Terms of Service

This Agreement includes and hereby incorporates by reference the following important agreements, as they may be in effect and modified from time to time: End User License Agreement, Site Terms of Use, Fee and ACH Authorization Agreement, Cookie Policy, Privacy Policy, Protiv App Software License Agreement, and/or API Terms of Use. These agreements are collectively, with this Agreement, called the "Terms of Service."

Subject to the conditions set forth herein, Protiv may, in its sole discretion, amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. Protiv will provide reasonable advance notice of any amendment that includes a Substantial Change, by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Protiv, Protiv will provide at least 30 days' advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the "Effective Date").

You understand that by using the Site or Site Services after the Effective Date, you agree to be bound by the Terms of Service. If you do not accept the Terms of Service in its entirety, you must not use the Site or the Site Services after the Effective Date except as permitted by the Site Terms of Use.

Protiv is in the business of supplying software applications and related services including, among other things, compensation management solutions that link productivity, safety, and other KPI to employee wages. Customer desires the use of the Protiv software application products and services.

Definitions

• "aaS" is an acronym for "As A Service" and means the combined hosting and support services provided in this Agreement.
• "aaS Materials" shall mean the written materials relating to the operation and use of the Vendor Software including, but not limited to, user manuals, user guides, technical manuals, release notes, and online help files regarding use of the Vendor Software provided as part of the Service, and any other materials prepared in connection with any Vendor Software modification, correction, or enhancement, and shall include any updated versions of aaS Materials as may be provided by Vendor from time to time (i) in the course of providing the Service; (ii) as part of online tutorials or help files provided with the Service; or (iii) in the course of providing web seminars in which Customer or Customer's Users enroll.
• "Application Support Services" includes Product Support Services defined in Schedule B.
• "Cloud Hosting" means the provision of products and services in a hosted, virtualized environment, accessible via the internet.
• "Vendor Software" means Vendor proprietary software applications and user interfaces as defined in Schedule A and made available to Customer by Vendor as part of the Service. Vendor Software may contain third-party components licensed to Vendor.
• "Customer Data" means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that Customer creates, installs, uploads to or transfers in or through the Service or provides in the course of using the Service, excluding identification and other information provided by Customer relative to Customer Users.
• "Electronic Communications" shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service.
• "Infrastructure Support Services" shall mean the support provided by Vendor for the maintenance and stability of the computer hardware and hosting environment provided as part of the Service.
• "Product Support Services" shall mean the support provided by Vendor to remediate, correct, or abate errors in the out-of-the-box Vendor Software that is provided as part of the Service as defined in Schedule B.
• "ProPay" shall mean a project created by Customer, manually or through integrations.
• "Purchase Order Form(s)" refers to a Customer document which may be issued by a Customer to confirm Customer's purchase of the Service. The parties acknowledge and agree that the terms and conditions of any such Purchase Order Form, if used, shall not be binding upon the parties or modify, amend, or supersede the terms and conditions of this Agreement.
• "Service" shall mean the software and infrastructure in a hosted environment provided and maintained by Vendor to which Customer is being granted access under this Agreement via a web site or mobile application. Service or Services includes Product Support Services described in this Agreement.
• "Term" means any Initial Term and/or Renewal Term, as defined in Section 6.
• "Third Party Products" means application software products provided by third-party vendors, including operating system and application software with which the Vendor Software interfaces and which provides certain functionality that may be essential to the operation of the Vendor Software.
• "User(s)" means Customer's employees, representatives, consultants, contractors, subcontractors, or agents who are added as users and visible within the Service.
• "Identifiable" means information that can be identified to Customer or a Customer's User, or any other specific person or company.

1. Provision of services

In consideration of the fees paid by Customer under this Agreement, Protiv agrees to provide Customer and their Users access to the Service. Protiv offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you:

1. are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity);
2. will use the Site and Site Services for business purposes only;
3. will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the management of productivity-based compensation; and
4. are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business), in each case who can form legally binding contracts.

