Partner Platform Software as a Service (SaaS) Terms and Conditions | Insurance Agency Management System by Strategic Insurance Software

Strategic Insurance Software, LLC, an Ohio limited liability company with offices located at 4181 Arlingate Plaza, Columbus, OH 43228 (“Provider“) is a provider of the “Partner Platform” subscription-based hosted service (“Hosted Services”), and associated training and implementation services (“Implementation and Training”). The scope of Services, including the subscription Effective Date, number of permitted users, and applicable pricing terms, is set forth on the Order Form to which these Partner Platform Software as a Service (SaaS) Terms and Conditions (“Terms and Conditions”) apply. The Order Form, together with these Terms and Conditions, constitute the agreement (“Agreement”) between Provider and the customer identified in the Order Form (“Customer”).

Definitions.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

“Action” means any claim, suit, action or proceeding.

“Agreement” has the meaning set forth in the preamble.

“Authorized User” means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement as identified in Schedule B.

“Availability Requirement” has the meaning set forth in Section 6.1.

“Available” has the meaning set forth in Section 6.1.

“Confidential Information” has the meaning set forth in Section 10.1.

“Customer” has the meaning set forth in the preamble.

“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.

“Customer Failure” has the meaning set forth in Section 4.2.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) networks, and connection to the Internet, whether operated directly by Customer or through the use of third-party services.

“Disclosing Party” has the meaning set forth in Section 10.1.

“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Effective Date” means the date on which the Order Form is submitted to Provider.

“Exceptions” has the meaning set forth in Section 6.1.

“Fees” has the meaning set forth in Section 8.1.

“Force Majeure Event” has the meaning set forth in Section 15.1.

“Go-Live Date” means the date the Customer begins using the Hosted Services, provided any use of the Hosted Services for training purposes does not constitute use under this definition.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement.

“Hosted Services” has the meaning set forth in the preamble above.

“Implementation and Training” has the meaning set forth in the preamble above.

“Initial Term” has the meaning set forth in Section 11.1.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Order Form” refers to that particular electronic or paper order form signed by Customer in connection with Customer’s purchase of Services.

“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Privacy Policy” has the meaning set forth in Section 7.1.

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.

“Provider Indemnitee” has the meaning set forth in Section 13.1.

“Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

“Receiving Party” has the meaning set forth in Section 10.1.

“Reimbursable Expenses” has the meaning set forth in Section 8.3.

“Renewal Term” has the meaning set forth in Section 11.2.

“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

“Scheduled Downtime” has the meaning set forth in Section 6.4.

“Service Credit” has the meaning set forth in Section 6.2.

“Service Hours” means the time period when Provider Personnel are available for product support and technical questions. The days and times are displayed on Provider’s support website and are kept current.

“Service Level Failure” has the meaning set forth in Section 6.1.

“Service Period” has the meaning set forth in Section 6.1.

“Service Software” means the Provider software application or applications, including but not limited to Partner Platform, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.

“Services” means the Hosted Services and Implementation and Training.

“Subcontractor” has the meaning set forth in Section 2.4.

“Support Services” has the meaning set forth in Section 6.5.

“Term” has the meaning set forth in Section 11.2.

“Territory” means the United States.

“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
Services.
2.1 Access to Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide Customer and its Authorized Users with access to the Hosted Services 24 hours per day, seven days per week every day of the year, except for: (a) Scheduled Downtime in accordance with Section 6.4; (b) Service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement; and (d) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Hosted Services as permitted by this Agreement.

2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are hosted or delivered; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

2.3 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s Services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ efficiency or performance; or (b) to comply with applicable Law.
2.4 Subcontractors. Provider may from time to time in its discretion engage third parties to perform aspects of the Services (each, a “Subcontractor”).

2.5 Suspension or Termination of Services. Provider may suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Provider; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.5 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement.
Authorization and Customer Restrictions.
3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.7, non-transferable.

3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.

3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or Provider Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof; (h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law; (i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or (j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the published minimum hardware and bandwidth requirements (posted on PartnerNet (www.partnerxe.net)) all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement or failure to use a compatible web browser to access the Hosted Services (each, a “Customer Failure”).

