TERMS OF SERVICE
Last Modified: July 11, 2024
These Terms of Service and any terms expressly incorporated herein (together, the “Agreement”) apply to any access to, or use of, the Compliance Command Platform, as defined herein, as made available by Compliance Command, Inc., a Delaware corporation, together with its subsidiaries and affiliates (the “Company”, “we”, “us”, or “our”). For the purposes of this Agreement, the terms “Customer”, “you”, “your”, “yourself” and “User” means you as the user of the Platform. Additionally, you and Company may be referred to herein together as the “Parties”, and each may be referred to individually as a “Party”.
For the avoidance of doubt, if you are accessing or using the Platform on behalf of a business or entity, then the term “Customer” includes you and that business or entity. Additionally, you (a) represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to this Agreement, and that you agree to the Agreement on the entity’s behalf, and (b) you understand and acknowledge that your business or entity is legally and financially responsible for your access or use of the Platform as well as for the access or use of your account by others affiliated with your entity, including any employees, agents or contractors.
By clicking the “Accept” button or checking the appropriate box to accept this Agreement, or by downloading, installing, accessing, or using the Platform, you acknowledge that you agree to be bound by, and be subject to, this Agreement, the date of which shall be considered the “Effective Date” of this Agreement, and together with the Company’s Privacy Policy, as it may be updated from time to time (the “Privacy Policy”), which is expressly incorporated herein by reference, and which is an integral part hereof. This Agreement is applicable to you regardless of the type of Subscription selected, as indicated on the Order Form (as defined below).
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THIS AGREEMENT, AND YOU MUST NOT ACCESS, OR USE THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE PLATFORM IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT IN THEIR ENTIRETY.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE IN WHICH YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.
1. Definitions. In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“Compliance Command Platform” or “Platform” means the Company’s compliance software, which enables customers to work towards, manage, track, and maintain compliance with certain regulatory standards, including standards published by the ISO (International Organization for Standardization) via the software’s various modules, including, but not limited to, training management, asset management, document management, nonconformity management, and audit management.
“Customer Data” means any content, data, information, material, or anything of a similar nature, that is uploaded to, submitted to, or stored by the Platform by the Customer.
“Documentation” means documentation that is provided to the Customer or Users that describes the then-current specifications, functions, and features of the Platform, in any form.
“Fees” means the fees as set forth in the applicable Order Form.
“Intellectual Property” means the property of a Party that is protected in any manner by Intellectual Property Rights.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
“Law” means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to such Person.
“Order Form” means an applicable order form or personalized pricing page, including in an online or electronic format, setting forth the Fees, the Subscription, the number of Users who may access the Platform via such Subscription, the Subscription Term, etc., which references this Agreement.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Person” means any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.
“Subscription” means the access license to the Platform granted on a recurring basis under this Agreement and pursuant to an applicable Order Form(s). For avoidance of doubt, the Customer may have more than one Subscription at any one-time pursuant separate, corresponding Order Forms.
“Third Party” means any Person who is not the Company, the Customer, or a User.
“Update” means provide periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections in connection with the Platform that the Company makes generally available free of charge to its customers with subscriptions to the Platform.
“Users” means individuals, including the Customer’s employees, consultants, contractors, and agents, who are provided access to the Platform by the Customer and an account to access the same, pursuant to the Customer’s Subscription to the Platform and such applicable Order Form.
2. Platform License.
2.1 License Grant. Subject to the terms and conditions of this Agreement, including the Order Form, and solely during the Subscription Term set forth in the applicable Order Form, the Company grants to the Customer a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as set out in Section 17 below), limited license to access and use the Platform solely for Customer’s internal compliance and business purposes.
2.2 User Access Grant. The license granted in Section 2.1 shall extend to such Customer’s Users, subject to the applicable Order Form which shall set forth the maximum number of Users who may access and use the Platform under such Subscription, provided that each User registers for his or her own, individual Account and accepts these Terms of Service, as in effect from time to time.