2. Installation and registration

Under this Agreement, Protiv will open a Master License to enable Customer and their Users to access the Services described in this Agreement. This installation is contingent on:

1. the Protiv End User License Agreement having been accepted by Customer and Users;
2. Customer and their Users providing all data required by Protiv in order to utilize the Protiv Software;
3. Customer and their Users completing any tasks required as a prerequisite in order for the system to be placed into production use. Examples of these types of activities are, but not limited to, validation activities, Terms and Conditions approval, data migration, User training, system configuration, etc.;
4. Customer providing internal infrastructure and connectivity needed to access the Services.

Failure of Customer to achieve the contingencies described above, as well as all other tasks required of Customer, may prevent the Customer or their Users from accessing some or all of the Services.

To access and use certain portions of the Site and the Site Services, you must register for an Account. Subject to the Site Terms of Use, certain portions of the Site are available to Site Visitors, including those portions before your Account registration is accepted. Protiv reserves the right to decline a registration to join Protiv, for any lawful reason, cost to maintain data, or other business considerations.

If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. Your privacy is important to Protiv and your information will be handled in accordance with our Privacy Policy, which is part of the Terms of Service, and applicable law.

By registering for an account to use the Site or Site Services (an "Account"), by using the Site or Site Services after the Effective Date, if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.

3. License grants

Subject to the terms and conditions of this Agreement, Protiv grants to Customer, during the Term of this Agreement, the nontransferable, nonexclusive worldwide right to permit Users to:

1. use the Service, including the Base Components thereof;
2. display and print Customer and/or User Data; and
3. use the aaS Materials solely in connection with the Service, all solely for Customer's own internal business operations, provided such internal business operations shall not include project-based compensation tools or systems similar to those provided by Protiv. For purpose of this license grant, "Customer" shall include any outsourced or other third-party, or similar personnel supporting Customer or Users, as part of its typical business practices, acting under Customer's direction and for whom Customer is responsible hereunder.

Customer acknowledges and agrees that the license granted is not a concurrent user license and that the rights granted to Customer and Users in this Agreement are subject to all of the following agreements and restrictions:

1. the maximum number of Users that Customer authorizes to access the Service shall not exceed the number of Users licensed in a given month;
2. licenses cannot be shared or used by more than one individual User;
3. Customer nor their Users shall license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service or the aaS Materials available to any third party other than an authorized User;
4. Customer nor their Users shall modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, including without limitation the Protiv Software and/or aaS Materials that are provided as a part thereof, or access the Service or aaS Materials in order to build a similar or competitive product or service;
5. Customer shall not create Internet "links" to the Service or "frame" or "mirror" any part of the Service, including any content contained in the Service, on any other server or device;
6. except as expressly stated herein, no part of the Service or aaS Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
7. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service;
8. Customer acknowledges and agrees that Protiv or its Third Party Vendors shall own all right, title and interest in and to all intellectual property rights in the Service and the aaS Materials and any suggestions, enhancement requests, feedback, or recommendations provided by Customer, or its Users, relating to the Service or the aaS Materials, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof;
9. unauthorized use, resale, or commercial exploitation of any part of the Service or aaS Materials in any way is expressly prohibited;
10. Customer does not acquire any rights in the Service or aaS Materials, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer or their Users are reserved by Protiv and Third Party Providers; and
11. this Agreement is not a sale and does not convey any rights of ownership in or related to the Service, Protiv Software or Third Party Products to Customer or their Users.

To register for an Account to join the Site, you must complete a User profile ("Profile"), which you consent to be shown to other Users in your company. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information and to correct any such information that is or becomes false.

Each User who uses the Site must register for their own Account. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account.

You authorize Protiv to assume that any person using the Site with your username and password either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both, or (b) the use would violate the Terms of Service.

4. Licenses from Customer and/or Users

Subject to the terms and conditions of this Agreement, Customer grants to Protiv and its Third Party Vendors the non-exclusive, nontransferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use:

1. Identifiable Customer and User Data solely to the extent necessary to provide the Service to Customer and their Users;
2. any trademarks that Customer provides Protiv for the purpose of including them in Customer's interface of the Service ("Customer Trademarks"); and
3. Non-Identifiable Customer and User Data for research, analysis, comparisons, publication, marketing, sales and other similar activities.