4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
ACORD Terms and Conditions.
5.1 ACORD License.

THIS PRODUCT INCORPORATES LICENSED COPYRIGHTED AND OTHER PROPRIETARY MATERIAL OF ACORD CORPORATION, INCLUDING ACORD STANDARDIZED FORMS. ACORD FORMS ARE LICENSED BY ACORD, NOT SOLD.

YOU ACKNOWLEDGE AND AGREE THAT YOU MUST BE PARTY TO A WRITTEN LICENSE AGREEMENT DIRECTLY WITH ACORD CORPORATION IN ORDER TO USE THE ACORD FORMS CONTAINED IN THIS PRODUCT, AND REPRESENT AND WARRANT THAT YOU WILL OBTAIN SUCH A LICENSE PRIOR TO USING ACORD FORMS. NEITHER THE PROVIDER OF THIS PRODUCT, NOR ANY THIRD PARTY, CAN GRANT LICENSES TO USE ACORD FORMS. YOU CAN OBTAIN A LICENSE AGREEMENT PERMITTING YOU AND YOUR USERS TO USE ACORD FORMS, WHICH MAY REQUIRE YOU TO PAY FEES TO ACORD, BY CONTACTING ACORD AT +1-845-620-1700 OR THROUGH THE ADDITIONAL CONTACT INFORMATION AVAILABLE AT WWW.ACORD.ORG.

ACORD FORMS ARE MODIFIED PERIODICALLY TO REFLECT CHANGING LEGAL, INDUSTRY AND OTHER REQUIREMENTS. THE ACORD FORMS CONTAINED IN THIS PRODUCT MAY NOT BE THE MOST CURRENT MATERIALS THAT ACORD PUBLISHES.

USING OUTDATED ACORD FORMS MAY BE PROHIBITED IN CERTAIN CASES BY GOVERNMENT REGULATORS AND INCREASES THE RISK OF LEGAL ACTION BY INSUREDS AND OTHER THIRD PARTIES.

IT IS SOLELY YOUR RESPONSIBILITY TO CONFIRM THAT YOU ARE USING ONLY THE MOST CURRENT FORMS THAT ACORD PUBLISHES. YOU MAY DETERMINE THE CURRENCY OR NON-CURRENCY OF ACORD FORMS BY CONSULTING THE FORMS INFORMATION SECTION OF ACORD’S WEBSITE (WWW.ACORD.ORG).

ACORD is an intended third-party beneficiary of the above provisions. The above provisions are made expressly for the benefit of, and are enforceable by, ACORD. The name ACORD and the ACORD logo are registered marks of ACORD Corporation.

5.2 Provider Obligations. Notwithstanding anything to the contrary herein, immediately upon receipt of written notice from ACORD Corporation (“ACORD”) that Customer is not party to a written license agreement with ACORD or otherwise does not have authority from ACORD to access ACORD’s proprietary materials, Provider may terminate Customer’s access to the Hosted Services until such time as ACORD provides notice to Provider that Customer is permitted to access ACORD’s proprietary materials. Provider shall not be liable for any damages suffered by Customer as a result of any actions or inaction arising out of or in connection with ACORD.

5.3 Customer Consent. Customer hereby agrees that Provider may provide the following information to ACORD: (a) Customer name, (b) name of Hosted Services licensed to Customer and date(s) of initial license; (c) name of Customer’s primary contact, along with his or her telephone number, email address and physical address; (d) number of Authorized Users; and (e) ACORD forms accessible to Customer, identified by Form number and version date, and (f) ACORD forms accessed, with dates and times of such access correlated to Authorized Users.

5.4 Customer Termination. If at any time Customer is not party to a written license agreement with ACORD or otherwise does not have authority from ACORD to access ACORD’s proprietary materials, Customer may immediately terminate this Agreement without penalty.
Notwithstanding the foregoing, upon any such termination, Customer shall not be entitled to, and Provider shall not be required to pay, any reimbursement of amounts already paid pursuant to this Agreement.
Service Levels and Credits.
6.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-eight percent (98%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 6.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) failure of access circuits to Provider’s network, unless such failure is caused solely by Provider; (g) Scheduled Downtime; (h) domain name server propagation; or (i) disabling, suspension or termination of the Services pursuant to Section 2.5.