2.3 No Sublicensing. For avoidance of doubt, the license granted in Section 2.1 does not include the right to sublicense; therefore, the Customer shall not provide a sublicense to any third party.
3. Customer Account.
3.1 Account Activation. As part of the Platform license, the Company will provide the Customer its own, unique account (a “Master Account”). The Customer is fully responsible for all activities performed on or through its Master Account. The Customer also acknowledges and agrees that each User must create his or her own, unique account (a “User Account”, and together with the Master Account, an “Account”) to utilize the Platform. The Customer further agrees that the Customer and each User will: (a) provide true, accurate, current and complete information as prompted by the registration form, (b) maintain and promptly update the data with which he or she registered to ensure the information is always true, accurate, current, and complete, (c) immediately inform the Company of any unauthorized use of its Account or any other breach of security, and (d) exit from its Account at the end of each work session. The Company undertakes no obligation to verify the data provided by the Customer or any User. However, if the Company finds or suspects that the provided information is untrue, inaccurate, not current, or incomplete, the Company will notify the Customer in writing and if the Customer or the User fails to provide or correct information, the Company may suspend or terminate such User’s or the Customer’s Account and refuse any and all current or future use of the Platform. For clarification, the Customer acknowledges and agrees that it shall be fully responsible for all activities performed on or through its Master Account and each User Account.
3.2 Password Confidentiality. Each User that uses the Platform must choose a password when registering to use the Platform. The Customer will cause such Users to maintain the confidentiality of the passwords. The Customer will also be assigned a password or passwords for access to and use of the Platform. The Customer is fully responsible for all activities that occur using the Customer and each User’s passwords. The Customer acknowledges and agrees that the Company shall not be liable for any loss that the Customer or any User may incur as a result of someone else using a password that has been assigned to or obtained by the Customer or its Users, either with or without the knowledge of the Customer or the applicable User; nor shall the Company be liable or responsible for any unauthorized access or misuse of the Platform by the Customer or any Users.
4. Third Party Materials. The Platform may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by Persons other than the Company and that are provided to the Customer on license terms that are in addition to and/or different from those contained in this Agreement (the “Third Party Licenses”). The Company utilizes Salesforce, Inc. (f/k/a salesforce.com, inc.), a Delaware corporation (“Salesforce”) as a third party licensor, whereby the Customer hereby agrees to Salesforce Terms of Use, which are further incorporated herein by reference. For the avoidance of doubt, the Company is considered a “Reseller” and the Customer is considered a “Customer” under the Sales Force Terms of Use. A list of such other Third Party Licenses, if any, may be provided upon the Customer’s reasonable request to the Company. The Customer agrees to be bound by and shall comply with all Third Party Licenses. Any breach by the Customer or any of its Users of any Third Party License shall be considered a breach of this Agreement as well.
5. Platform Access.
5.1 Access. During the Term, and as set forth in the Order Form, the Company will provide the Customer and its Users with remote access to the Platform.
5.2 Maintenance. The Customer acknowledges that certain maintenance activities involving the Platform may be necessary or appropriate, from time to time, which include development and deployment of Updates. In most instances, the Company’s infrastructure is designed to support Updates by the Company’s engineering and support teams without the need to interrupt the uptime of the Platform. Where such maintenance activities are not reasonably anticipated to materially impact the Customer’s and its User’s use of the Platform, the Company will have no obligation to provide notice to the Customer regarding such maintenance activities, although the Company generally does so, in the ordinary course, at least twenty-four (24) hours in advance of the same. If the Company reasonably determines that maintenance activities will require an unavailability or outage of the Platform in excess of fifteen (15) consecutive minutes, then the Company will attempt to give the Customer reasonable advance written notice of the same. The Company will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours. The Customer acknowledges and agrees that the Company may develop and provide Updates in its sole discretion. The Company has no obligation to develop any Updates at all or for particular issues, and the Company expressly disclaims any liability for not doing so.