Customer acknowledges and agrees that Customer Data and information regarding Customer and Customer's Users that is provided to Protiv and its Third-Party Vendors in connection with this Agreement may be processed by Protiv and its Third Party Vendors to the extent necessary to provide the Service. In addition, Customer acknowledges and agrees that it is Customer's obligation to inform Customer's Users of the processing of Customer and User Data and information regarding Customer and Customer's Users pursuant to this Agreement and to ensure that such Users have given any necessary consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Customer and User Data and information regarding Customer and Customer's Users.

Customer agrees that the license to copy, store, record, transmit, display, view, print, or otherwise use the Customer Data shall survive termination of this Agreement for: (i) the purpose of storing backup data in accordance with the terms of this Agreement, and (ii) use of Non-Identifiable data for research, analysis, comparisons, publication, marketing, sales, and other similar activities.

By providing Customer and their Users with the Services, Protiv does not acquire any right, title, and/or interest in Identifiable content material (including but not limited to text, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that Customer makes available for use by Users by means of the Services (collectively "Content"). Except as expressly set forth in the Schedules as being the responsibility of Protiv, Customer is solely responsible for all Content.

5. Proprietary rights

Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that the content or information presented to the Customer through the Service may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except where expressly provided otherwise by Vendor, nothing in the Service, the aaS Materials, or the Agreement shall be construed to confer any license to any of Vendor's (or its third party manufacturer's, author's, developer's, vendor's, and service provider's ("Third Party Vendors")) intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks of the Vendor Software listed on Schedule A and other Vendor service marks, logos, and product service names are marks of Vendor (the "Vendor Marks"). Customer agrees not to display or use the Vendor Marks, or the marks of any Third Party Vendor, in any manner without the owner's express prior written permission. Vendor reserves the right to subcontract any or all services provided hereunder to third parties.

6. License fees, payments, and term

The initial term ("Initial Term") of this Agreement will commence on the Effective Date as defined in Section 8.1.

Payment Due Upon: Monthly anniversary of Effective Date.

User Fees

Monthly: The price charged will be based on the number of workers assigned onto a ProPay in a given month, subject to monthly minimums. The specific price charged is provided and agreed to by the Customer when the Customer initially enters their payment information into the Protiv payment platform.

The Agreement shall automatically continue on a month-to-month basis until such time as either party provides notice of Termination as covered in Section 8.2. User Fees shall be payable on the monthly anniversary date, each month thereafter.

Annual: Annual fees are credits towards usage, with a minimum number of "credits" being used each month. For example, if a company pays annually for 10 workers, you have 120 credits. If that company only has 8 workers that month, then they use only 8 credits. Annual contracts renew on the 1-year anniversary, subject to the Termination clause of Section 8.2. User Fees shall be payable on the annual anniversary date each year thereafter.

In addition to any remedies Protiv may have pursuant to this Agreement or at law for non-payment, delinquency in payment may result in a delay or suspension of the right to use the Service. In the event Protiv incurs any costs (including reasonable attorney's fees) from efforts collecting overdue fees from Customer, Customer agrees to pay such costs. Customer further agrees to pay all foreign, federal, state, and local taxes, if applicable, to Customer's access to, use, or receipt of the Service.

7. Terms of Service

7.1 Service extensions or updates

Customer further agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service subsequently purchased by Customer pursuant to an amendment accepted by Vendor referencing this Agreement, will be subject to this Agreement.

7.2 Customer and Users must have internet access

To use the Service, Customers and Users must have, or must obtain, access to the World Wide Web, either directly or through devices that access Web-based Content. Customer must also provide all equipment necessary to make (and maintain) such connection to the World Wide Web.