6.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in accordance with the following schedule, with the credit being calculated on the basis of the quarterly service charge for the hosting service (each a “Service Credit”):

Availability of Data Credit Percentage Availability of Data Credit Percentage

98.0 – 100% 0% 92.0 – 94.9% 20%

97.0 – 97.9% 10% 89.0 – 91.9% 25%

95.0 – 96.9% 15% < 89% 100%

6.3 Provider’s issuance of any such Service Credit is subject to the following: (a) Provider has no obligation to issue any Service Credit unless (i) Customer reports, by sending an email message to [email protected], the Service Failure to Provider immediately on becoming aware of it; (ii) such email message includes the Customer’s name and the name of the Customer agency in the “Subject” line, as well as the dates and times of the unavailability of Customer’s data (ii) requests such Service Credit in writing within five business days of the Service Level Failure; and (b) in no event will a Service Level Credit for any Service Period exceed one hundred percent (100%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred. Any Service Credit payable to Customer under this Agreement will be applied within three billing cycles following the Service Period in which the Service Level Failure occurred. Service Credits are exclusive of any applicable taxes charged to Customer or collected by Provider. This Section 6.2 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.

6.4 Scheduled Downtime. Provider will use reasonable efforts to give Customer prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime”). Scheduled Downtime will be posted on PartnerNet (www.partnerxe.net).

6.5 Service Support. The Services include Provider’s standard customer support services or the services of a qualified service provider designated by Provider, including the following (together the “Support Services”): (a) email and telephone support for the Customer, Customer’s Representatives and Authorized Users on all non-holiday weekdays during Service Hours; and (b) modifications and upgrades to any Service Software which Provider makes available to its Customers and, provided in each case that all such modifications and upgrades are installed by Customer (as directed by Provider), and Customer understands and agrees that Provider will provide or cause to be provided Support Services only as to the most current release by Provider. Customer agrees, and shall require its Representatives, to provide electronic access (internet) to Service Software as directed by Provider for Provider Personnel as needed to provide Support Services.

6.6 Data Backup. Provider will, and the Provider Systems are programmed to, perform routine data backups. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider’s then most current backup of such Customer Data. Customer may request a copy of Customer Data in standard backup format and Customer agrees to pay Provider the Backup Fee as indicated on the applicable Order Form.
Security.
7.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with Provider’s data privacy policy as amended from time to time, as available on Provider’s website at https://www.sisware.com/privacy-policy/ or a successor website address (“Privacy Policy”).

7.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

7.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
Fees; Payment Terms.
8.1 Fees. Customer shall pay Provider the fees set forth in the applicable Customer Order Form (“Fees”) in accordance with this Section 8. If Customer exceeds its agreed-upon usage and storage levels for any relevant period, Customer shall also pay to Provider applicable excess usage and storage Fees.

8.2 Fee Increases. Provider may increase Fees for any Renewal Term by providing notice to Customer at least ninety (90) calendar days prior to the commencement of such Renewal Term, and the applicable Order Form will be deemed amended accordingly. Provider reserves the right to charge additional fees for use of shared resources, including, but not limited to, disk space and network bandwidth, as well as Support Services in excess of normal and customary levels that increase Provider cost or impact service delivery to other provider customers.

8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Implementation and Training Services (“Reimbursable Expenses”), as agreed to on any applicable Order Form.

8.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

8.5 Payment. Services are invoiced in advance. Unless otherwise specified on the Order Form, Customer shall pay all Fees and Reimbursable Expenses within thirty (30) days after the date of the invoice therefor, or when billed automatically to Customer provided credit card or drafted automatically via ACH from Customer’s checking account as agreed by the parties. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in Customer’s applicable Order Form or such other address or account as Provider may specify in writing from time to time.