5.3 Beta Features. The Company may, at its sole discretion, make certain Platform features available to the Customer on a test basis which will be clearly designated as beta, pilot, limited release, non-production, or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, the Customer acknowledges and agrees that any Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. The Company does not guarantee that future versions of any Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. The Company may terminate the Customer’s right to use any Beta Release at any time for any reason. If the Company publicly releases a Beta Release, the Customer may execute, if required, a separate Order Form to procure the relevant features (being the publicly available version of the Beta Release) at then-current applicable fees.
5.4 Suspension of Services. Any use of the Platform in violation of the Agreement by the Customer, or its Users, that, in the Company’s reasonable judgment, threatens the security, integrity, or availability of the Platform or that of its other customers, may result in the Company immediately suspending the Customer’s and its User’s use of the Platform; however, the Company will use commercially reasonable efforts under the circumstances to provide the Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
6. Customer Data
6.1 Company’s Acknowledgments. The Company acknowledges and agrees that the Customer exclusively owns all right, title, and interest in and to all Customer Data, in any form or medium, that is uploaded, submitted, collected, monitored, managed, downloaded, or otherwise received, directly or indirectly from the Customer or its Users by or through the Platform. The Company will not: (a) disclose Customer Data except as compelled by Law (subject to Section 12.3) or as expressly permitted in writing by the Customer, or (b) access Customer Data except to provide the Platform and the Platform’s various functionalities to the Customer, to prevent or address Platform technical problems, to take measures to comply, or to assist the Customer in complying, with applicable Law, or at the Customer’s request in connection with the Customer’s support matters. The Company will, at a minimum, comply with the Company’s Privacy Policy, as it may be updated from time to time.
6.2 Customer Data License. During the Term, the Customer grants to the Company a non-exclusive, non-transferable, non-assignable (except as set forth in Section 17), worldwide, royalty-free, fully-paid license to access and use Customer Data, solely to provide and monitor the Platform and the Platform’s various functionalities to the Customer.
6.3 Customer’s Data Obligations. The Customer is solely responsible for Customer Data and, to the extent within its control, the Customer will ensure that Customer Data complies with all applicable Laws.
6.4 Customer Usage Data. The Customer acknowledges and agrees that the Company may, directly or indirectly, collect and store information and data in connection with the Customer’s and its Users’ use of the Platform and about equipment on which the Platform is installed or through which it otherwise is accessed and used (“Customer Usage Data”). The Company may collect such information and data through means including, but not limited to the Customer’s access and use of the Platform.
6.5 Third Party Use. The Company may access, use, and provide Third Parties with access and use to the Customer Usage Data for the following enumerated purposes: (i) making the Platform functional and usable for the Customer and its Users; (ii) improving the performance of the Platform; (iii) developing Updates, new versions, and new Platform offerings; and/or (iv) verifying the Customer’s and its Users’ compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Platform.
6.6 Anonymized Data. The Customer further acknowledges and agrees that data derived from the Customer Data that is anonymized, de-identified, or is otherwise not reasonably associated or linked to the Customer or any other identifiable individual person or entity (“Anonymized Data”) may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. Such analysis may be performed in conjunction with Anonymized Data derived by the Company from other customers’ use of the Platform and/or input by other customers or obtained from other data sources. The Anonymized Data and results of any analysis thereof may be used by the Company for product improvement and for any lawful purpose, which may include the sale, license, transfer, or other provision of the same to Third Parties. This right to use Anonymized Data will survive termination of this Agreement.
