligations arising under the Contract are assignable or transferable by either Party without the other Party’s prior written consent (which shall not be unreasonably withheld), and any such attempted assignment or transfer shall be void and without effect; provided that PPS shall have the right to assign its rights and obligations hereunder in connection with a transaction comprising a sale of all or substantially all of its business assets.
13.GOVERNMENT USE.
If CLIENT is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this CLIENT EULA.
14.CONFIDENTIALITY AND PROPRIETARY INFORMATION.
A Party (the “Receiving Party”) may receive Confidential Information of the other Party or its Affiliates (the “Disclosing Party”) and the Receiving Party shall, during the term of this license and thereafter, keep all such Confidential Information confidential and protect such Confidential Information by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion.
Each Receiving Party shall not use the Confidential Information for its own purposes (other than implementation of this license) nor disclose Confidential Information to any person other than such party’s employees who have a need to know that Confidential Information. The parties shall not use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under the Contract. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is (i) required by law or (ii) necessary to exercise its rights or perform its obligations under and in accordance with the Contract. PPS may also disclose Confidential Information to its subcontractors that have a need to know that Confidential Information in order to perform the services, and to its group companies. In the event of a disclosure of Confidential Information by a subcontractor or parent company, PPS remains responsible for the confidentiality of the information. CLIENT may also disclose Confidential Information to its Certifying Companies that have a need to know that Confidential Information in order to perform the services. In the event of a disclosure of Confidential Information by a Certifying Company, CLIENT remains liable for the confidentiality of the information. As used herein, “Confidential Information” means information of a confidential or proprietary nature (including trade secrets and information of commercial value) which relates to the Disclosing Party that is disclosed or provided to Receiving Party by or on behalf of Disclosing Party pursuant to the Contract; provided, however, that Confidential Information shall not include information that (w) is or becomes a part of the public domain through no act or omission of the Receiving Party; (x) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (y) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (z) is independently developed by the Receiving Party. This section shall apply during the term of the Contract, and for three (3) years after the termination or expiration hereof. Without prejudice to the generality of the foregoing, the Software and any underlying object and source code and related technical or business information provided by PPS (“Proprietary Information”), shall constitute the Confidential Information of PPS.
15.EFFECTIVE DATE, TERM, CONTROLLING LAW, ATTORNEYS' FEES AND SEVERABILITY.
Except as otherwise stated in the Order, this CLIENT EULA shall become effective by creating/using User Accounts and/or by placing, storing and/or submitting Your data/content (“Customer Data” or "Your Content") into or on the Service provided by PPS, you (“You” or “Your”), including the users authorized by you (“Users”) acknowledge and agree that this Client EULA shall apply in full. The termination of this CLIENT EULA should coincide with the underlying SOW. If said SOW is renewed the term of this CLIENT EULA shall renew as well. This CLIENT EULA will be construed in accordance with and governed exclusively by the laws of the State of Ohio, U.S.A., without respect to conflict of laws principles. All disputes or claims (including non-contractual disputes or claims) under this Contract will be resolved in the applicable court in Ohio, U.S.A. The Parties consent to the exclusive jurisdiction of such court, agree to accept service by process of mail, and waive any jurisdictional or venue defenses otherwise available. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded and will not apply to this CLIENT EULA. Each provision of this CLIENT EULA shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable or invalid by a Court, the other provisions of this CLIENT EULA shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that this CLIENT EULA shall otherwise remain in effect.
16.ENTIRE CLIENT EULA; MODIFICATIONS; WAIVERS; COUNTERPARTS.
The Master Service Agreement,, together with it Terms and Conditions, or any agreement, policy or guideline referenced in and including this CLIENT EULA, (“Contract”) constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and the Software, superseding all prior or contemporaneous proposals, communications and understandings, oral or written relating to that subject matter.. To the extent there is any conflict or inconsistency between this CLIENT EULA and such mutually executed SOW, the SOW shall prevail to the extent of any such conflict or inconsistency. Except as expressly provided herein, any modifications of this CLIENT EULA must be in writing to which Client has assented via electronic means. Waiver by a Party of a breach of any provision of the Contract by the other Party will not operate as a waiver of any other or subsequent breach by such breaching Party. No one other than a party to the Contract, their successors and permitted assignees shall have any right to enforce any of the terms of the Contract.
17.TERMINATION; SUSPENSION.
Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Contract that has not been cured (if curable) within thirty (30) business days of notice thereof or either Party’s (i) announces a cessation of its entire business or becomes insolvent; (ii) elects to dissolve and wind-up its business; (iii) makes a general assignment for
the benefit of creditors; or (iv) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property. PPS may also terminate the Contract with immediate effect if CLIENT fails to pay any amount due to PPS on the due date for payment and remains in default not less than fifteen (15) days after being notified in writing to make such payment. The Contract will also terminate automatically upon the expiration of any applicable license period specified in the Order or such other license period as have been expressly agreed to by PPS. Upon termination of the Contract, the license granted hereunder will terminate and (i) CLIENT shall promptly destroy any and all documents, notes and other materials regarding the Software (including any physical copies made thereof), and an officer of CLIENT shall certify the same to PPS upon PPS’ request; provided however that, upon CLIENT’s request and payment of a reasonable fee covering the cost, PPS shall retrieve and deliver to CLIENT a copy of the data CLIENT will have input in the Software at the time of termination in an industry standard format, and (ii) PPS shall promptly destroy any and all CLIENT Confidential Information (including any physical copies made thereof), and an officer of PPS shall certify the same to CLIENT on CLIENT’s request; otherwise, the terms of the Contract will remain in effect. Without limiting the foregoing, PPS may cancel, suspend or limit CLIENT’s access to or use of the Software without liability if (i) CLIENT’s account is more than sixty (60) days past due, (ii) CLIENT has not accessed the Software for ninety (90) consecutive days or (iii) CLIENT’s use of the Software results in (or is reasonably likely to result in) damage to or material degradation of the Software which interferes with PPS’s ability to provide access to the Software to other CLIENTs; provided that PPS will end such suspension when CLIENT cures the foregoing. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
18.DATA PROCESSING.
By accepting this CLIENT EULA, CLIENT acknowledges and agrees that CLIENT Data may be transferred to, stored or processed in the United States, where PPS servers are located and PPS’s central database is operated.
If you are using the Software or documentation outside the U.S.A., then the following shall apply: (a) You confirm that this CLIENT EULA and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software and documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. CLIENT acknowledges that PPS and any of its Affiliates may disclose the privacy provisions in the Contract to the US Department of Commerce, the Federal Trade Commission, the European data protection authority, or any other US or EU judicial or regulatory body upon their lawful request.
19.INTELLECTUAL PROPERTY.
CLIENT acknowledges that: (a) PPS or its third party licensors (as applicable) owns all patent, copyright, domain name rights, database rights, trademark, trade secret and any other intellectual property rights embodied (i) in the Software, Upgrades and/or any services provided by PPS or its Affiliates hereunder; and (ii) any information, data, publications, papers, analyses, metadata or other materials which may be derived from any of the foregoing that is derived or created by PPS or its Affiliates by reference to the services provided hereunder, in each case whether registered, registrable or not and both present and future, including all applications and right to apply for any of the foregoing rights anywhere in the world, and the right to sue for past infringements of any of the foregoing rights; and (b) that rights in the Software are licensed (not sold) to CLIENT, and that CLIENT shall have no intellectual property rights in, or to, the Software other than the right to use the Software in accordance with the terms of the Contract.
CLIENT Content shall mean any and all data, applications, files, information or materials created, accessed, transmitted, uploaded, published or displayed through the Software by CLIENT, users, or any third party users. CLIENT Content does not include relationship data or usage data. PPS shall have no right to exploit or use any part of CLIENT Content for itself or for other of PPS’ customers. For the avoidance of doubt, (a) PPS shall not add any CLIENT Content to its Software template gallery, (b) CLIENT Content shall not include any format or presentation of the data, and (c) any output from the Software including, but not limited to, tables, format, and the like shall be the property of PPS. Nothing contained herein shall prevent PPS from independently developing its own content.
CLIENT expressly acknowledges and agrees that PPS shall be the sole owner of any newly-developed intellectual property including but not limited to (i) newly-developed, revised, or modified source code and (ii) inventions where such are related in any way to the Software, the Hosted Services or PPS’ general business, regardless of the creator, whether such are developed, revised, or modified in response to CLIENT’s requests, suggestions, or ideas, even if performed as Software related services paid for by CLIENT or CLIENT’s Certifying Company. During the term of this EULA and thereafter, CLIENT shall not assert the invalidity of the PPS intellectual property, or contest PPS’ right, title or interest therein and thereto, and CLIENT shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest (including, without limitation, CLIENT’s Certifying Company).
CLIENT-Licensed Materials. PPS hereby grants to CLIENT, at no additional fee, a worldwide, perpetual, irrevocable, non-exclusive license and right to use Reports. Reports shall mean any document containing CLIENT Content in any format that CLIENT is able to generate via the Software.
20.THIRD PARTY SOFTWARE.
You acknowledge that the Software may contain copyrighted software of PPS's Affiliates and suppliers which are obtained under a license from such Affiliates and suppliers (collectively, "Third Party Software"). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this CLIENT EULA, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials provided to the CLIENT, including without limitation an end user license agreement. For the purpose of providing the Software, PPS uses the following Third Party Software: (Alta IRM).
21.BASIS OF BARGAIN.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS CLIENT EULA ARE MATERIAL, BARGAINED FOR BASES OF THIS CLIENT EULA AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS CLIENT EULA AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS CLIENT EULA.
22.AUDIT RIGHTS.
PPS reserves the right to authorize a representative of PPS to audit CLIENT’s records relating to the Software and use thereof, which shall only include the data input or generated via the Software. Upon prior written notice, CLIENT shall provide reasonable access to such records during normal business hours or perform such actions reasonably requested by PPS to exercise their rights in this section.
Updated: November 2023
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