8.6 Late Payment. If Customer fails to make any payment when due, then, in addition to all other remedies that may be available: (a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for ten (10) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

8.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits issued pursuant to Section 6.2 or any deduction or withholding of tax as may be required by applicable Law).
Intellectual Property Rights.
9.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3. All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.1 and Section 9.3.

9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
Confidentiality.
10.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms and existence of this Agreement are the Confidential Information of Provider.

10.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.

10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
Term and Termination.
11.1 Initial Term. The initial term of this Agreement commences on the first day of the calendar month following the Go-Live Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for the subscription period set forth on the Order Form (or if no such period is specified, then for period of one year) (the “Initial Term”). In the event this Agreement is terminated prior to the natural expiration of the Initial Term, all Fees for the Initial Term shall become immediately due and payable.

11.2 Renewal. This Agreement will continue in effect following the expiration of the Initial Term, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party at least ninety days’ written notice of termination (together with the Initial Term, the “Term”).

11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Provider may immediately terminate this Agreement, effective on notice to Customer, if Customer (i) fails to pay any amount when due hereunder or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions) or Section 10 (Confidentiality); (b) either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents and authorizations granted by Provider to Customer hereunder will immediately terminate; (b) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider’s Confidential Information, (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls, and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 11.4; (c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control (i) the Receiving Party may retain the Disclosing Party’s Confidential Information, (ii) Provider may retain Customer Data, (iii) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course, and (iv) all information and materials described in this Section 11.4 will remain subject to all confidentiality, security and other applicable requirements of this Agreement; (d) Provider may immediately disable all Customer and Authorized User access to the Hosted Services and Provider Materials; (e) if Provider terminates this Agreement pursuant to Section 11.3 or Section 11.3, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider’s invoice therefor; and (f) Provider shall have no obligation to keep or to back up or transmit Customer Data or Resultant Data unless Customer pays all fees associated with such back up or transmission.

11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
Representations and Warranties.
12.1 Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

12.2 Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

12.3 DISCLAIMER OF WARRANTIES. ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Indemnification.
13.1 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arises out of or relates to any: (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

13.2 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement; (b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that if such termination occurs prior to one year after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 11.4, Customer will be entitled to a refund of the Fees timely paid by Customer.
Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 6.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO PROVIDER IN ACCORDANCE WITH THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Force Majeure.
15.1 No Breach or Default. In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, virus attacks, hackers, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
Miscellaneous.
16.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer’s consent, include Customer’s name and/or other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.

16.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices which are required to be given or submitted pursuant to this Agreement shall be in writing and shall be either delivered electronically via email, personally delivered or sent by first class mail to the address set forth herein or to such other address as the parties may from time to time designate in writing for such purpose. Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

16.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

16.6 Entire Agreement. This Agreement, together with the Order Form and Privacy Policy, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between this Agreement (including any exhibits, schedules, attachments and appendices (other than an exception expressly set forth as such therein)), the Order Form and Privacy Policy, this Agreement, shall control.

16.7 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

16.8 No Third-party Beneficiaries. Except as set forth in Section 5.1, this Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

16.9 Amendment and Modification; Waiver. Provider may update these Terms and Conditions from time to time. No other amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16.10 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16.11 Arbitration; Governing Law; Submission to Jurisdiction. Except for controversies arising under Section 8 any controversy or claim arising out of or related to this Agreement or any other agreement between Customer and Provider to which this Agreement is attached, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Either party may invoke this arbitration provision by giving written notice to the other party of its interest to arbitrate at least thirty (30) days before any arbitration proceeding may be demanded. If after said thirty (30) day period a mutually agreed upon solution is not achieved, then either party may demand that the dispute(s) in question be arbitrated. In no event shall any demand for arbitration be made after the date on which the legal or equitable claim would be barred by the applicable statute of limitations nor shall any arbitrator have the jurisdiction, power or authority to award any damages excluded under this Agreement or otherwise not available in the court with jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. For the purposes of resolving any dispute under the immediately preceding paragraph or litigating any matter arising under this Agreement the parties agree to arbitrate such disputes in, or submit to personal jurisdiction and venue of the courts of, the City of Columbus, County of Franklin, Ohio.

16.12 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.