7. Customer Obligations.
(a) Except as permitted under this Agreement or as required by Law, the Customer will not, and will not permit or encourage anyone else, to:
(i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Platform available to any Third Party in any way;
(ii) disassemble, decompile, reverse engineer, or otherwise attempt to derive source code or other trade secrets from the Platform, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the Platform in order to (a) build a competitive product or service or (b) build a product using similar features, functions, or graphics of the Platform;
(iii) modify, remove, or obstruct any proprietary rights statement or notice contained in the Platform;
(iv) “crawl,” “scrape,” or “spider” any data or portion of the Platform (through use of manual or automated means);
(v) send or store on the Platform (a) infringing, unlawful, or tortious material, including material which violates Third Party privacy rights; or (b) materials containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
(vi) attempt to gain unauthorized access to the Platform or its related systems or networks;
(vii) access the Platform if the Customer is a direct competitor of the Company, unless the Company agrees in writing before the Customer accesses the Platform;
(viii) impersonate a User, share passwords, or provide false identity information to access or use the Platform;
(ix) remove, delete, add to, alter, or obscure any part or aspect of the Platform or any warranties, disclaimers, or other notices, or any marks, symbols, or serial numbers (including any of the Company’s Marks) that appear on or in connection with the Platform;
(x) challenge, or cause, induce, authorize, or assist any Person to challenge, the validity, ownership, use, or registration of any Intellectual Property Rights in and to the Platform, Documentation, and all of the Company’s Marks, including “Compliance Command”, or take any action in derogation of the Company’s Marks, including by using, licensing, or applying to register any mark that is identical or substantially similar to any of the Company’s Marks;
(xi) under or in connection with any part of this Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right of the Company or other right of any Person, or violates any applicable Law;
(xii) use the Platform in a way prohibited by applicable Law;
(xiii) use the Platform to violate the legal rights of others, including, but not limited to, Intellectual Property Rights, rights of privacy and/or data protection;
(xiv) use the Platform in a way that could materially harm the functionality or performance of the Platform;
(xv) Permit unauthorized Third Parties to obtain access to the Platform;
(xvi) use or access the Platform in a manner that fails to comply with this Agreement or any Documentation provided by the Company;
(xvii) hack or break any security mechanism on the Platform, or pose a security to any Users on the Platform;
(xviii) use the Platform or any data obtained through the Platform in a false or misleading manner, or in any manner inconsistent with this Agreement;
(xix) use the Platform in any way that may be offensive, profane, obscene, libelous to the Company; or
(xx) attempt to access the Platform by any means other than through the interface that is provided by the Company.
(b) The Customer agrees to comply with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with the Customer’s and its Users’ use of the Platform, including those related to data privacy. The Customer is responsible for any breach of this Agreement by its Users. The Customer agrees that it will promptly notify the Company of any violation of this Section 7.
8. Support Services. Subject to the terms and conditions of this Agreement, the Company will maintain and support the Platform on a “best effort” and an “as needed” basis during the term of the applicable Order Form, at no additional charge to the Customer.
9. Intellectual Property Ownership.
9.1 Company Intellectual Property. Except for the limited right to access and use the Platform under this Agreement and the applicable Order Form, the Customer acknowledges and agrees that, as between the Parties, the Company, or its licensors, as the case may be, has and will retain any and all right, title, and interest in and to the Platform, the services provided therethrough, and any underlying software, as well as all derivative works made by any person or entity based upon the Platform, including all Intellectual Property Rights associated with the foregoing. The Customer will not assert or cause any other party (including, without limitation, any User) to assert any right, title, or interest in or to the Platform or other portion of the Company’s Intellectual Property Rights. If the Customer provides the Company with any feedback or suggestions about the Platform or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Customer, and the Customer irrevocably assigns to the Company all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give the Customer any rights of ownership in, or related to, the Platform or the Company’s Intellectual Property Rights.
9.2 Customer Intellectual Property. Except as set forth herein, this Agreement does not give the Company any rights of ownership in, or related to, any Intellectual Property Rights owned by the Customer.
10. Payment of Fees.
10.1 Fees. The Company will invoice the Customer for Fees that correspond to the Customer’s Subscription to the Platform as set forth in the corresponding Order Form. All Fees are payable in U.S. dollars unless otherwise set forth in the applicable Order Form.
10.2 Payment. Each invoice will be due thirty (30) days after receipt by Customer, except for any amounts subject to a good faith dispute by Customer, as further contemplated in Section 10.3. All Fees must be paid by the Customer before the Company shall be required to provide the Customer with access to the Platform.
10.3 Payment Disputes. The Customer agrees to notify the Company within ten (10) days after receipt of an invoice (the “Dispute Period”) if it believes, in good faith, that there is a discrepancy in the amount of the Fees or any other amounts invoiced by the Company. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. The Customer agrees that it will pay all amounts not subject to the dispute hereunder. If the Customer does not provide the Company with notice of dispute during the Dispute Period, all Fees and other amounts shall be deemed accepted by the Customer.
