BUSINESS TERMS

6. PRIVACY AND SECURITY; CONFIDENTIALITY

6.1 Privacy Statement. The Company will treat your personal information in accordance with the Company’s current Privacy Statement, which may be amended by the Company from time to time at its sole discretion, with notice to you by email amending the then current version which is incorporated into this Agreement by this reference. The Privacy Statement is located at www.pseesolutions.com/privacy. By accepting the terms and conditions of this Agreement, you agree to be bound by the terms and conditions of the Privacy Statement.

 

6.2 Password Security. You are responsible to keep your password(s) secure, and you agree not to disclose your passwords to any third party. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. The Company may request temporary use of your password(s), and may otherwise retain your password(s) in a secure electronic file related to your account, to facilitate routine support and maintenance services. If you lose your password(s) or the encryption keys for any of your Company products or Services, the Company may not be able to assist you in recovering any associated data or information. You must notify the Company immediately of any suspected unauthorized use of your accounts or any other security breach related to the Services. If the Company determines that a security breach or suspected fraudulent activity has occurred or is likely to occur on your account, the Company may suspend your account until the applicable account activity has been verified.

 

6.3 Confidential Information. Each party acknowledges that, in connection with the performance of this Agreement, it may receive certain Confidential Information of the other party. Each party hereby agrees: 

(a) to hold and maintain in strict confidence all Confidential Information of the other party and not to disclose it to any third party; and (b) not to use any Confidential Information of the other party except as permitted by this Agreement or as may be necessary to exercise its rights or perform its obligations under this Agreement. Each party will use at least the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like importance, and in no event shall such degree of care be less than reasonable care. “Confidential Information” means, collectively, (i) any information disclosed by either party to the other party, either directly or indirectly, whether written, verbal, magnetic, photographic, optical, or other form, or by inspection of tangible objects, which has been, or will be, furnished or disclosed by a party, or its employees, representatives, consultants or agents, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, supplier and installer names and data, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation, and which has been designated as being confidential, or which is otherwise disclosed in such a manner or is of such a character as would put a reasonable person on notice as to the confidential and proprietary nature of the information (collectively, the “Disclosed Materials”); (ii) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the Disclosed Materials; and (iii) information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. 

(c) HIPPA: A written contract between a covered entity and a business associate must: (1) establish the permitted and required uses and disclosures of protected health information by the business associate; (2) provide that the business associate will not use or further disclose the information other than as permitted or required by the contract or as required by law; (3) require the business associate to implement appropriate safeguards to prevent unauthorized use or disclosure of the information, including implementing requirements of the HIPAA Security Rule with regard to electronic protected health information; (4) require the business associate to report to the covered entity any use or disclosure of the information not provided for by its contract, including incidents that constitute breaches of unsecured protected health information; (5) require the business associate to disclose protected health information as specified in its contract to satisfy a covered entity’s obligation with respect to individuals’ requests for copies of their protected health information, as well as make available protected health information for amendments (and incorporate any amendments, if required) and accountings; (6) require the business associate to make available to covered entity its internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by the business associate on behalf of, the covered entity for purposes of HHS determining the covered entity’s compliance with the HIPAA Privacy Rule; (7) at termination of the contract, if feasible, require the business associate to return or destroy all protected health information received from, or created or received by the business associate on behalf of, the covered entity; (8) require the business associate to ensure that any subcontractors it may engage on its behalf that will have access to protected health information agree to the same restrictions and conditions that apply to the business associate with respect to such information; and (9) authorize termination of the contract by the covered entity if the business associate violates a material term of the contract. Contracts between business associates and business associates that are subcontractors are subject to these same requirements.

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This document includes sample business associate agreement provisions to help covered entities and business associates more easily comply with the business associate contract requirements. While these sample provisions are written for the purposes of the contract between a covered entity and its business associate, the language may be adapted for purposes of the contract between a business associate and subcontractor.

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This is only sample language and use of these sample provisions is not required for compliance with the HIPAA Rules. The language may be changed to more accurately reflect business arrangements between a covered entity and business associate or business associate and subcontractor. In addition, these or similar provisions may be incorporated into an agreement for the provision of services between a covered entity and business associate or business associate and subcontractor, or they may be incorporated into a separate business associate agreement. These provisions address only concepts and requirements set forth in the HIPAA Privacy, Security, Breach Notification, and Enforcement Rules, and alone may not be sufficient to result in a binding contract under State law. They do not include many formalities and substantive provisions that may be required or typically included in a valid contract. Reliance on this sample may not be sufficient for compliance with State law, and does not replace consultation with a lawyer or negotiations between the parties to the contract.