7.3 Email, SMS, system messaging, and notices

Customer agrees to provide Vendor with email addresses and phone numbers for Users through which the Vendor will communicate operations and activity details related to the usage of the Services. This specifically includes automated messaging to Users regarding System activity, or lack of activity, of that User, or other Users. Notwithstanding any provision in the Agreement to the contrary, acknowledgement by an officer of Customer is not required with respect to any email, SMS, system messages, and other communications pertaining to the Customer's and their User's routine use of the Service, including without limitation communications relating to the operation, performance, activity, support, maintenance, or the updating of the Service. Customer further agrees the Vendor may provide any and all required legal notices to Customer through either email (or other electronic transmission), or by mail or express delivery service.

7.4 Access, Active/Inactive status, and notification

All Users will have access to the System, however access does not permit the use of all Services. To fully use all features of the Services, specifically the receipt of a ProPay, a User must be set to Active status, which triggers billing for that period. Customer's authorized Users may set Users to Active status at any point during a given billing period. Any User set to Active will remain Active until the Customer sets the User to Inactive status. A User cannot be set to Inactive status during a billing period in which they have been assigned to a ProPay, had hours on a ProPay, or were assigned shifts associated with a ProPay. Users will set unique passwords with usernames. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or usernames with unauthorized Users. Customer will be responsible for the confidentiality and use of Customer's (including its employees') passwords and usernames. Customer and Users will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, compensation information, ProPay information, project information including tasks, Customer and/or User Data, and all other data of any kind contained within emails or otherwise entered electronically through the service. Protiv will act as though any Electronic Communications it receives under Customer's passwords, username, and/or account number will have been sent by Customer. Customer agrees to notify Protiv if Customer becomes aware of any loss or theft of any of Customer's passwords or usernames.

7.5 Customer's responsibilities

Customer agrees to comply with all applicable local, state, national, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer will ensure that any use of the Service by Customer's Users is in accordance with the terms of this Agreement. Customer agrees to notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data. Customer acknowledges and agrees that the Service is subject to the U.S. Export Administration Laws and Regulations. Customer agrees that no part of the Service or information obtained through use of the Service is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, unless authorized by the U.S. Government. Any unauthorized use of the Service may violate copyright laws, trademark laws, labor laws, the laws of privacy and publicity, and communications regulations and statutes.

In addition to its responsibilities in this Agreement, Customer is responsible for all Customer responsibilities indicated in the Schedules attached hereto or entered into pursuant hereto and all other responsibilities not designated as responsibilities of Vendor.

Customer shall not resell the Services directly or indirectly to third parties.

7.6 Transmission of data

Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to Customer's use of the Service. Customer expressly consents to Vendor's interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the internet and over various networks, only part of which may be owned and/or operated by Vendor. Customer acknowledges and understands that changes to Customer's Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that Vendor is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted, or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Vendor.

7.7 Protiv's support

Protiv will make commercially reasonable efforts to promote successful utilization of the Service, including but not limited to maintenance and support of the Protiv Software. Product Support pertains to support designed to remedy errors in Protiv Software that cause it to deviate from its specifications.

7.8 Confidential information

Each party may have access to information that is confidential to the other party ("Confidential Information"). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Customer's Confidential Information shall include, but not be limited to, Customer Data. A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information, as established by written records.

The parties agree to use commercially reasonable efforts not to make each other's Confidential Information available in any form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Vendor may disclose Customer's Confidential Information to its Third Party Vendors solely to the extent necessary to provide products or services under this Agreement. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the "Responding Party") shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. Notice to Protiv must also be provided via email to help@protiv.com. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.

Notwithstanding anything to the contrary in this Agreement, Non-Identifiable Content is not included in Confidential Information as defined above. To the extent Vendor has any access to Content, Identifiable or not, in the course of providing the Services, Vendor's entire obligation to keep Content confidential is stated in this Section below. Vendor shall not intentionally disclose Customer's Identifiable Content to any third party, except to the extent: (a) Customer makes its Content publicly available, (b) as necessary for Vendor to provide, or obtain third-party supplier support for, the Services or to provide information requested by Customer, or (c) as specifically authorized by Customer in writing. Vendor's obligation to protect Content from unauthorized use, access, or disclosure is: (i) to provide the Security Services specifically set forth in this Agreement and (ii) maintain and enforce the then-current standard Vendor security policies and standards applicable to the Services as practiced at the service locations from which Vendor is providing the Services to Customer.