10.4 Late Payment. All amounts due hereunder (except for those that are subject to a bona fide dispute pursuant to Section 10.3) not paid within forty-five days (45) days following the Customer’s receipt of an invoice shall be deemed past due (“Past Due Amounts”). The outstanding balance of Past Due Amounts will be charged a fee of one and one-half percent (1.5%) of the outstanding balance per month, or the highest amount allowed by Law, whichever is lower.
10.5 Fee Rate Changes.
(a) The Company reserves the right to change the Fees charged for access to the Platform at any time by providing the Customer with written notice at least sixty (60) days in advance of the Fee change; provided, however, that no increases in Fees shall take effect until the conclusion of the Subscription Term then in effect.
(b) In addition to the foregoing, to the extent that applicable Third Party’s impose increased costs or expenses on the Company that materially affect the Company’s cost of delivering the Subscriptions to Company, the Company reserves the right, in its sole discretion, to propose to pass through any such increased costs and expenses to the Customer by reasonably increasing the Fees as set forth on the applicable Order Form with respect to the applicable Subscriptions upon at least thirty (30) days’ prior notice to the Customer; provided that if the Customer does not promptly agree in writing to any such increase, then the Company may not charge for the same, but may terminate the applicable Subscription(s) without further obligation to the Customer. If the Company exercises the foregoing termination right, the Company shall refund the Customer any unused prepaid fees on a pro-rata basis.
10.6 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 10.6, including for Fees previously invoiced, the Company will invoice the Customer and the Customer will pay that amount (unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority).
10.7 Suspension of Service for Nonpayment. If any amount owed by the Customer under this or any other Agreement with the Company that is not subject to a good faith dispute is thirty (30) or more days overdue, the Company may, without limiting its other rights and remedies, suspend any and all Platform access until such amounts are paid in full. The Customer will continue to be charged fees during any period of suspension.
11. Term and Termination.
11.1 Agreement Term. This Agreement will commence on its Effective Date and will remain in full force and effect for so long as any individual Order Form or Subscription remains in effect and for a period of sixty (60) days thereafter (the “Term”).
11.2 Subscription Term. A Subscription shall commence on the subscription start date reflected in the Order Form (“Subscription Start Date”) and shall continue in effect for the period of time prescribed in the Order Form, unless earlier terminated in accordance with this Agreement (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, that Subscription shall be renewed automatically for successive one (1) year terms, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”). Unless either Party gives the other Party written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current Subscription Term, such Subscription shall be renewed as provided for in this Section 11.2.
11.3 Agreement Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:
(a) By either Party, if the other Party commits a material breach of this Agreement and such breach (i) is incapable of cure, or (ii) is capable of cure but remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
(b) By either Party, if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;
(c) By the Company, if the Company reasonably determines that further provision of the Platform would be (or would present a substantial risk) in contravention of any applicable Law or rule of any governmental unit or self-regulatory organization;
(d) By the Company, if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid by the Company for more than thirty (30) days following written notice of such unpaid amounts being delivered to the Customer; or
(e) Upon termination or non-renewal of all of the Customer Subscriptions and active Order Forms.
11.4 Subscription and Order Form Termination. Unless otherwise agreed upon by the Parties, all Subscriptions and Order Forms shall automatically terminate upon termination of this Agreement pursuant to Section 11.3 hereof.
11.5 Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, the Company will promptly terminate the Customer’s access to the Platform and any monies owed by the Customer to the Company shall become due and payable. To the extent the Company possesses Customer Data, the Company will make any Customer Data available for the Customer to access for a period of thirty (30) days after expiration or termination. After such 30-day period, the Company will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
11.6 Survival. Termination of this Agreement or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
12. Confidentiality.
12.1 Confidential Information. Each Party (the “Recipient”) acknowledges that the other Party (the “Discloser”) has business, technical, or financial information relating to the Discloser’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”), which includes the terms and conditions of this Agreement. The Company’s Confidential Information includes non-public information regarding features, functionality, pricing, and performance of the Platform, as well as all non-public user-visible aspects of the Platform. Customer’s Confidential Information includes information and Customer Data submitted, uploaded, and monitored by the Customer to enable and utilize the Platform.