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6.4 Disclosure Under Compulsion of Law. In the event you are the recipient of any court order, subpoena or other governmental authority which purports to require the disclosure of any of the Company’s Confidential Information, or in the event such disclosure is required by applicable law, regulation or stock exchange rule, you shall use commercially reasonable efforts to provide the Company with prompt notice of the same prior to any disclosure and with such advance notice so as to afford a reasonable opportunity to protect the Confidential Information from public disclosure, and shall construe any such court order, subpoena or other governmental authority requesting such information in the narrowest permissible manner and shall seek to obtain and cooperate with the Company to obtain a proper protective order, a court ruling quashing any such subpoena, or any other governmental or private mechanism for retention of the confidential status of the information sought. As a result of a disclosure under compulsion, you agree to hold PSeeSolutions harmless as to complying with such request. It is your responsibility for paying for any attorney fees, should PSeeSolutions have to seek legal advice as to disseminating such information based on a subpoena, or other governmental or litigation compulsion to disclose information.

 

6.5 Exceptions. Notwithstanding the foregoing and except with respect to personal information, the parties agree that Confidential Information will not include any information that: (a) the disclosing party authorizes to be publicly disclosed; (b) is rightfully received by the receiving party from a third party without restriction on disclosure and without breach of an agreement or obligation to maintain its secrecy; (c) is rightfully known to the receiving party, free from any confidentiality obligation whatsoever, from a source other than the disclosing party as shown by written records kept in the ordinary course of business; or (d) is independently developed without use of the Confidential Information of the disclosing party.

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7. PAYMENTS

7.1 Payment Method. You authorize the Company to charge all amounts owed to the Company under this Agreement to ACH or credit card. You will at all times provide to the Company valid and current credit card information. If you terminate your credit card or elect to pay for the Services with a different credit card, or if you receive a new account number for your credit card, you shall immediately notify the Company of such termination or change. If the Company for any reason is unable to bill your credit card for any amount owed under this Agreement, you authorize the Company to bill you directly for such amount, which amount, together with any late fees, chargeback (defined below) or other fees set forth in this Agreement, shall be immediately due and payable.

 

7.2 Payment Obligations. You agree to pay all amounts owed to the Company under this Agreement, as well as any applicable taxes and other charges, when due.

 

7.3 Charges. The Company reserves the right to charge any amounts owed by you under this Agreement to your credit card or bill you directly for such amounts at any time after the conclusion of the Services.

 

7.4 Late/Chargeback Fees; Attorneys’ Fees. For any amount (a) not paid to the Company when due; or (b) paid by you via credit card which (i) the credit card issuer (the “issuer”) later rejects or refuses to pay, or (ii) the Company is later required to reimburse the issuer (each, a “chargeback”), then in each case, the Company reserves the right to charge and you agree to pay, in addition to the amount not paid, rejected or refused, a fee of 10% of such amount, or the highest rate allowed under applicable law, whichever is lower, and to pay interest on the overdue amount at the rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, until paid in full. In addition, you agree to pay all collection costs, including reasonable attorney’s fees, incurred by the Company in collecting any amounts that you owe to the Company, whether incurred before or after civil litigation is commenced.

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8. SERVICES GUARANTEE

With respect to any claim that any of the Services were deficient, you must notify the Company within five (5) calendar days following the Company’s performance of such Services. If you fail to give the Company written notice of such deficiency within such 5-day period, the Company will not be required to remedy such deficiency. Provided that you give Company notice in accordance with this paragraph, the Company agrees to use commercially reasonable efforts to remedy such deficiency and, in connection therewith, you agree to give the Company reasonable access to your Computer Systems and Devices covered by the Services, as well as access to your home or office premises if necessary to enable such efforts. If the Company, using commercially reasonable efforts, is unable to remedy any deficiency in Services provided, then the Company, in its sole discretion, may elect to issue you a refund for the deficiencies on Services provided, as specified in Section 9 below. Notwithstanding the foregoing, the Company’s liability to you shall be limited as specified in this Agreement.