The obligations in this Section shall not apply to the recipient of Confidential Information and/or Vendor with respect to Content to the extent disclosure of Confidential Information or Content is required to comply with laws or respond to requests by a regulatory or judicial body and/or as otherwise required for legal process. In the event that any such disclosure is required, the recipient, and/or Vendor with respect to Content, reserves the right to charge the other party on a time-and-materials basis for recipient's/Vendor's reasonable efforts related to its compliance and response, including, if applicable, reasonable attorney's fees.

8. Term, termination, and suspension

8.1 Term

The Effective Date will be, and this Agreement shall begin, on the date the Customer creates their account and approves this Agreement and shall continue until terminated by either party under Section 8.2.

8.2 Termination

Unless both you and Protiv expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, with or without cause, without explanation, upon thirty (30) days written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to help@protiv.com.

When an account is terminated, the full license fees for active Users, as defined under Section 6, in that final calendar month, will be due on the normal billing date for that period. As an example, for clarification, if the Customer provides notice of termination on the 20th of April, the termination will be effective on the 19th of May, with active User fees, if any, for the month of April due as usual on May 1st, as well as May fees being due on June 1st for the active Users during the month of May.

Without limiting Protiv's other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if:

1. you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service;
2. we suspect or become aware that you have provided false or misleading information to us;
3. we believe, in our sole discretion, that your actions may cause legal liability for you, Users, Protiv or our Affiliates; may be contrary to the interests of the Site; or may involve illicit or illegal activity; or
4. we are required to by law, legal process, or law enforcement.

If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register under a new Account without Protiv's prior written consent.

8.3 Suspension for delinquent account

Protiv reserves the right to suspend Customer's and/or User's access and/or use of the Service for any account for which any payment is due but remains unpaid after seven (7) days' notice of such delinquency. Notice will be provided to the Customer and Users at each log in. Customer agrees that Protiv shall not be liable to Customer, or to any third party, for suspension of the Service resulting from Customer's non-payment of the fees as described in this Section.

8.4 Handling of Customer and User Data in the event of termination

Customer acknowledges and agrees that following termination of this Agreement, Customer shall return all aaS Materials (except that it may retain a copy for archival purposes, or as otherwise provided in this Agreement) to Protiv, and Protiv may immediately deactivate Customer's account. Furthermore, unless otherwise agreed upon by the Parties in writing, Protiv shall remove or overwrite all applicable Identifiable Content from Protiv's systems following the effective date of termination or cancellation, in accordance with Protiv's standard procedures. Prior to any such deletion or destruction, however, Protiv shall either:

1. grant Customer reasonable access to the Service for the sole purpose of Customer retrieving Customer Data; or
2. transfer all Customer Data to other media for delivery to Customer.

Customer agrees that Protiv shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Identifiable Customer Data, provided that Protiv is in compliance with the terms of this Section. Notwithstanding the foregoing, nothing shall preclude Protiv from maintaining Identifiable Customer Data if required by law.

9. Modification, discontinuation, and maintenance

9.1 Modification to or discontinuation of the Service

Vendor reserves the right, at all times, to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled downtime, or as otherwise provided in this Agreement, Vendor shall use commercially reasonable efforts to notify Customer prior to any such modification; further, Vendor shall consider the Customer's validation needs and requirements in connection with any modification of the Service and, except as otherwise noted in Section 9.3, shall validate the Service as modified to the same extent provided in the Schedules. Customer acknowledges that Vendor reserves the right to discontinue offering the Service at the conclusion of Customer's then-current Term. Customer agrees that Vendor will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 9.