12.2 Non-Use. The Recipient will take at least those measures that it takes to protect its own Confidential Information, but never less than a standard of reasonable care. The Recipient agrees: (i) not to use any Confidential Information of the Discloser for any purpose except to perform its obligations or to exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of the Recipient to Third Parties, except to the Recipient’s own employees, officers, agents, contractors, or other representatives (“Personnel”) who have a legitimate need to know such Confidential Information in order to perform work in connection with this Agreement and who are subject to written confidentiality obligations as least as protective as those of this Agreement.
12.3 Exceptions. The Discloser agrees that these confidentiality obligations and restrictions on use will not apply to any information that Recipient can document: (a) is or becomes generally available to the public through no action or inaction of the Recipient; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it without restriction by a Third Party; or (d) was independently developed without use of or reference to any Confidential Information of the Discloser. Nothing in this Section 12 precludes either Party from disclosing the other Party’s Confidential Information as required by Law or a legal process, provided that the Recipient (a) gives the Discloser prior written notice sufficient to permit the Discloser to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the Discloser (at the Discloser’s expense) in limiting the disclosure. In addition, a Party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers (solely in connection with the due diligence review of such Party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those in this Agreement).
12.4 Return of Confidential Information. Promptly following the earlier of (i) the expiration or termination of this Agreement or (ii) the request of the Discloser, the Recipient will return to the Discloser, or, at the Discloser’s option, destroy all Confidential Information of the Discloser that are in written, electronic, or other tangible form, including, without limitation, all copies, extracts, and derivatives of such Confidential Information. In addition, upon the request of the Discloser, the Recipient will certify to the Discloser in writing the Recipient’s and its Personnel’s compliance with its obligations pursuant to this Section 12.4.
12.5 Redundancy. Notwithstanding the foregoing, the Recipient may retain Confidential Information (a) contained in electronic archives and backups made in the ordinary course of business, (b) that such Party is required by Law to maintain; or (c) that such Party reasonably determines necessary to demonstrate to the other Party or any regulatory authority the Recipient’s compliance with this Agreement or any applicable Law or regulation; provided that all such Confidential Information retained will remain subject to the protections set forth herein for so long as it remains in the Recipient’s possession or control. At such time as a Party’s basis for retaining such information ceases to exist, such party shall return or destroy such information as set forth above.
12.6 Equitable Remedies. The Parties acknowledge that disclosure or use of the other Party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each Party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of this Section 12 by the Receiving Party (without the need to pay any bond), in addition to any other rights and remedies that the Disclosing Party may have at Law.
13. Representations & Warranties; Disclaimers.
13.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
13.2 Company Representations and Warranties. The Company represents and warrants that: (a) it has all rights, licenses, consents, and authorizations necessary to grant the rights and licenses granted in this Agreement; and (b) the Platform will perform substantially in conformity with its Documentation under normal use and circumstances. If the Platform fails to comply with the warranty in this Section 13.2, the Company shall, at its sole option, either: (i) repair or replace the Platform; or (ii) refund the Fees attributable to such period of incompliance, starting on the date the Customer provides written notice of the same, and subject to the Customer ceasing all use of the Platform.
13.3 Customer Representations and Warranties. The Customer represents and warrants that: (a) the Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of Customer Data that is submitted to, uploaded to, placed on, transmitted via, or monitored by the Platform; and (b) the provision and use of Customer Data as contemplated by this Agreement does not and will not violate any Customer privacy policy, terms of use, or other agreement to which the Customer is a party or any Law or regulation to which the Customer is subject.