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9. REFUND POLICY

Fees for prior months of Services are nonrefundable. If the Company is unable to remedy a deficiency in the Services pursuant to Section 8 above or Section 18.2 below, the Company may elect to issue you a refund for the applicable deficiency based on the Services provided, in the Company’s sole discretion. If it is deemed that a refund is due, a credit will be issued to the credit card that was used to purchase Company’s Services.

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10. TERM AND TERMINATION

10.1 Effective Date and Term. The initial term for all Services continues for one (1) year from the date that you first register for such Services (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”), subject to earlier termination pursuant to Section 10.2 or Section

10.3 below, until such time as the Company or you provide written notice of termination to the other party at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable.

 

10.2 Termination by You. In the event that the Company breaches any provision of this Agreement, you agree to provide the Company with a right to cure the breach. The Company shall have the right to cure any breach within thirty (30) days following its receipt of written notice from you of such breach. If the Company is unable to reasonably remedy any breach of this Agreement and such breach substantially impairs your use of the Computer Systems and Devices specifically registered with or otherwise authorized by the Company for use in connection with the Services covered under this Agreement, you may terminate this Agreement upon written notice to the Company. In any such case, the Company’s liability to you shall be limited as specified in this Agreement.

 

10.3 Termination and/or Suspension by the Company. If, as determined by the Company in its sole discretion: (a) you breach any provision of this Agreement or any license for Third Party Software (as defined below); (b) your use of any of the Services is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to any of the Services, the Company’s network, or the use and enjoyment of the Services by third parties; (c) the Company receives an order from a court to terminate the Services provided to you; (d) the Company for any reason ceases to offer any of the Services previously made available to you under this Agreement; or (e) you are abusing or otherwise misusing any of the Services, then, in any such case, the Company at its sole election may terminate this Agreement or suspend one or more of the Services immediately without notice.

 

10.4 Terminated Account. The Company, in its sole discretion, may refuse to accept your request for Service, renewal or re-subscription following a termination or suspension of your use of any of the Services. In the event you purchase the Platinum Plan subscription and terminate this Agreement other than in accordance with Section 10.2 above, you agree to pay to the Company a cancellation fee of $150.00 and any unpaid/unused fees for Services as determined by the Company, which fees will be charged to your credit card.

 

10.5 Effect of Termination. Upon the termination or expiration of your account or this Agreement for any reason, your right to use the Services and the Licensed IP (defined below) and your access to the Services (including any content you submit) shall immediately terminate, and you must immediately return all Licensed IP to the Company. You acknowledge that the Company is not obligated to provide a copy of your Content or data to you or to any third party, and that upon termination or expiration of this Agreement for any reason, the Company may purge your content and data from its systems without notice to you.

 

10.6 Survival. The rights and obligations of the parties set forth in this Section 10.6 and Sections 3, 5.1, 6.3, 6.4, 6.5, 7, 10.4, 10.5, 11, 12, and 14 – 24 of this Agreement, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

 

11. GOVERNING LAW, JURISDICTION AND VENUE; JURY WAIVER; CLAIM LIMITATIONS

11.1 Governing Law, Jurisdiction and Venue. This Agreement is governed by and construed in accordance with the laws of the State of Ohio and the United States, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the state and federal courts in Columbus, Ohio; except that the Company may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. You and the Company hereby submit to the exclusive jurisdiction of these courts and agree not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. You and the Company waive any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the federal or state courts sitting Salt Lake City, Utah, and agree not to plead or claim in such courts that any such action has been brought in an inconvenient forum.

 

11.2 Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES THAT THEY EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.

 

11.3 Giving Up Right of Class Action. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST COMPANY INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN ANY STATE STATUTE. If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.