13.4 GENERAL WARRANTY DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 13.1 AND 13.2, NEITHER THE COMPANY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS, OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, OR GUARANTEES TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE PLATFORM, UPDATES, DOCUMENTATION, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM IS PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM WILL BE TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA NOT PROVIDED OR RECOMMENDED BY THE COMPANY, OR THAT THE PLATFORM’S FUNCTIONALITY WILL MEET THE CUSTOMER’S REQUIREMENTS.
14. Indemnification.
14.1 Company Indemnification of Customer.
(a) The Company will defend, indemnify, and hold harmless the Customer and its respective directors, officers, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a Third Party claim (collectively, “Third Party Claims”) alleging a claim that the Platform or the Customer’s permissible use thereof infringes or violates any Third Party Intellectual Property Rights.
(b) Such indemnity pursuant to Section 14.1(a), however, is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from the Customer’s (i) unauthorized alteration of the Platform; (ii) any use of the Platform by the Customer that violates any Law (including any regulation of any governmental authority or self-regulatory agency or authority applicable to the Customer); or (iii) use of the Platform in a manner that violates Section 7 of this Agreement. In order to resolve any such Third Party Claim relating to Section 14.1(a), the Company may, but is not obligated to, (i) modify or replace the Platform to make it non-infringing; (ii) procure any rights from a Third Party necessary to provide applicable Subscription; or (iii) replace the Platform with work product that is materially equal in capabilities, capacity, performance, and ease of use but is non-infringing. If none of the foregoing remedies is available to the Company on commercially reasonable terms, the Company may terminate this Agreement and the Company will refund to the Customer a prorated portion of any prepaid Fees allocable to the period after such termination. THIS SECTION 14.1 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
14.2 Customer Indemnification of Company. The Customer will defend, indemnify, and hold harmless the Company and its respective directors, officers, employees, licensors, representatives, and agents (the “Company Indemnified Parties”) from and against any and all Third Party Claims alleging (i) unlawful, or fraudulent, misconduct by the Customer or its agents; (ii) a breach by the Customer or its agents of its obligations under Section 7 and Section 13.3; or (iii) alleging that the Company’s use or handling of the Customer Data (in accordance with the terms of this Agreement and the Law) violates any Third Party Intellectual Property Rights or the Law.
14.3 Procedure for Handling Indemnification Claims. As a condition to a Party’s obligations under Sections 14.1 or 14.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (a) prompt written notice of the Third Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (b) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (c) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
15. Limitation of Liability.
15.1 Exclusions of Liability. EXCEPT IN CONNECTION WITH AND TO THE EXTENT OF ANY BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR THE PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
15.2 Maximum Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ALL CLAIMS UNDER, IN CONNECTION WITH OR ARISING OUT OF, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE GREATER OF THE FEES RECEIVED BY OR DUE TO THE COMPANY FROM THE CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR TEN THOUSAND DOLLARS ($10,000). THE FOREGOING LIMITATIONS WILL NOT APPLY TO: (A) THE CUSTOMER’S OBLIGATION TO PAY THE FEES OR (B) ANY BREACH OF SECTION 7 OR SECTION 9.
16. Notices. Except as specifically set forth in this Agreement or Order Form, all notices, demands, or consents required or permitted under this Agreement will be in writing. Notice will be considered delivered and effective when (a) personally delivered; (b) one (1) day after posting when sent by a reputable private overnight carrier; (c) five (5) days after posting when sent by certified United States mail, or (d) one (1) day after sending via email; provided that any notice sent via email must be followed by a written notice in accordance with one of the other methods of notification. All notices must be sent to the respective addresses set forth on the signature page to this Agreement or to such other address as may be provided by either Party to the other Party from time to time in writing.
Except as specifically set forth in this Agreement or an Order Form , we may deliver any notice, demand, or consent required or permitted hereunder: (i) via a notice appearing in your Account or on the Platform or (ii) via electronic mail or physical mail to your contact information on record with us, which notice will be deemed received by you when posted, transmitted, or sent by us. Where we permit notices to be given to us via a feature or functionality of the Platform (for example, changes to your Account or billing information), you may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by us, but only to the extent the notice is of a type for which the feature or functionality is intended to convey (for example, using your Account page to update your contact information). Otherwise, all notices to us under this Agreement (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to us by, (a) personal delivery by hand, (b) registered mail, (c) certified mail, return receipt requested, or (d) reputable national or international mail courier with proof of delivery, and it will be deemed effective only upon actual receipt by us. Our current address is:
Compliance Command, Inc.