 

11.4 Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SERVICES AND/OR LICENSED IP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

12. SOFTWARE LICENSES AND THIRD PARTY SERVICES

12.1 Licensed IP. The Services (and all copyright and other proprietary or intellectual property rights), all software, CDs, programs, documentation and other intellectual property which is owned by the Company and/or which the Company makes available or furnishes to you pursuant to this Agreement, via download, other media, or other delivery method, and/or in connection with the provision of the Services, and all other rights and derivative works related thereto are referred to as the “Licensed IP.” The Licensed IP may be accompanied by an end-user license agreement or similar agreement from the Company. Your use of the Licensed IP is governed by the terms of such agreement and by this Agreement, where applicable. You may not install or use any Licensed IP that is accompanied by or includes an end-user license agreement unless you first agree to the terms and conditions of the end-user license agreement. With regard to any Licensed IP for which your acceptance of a separate license agreement is not required, the Company hereby grants to you one limited, non-exclusive, non-transferable, non-sub-licensable license to access and use the same, only during the term of this Agreement, solely for your own personal or internal business purposes with respect to the Computer Systems and Devices specifically registered with or otherwise authorized by the Company for use in connection with the Services subject to this Agreement, and only as part of or for use with the Services and for no other purpose. You agree not to copy, modify, publish, transmit, rent, license, re-sell, sublicense, transfer, trade, reverse engineer, decompile, disassemble, or attempt to derive source code or other intellectual property from the Company or allow others to use or benefit from any of the Licensed IP. You acknowledge and agree that you are not granted any title or rights of ownership in any of the Licensed IP. The Company reserves the right to update or change the Licensed IP from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Licensed IP. All rights not expressly granted to you pursuant to this Section 12.1 are expressly reserved by the Company and any Third Party Providers, licensors, and suppliers, as applicable. If any software included within the Licensed IP is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the software and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 C.F.R. 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions). All software included within the Licensed IP is either a commercial product, produced entirely at private expense, copyrighted and owned by the Company or a third party provider or supplier, licensed to the Company or is otherwise proprietary to the Company.

 

12.2 Licensed IP Confidentiality and Ownership. You agree that the Licensed IP is confidential information of the Company or its Third Party Providers, licensors, or suppliers, and that you will not disclose the Licensed IP or any other confidential information of the Company to others or use the Licensed IP or any other confidential information except as expressly permitted herein. The Licensed IP contains copyrighted material, trade secrets, patents, and proprietary information owned by the Company or its Third Party Providers, licensors, or suppliers. You agree not to remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of any of the Licensed IP. You acknowledge that the license in Section 12.1 above, is not a sale of intellectual property and that the Company or its Third Party Providers, licensors, or suppliers will continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Licensed IP and related documentation, as well as any corrections, updates and upgrades.

 

12.3 Third Party Software. As part of the Services, the Company may sublicense to you or suggest the acquisition, installation and use of certain Licensed IP that is third party software (the “Third Party Software”). You acknowledge that any Third Party Software will be sublicensed to you by the Company or licensed to you by the Third Party Provider that is the owner or licensee of the Third Party Software. You agree to be bound by and subject to the terms and conditions set forth by such Third Party Providers before installing Third Party Software, regardless of whether the Company sublicenses to you or assists you in the acquisition, installation, and/or use of Third Party Software. The Company has no rights to the Third Party Software and does not license Third Party Software to you except to the extent that the Company is a reseller or licensee of the Third Party Software. The Company does not make any representation or warranty regarding the Third Party Software.

 

12.4 Assistance and Support. The Company will provide technical assistance and support for the Licensed IP in accordance with its then current policies, which the Company may change from time to time in its sole discretion. To the extent that the Company provides technical assistance and support for any Third Party Software or equipment, you agree to comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. The Company makes no representation or warranty that it is an authorized service provider for any Third Party Software or for any equipment, and you acknowledge and agree that it is your sole responsibility to determine if you require additional rights for the Company to provide such support and, if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.

 

13. INDEPENDENT CONTRACTOR

You acknowledge that the Company is an independent contractor and neither the Company nor any of its directors, officers, agents, employees, or affiliates is or shall be deemed employed by you. The Company reserves the right to determine the method, manner and means by which the Services will be performed. The Company and its directors, officers, agents, employees, and affiliates are not required to perform the Services for you during any particular hour of the day or night, and the time spent accessing your Computer Systems and Devices covered by the Services is at the Company’s discretion, subject to your access times and security requirements. You further acknowledge that the Company is not required to devote its full time or the full time of any of its directors, officers, agents, employees, or affiliates to the performance of the Services, and you acknowledge that the Company has other clients and that it offers Services to the general public. The order and sequence in which the Services are to be performed shall be under the control of the Company and its agents, employees and affiliates, and not under your control. What has been stated to be performed at certain time intervals will be adhered to, to the best of our schedule.