Attn: Notices
13010 Morris Rd Bldg. 1, Ste 600,
Alpharetta, GA, 30004, USA
We may change our notice address, from time to time, by providing you with notice in accordance with this Section 16. You are responsible for making sure that you are sending notices to our most current notice address. THIS SECTION WILL SURVIVE TERMINATION OF THESE TERMS FOR ANY REASON.
17. Assignment. Each Party agrees that it will not assign this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed, provided that the Company may assign this Agreement without prior written consent to: (a) a parent or subsidiary, (b) an acquirer of all or substantially all of the stock or assets of the Company, or (c) a successor by merger. Any attempted assignment or transfer in violation of this Section 17 will be void.
18. Miscellaneous.
18.1 Publicity. The Customer expressly grants the Company the right to identify the Customer as its customer on the Company’s website and in its advertising and promotional materials. In connection with the foregoing, the Customer grants the Company, during the Subscription Term, a non-exclusive, non-transferrable, revocable, limited right and license to use the Customer’s name and logo in accordance to the Customer’s style guide (as applicable).
18.2 Third Party Beneficiaries. This Agreement will be binding upon and inure to the benefit of the Parties and Salesforce (solely and specifically as related to Section 4). The Parties intend that that no person or entity, except the Parties and Salesforce, will have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
18.3 Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents. Except as expressly agreed by the Parties, neither Party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
18.4 No Exclusivity. Nothing in this Agreement restricts a Party’s right to contract with any Third Party to provide products and/or services similar to or identical to the Platform provided under this Agreement.
18.5 Entire Agreement. This Agreement and the applicable Order Form constitute the entire Agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof. To the extent, there is any conflict among the terms of this Agreement and the applicable Order Form, such conflict will be governed in the following order: (a) the terms of the Order Form; and then, (b) this Agreement and any applicable exhibits, the terms of which are incorporated into the Order Form by reference.
18.6 Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement, and signed by an authorized representative of each Party. Notwithstanding the foregoing, the Company reserves the right, in its sole discretion, to make any changes to the Platform or any ancillary items or materials that it deems necessary or useful to: (i) maintain or enhance the quality or delivery of the Platform, (ii) the competitive strength of or market for the Platform, (iii) the Platform’s cost efficiency or performance; or (iv) comply with applicable Law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
18.7 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by Law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.8 Force Majeure. Neither Party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of Third Party vendors and licensors, Internet slow-downs or failures, computer hackers or other causes that are beyond a Party’s reasonable control.
18.9 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed, and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
18.10 Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
18.11 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware 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 Delaware and without regard to the U.N. Convention on the International Sale of Goods (CISG).
18.12 Disputes; Arbitration. Any dispute, controversy, or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any Party involved, shall be submitted to, and settled by, arbitration pursuant to the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) by Arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Atlanta, Georgia, or as agreed upon by the Parties, and judgment on the award rendered by the Arbitrators may be entered in any court with jurisdiction. The arbitration shall be conducted in the English language. The arbitration shall be conducted by one (1) neutral and impartial arbitrator (the “Arbitrator”) agreed upon by the Parties or otherwise assigned by the AAA. The Arbitrator shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief (including an injunction or preservation of evidence) in any court of law having proper jurisdiction, in addition to all other available remedies. The Parties agree that the prevailing Party in any arbitration action hereunder shall be entitled to receive, in addition to all other damages and awards, the costs incurred by such Party in conducting the arbitration, including reasonable attorneys’ fees and expenses, and arbitration costs. In addition to and not in limitation of the foregoing mandatory arbitration requirements, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief – including an injunction or preservation of evidence – in any court of law having proper jurisdiction, in addition to all other available remedies.
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