9.2 Maintenance

In order to perform maintenance, including infrastructure and application upgrades, there may be scheduled downtime. Customer shall give Vendor all practical notice possible in the event that such scheduled maintenance may conflict with its operations. Upon the receipt of such notice, the parties shall work together to attempt to find a mutually convenient time to perform such maintenance. Customer acknowledges that periodic upgrades could take several hours to complete. The time necessary to provide major releases shall not be counted in any System Availability calculations. Customer shall be apprised of software upgrades and/or patch releases to the Service; in addition, Vendor shall perform IQ validation with respect thereto. It shall be the Customer's responsibility to perform any required UAT/PQ validation.

In the event that Vendor, in its sole discretion, determines that any unscheduled maintenance is necessary, Vendor will use commercially reasonable efforts to notify Customer as soon as it becomes aware of such need.

10. Warranties

10.1 Warranty of functionality

Vendor warrants to Customer during the Term of this Agreement that the Service will comply with the material functionality described in the aaS Materials and that such functionality will be maintained in all material respects in subsequent upgrades to the Service. Customer's sole and exclusive remedy for Vendor's breach of this warranty shall be that Vendor shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in the aaS Materials within a reasonable period of time. However, Vendor shall have no obligation with respect to this warranty claim unless notified of such claim within thirty (30) days of the first material functionality problem. Further, Vendor shall have no obligation with respect to this warranty claim where any alleged nonconformity is due to User error, as reasonably determined by the parties after investigation and analysis by Vendor's Support Center. Vendor does not warrant that the Service will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.

10.2 Non-infringement warranty

Vendor warrants that it is the sole owner of and/or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, will in any way constitute an infringement or other violation of any U.S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.

11. Disclaimer of warranties

Except as otherwise stated in Section 10 above, Vendor does not represent that Customer's use of the Service will be secure, timely, uninterrupted or error-free, or that the Service will meet Customer requirements or that all errors in the Service and/or documentation will be corrected or that the system that makes the Service available will be free of viruses or other harmful components or the Service will operate in combination with other hardware, software, systems or data not provided by Vendor or the operation of the Services will be secure or that Vendor and its Third Party Vendors will be able to prevent third parties from accessing Customer Data or Customer's Confidential Information, or any errors will be corrected or any stored Customer Data will be accurate or reliable. The warranties stated in Section 10 above are the sole and exclusive warranties offered by Vendor. There are no other warranties or conditions, express or implied, including without limitation, those of merchantability or fitness for a particular purpose. Except as stated in Section 10 above, the Service is provided to Customer on an "as is" and "as available" basis, and is for commercial use only. Customer assumes all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for the Customer's purpose.

12. Limitations of liability

12.1 No consequential damages

Neither party shall be liable to the other party for exemplary, punitive, special, incidental, indirect or consequential damages including without limitation, interruption of business, lost profits, lost or corrupted data or content, lost revenue arising out of this Agreement (including without limitation the Service, the use of the Service or the inability to use Service), even if the party has been advised of the possibility of such damages.

12.2 Direct damage limitations

12.2.1 In no event shall the aggregate liability of Vendor or any Third Party Vendors arising out of or in connection with this Agreement, including any license, use, or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, tort, or otherwise, exceed the total amounts actually paid by Customer in the six (6) month period immediately preceding the event giving rise to such claim. There shall be only one aggregate liability cap under this Agreement even if there are multiple claims; each claim shall reduce the amount available in the aggregate liability cap.

12.3 Exclusions

The limitations of liability set forth in Sections 12.1 and 12.2 shall not apply with respect to: (i) damages to persons and/or tangible property occasioned by the willful misconduct or gross negligence of a party, (ii) breaches by Customer of license terms applicable to Vendor-provided software and Third Party Products as set forth in Section 2 above, (iii) Customer's unauthorized use of Vendor's or Third Party Vendor's intellectual property, materials or assets; (iv) damages incurred as a result of a breach by a party of its obligations under Section 7.8 that result in the disclosure of Confidential Information of the other party, or (v) claims that are the subject of indemnification pursuant to Section 13 (which are subject to the limits contained therein). Damages as limited by this Section are Customer's sole and exclusive remedy if another remedy is provided and such remedy is deemed to fail of its essential purpose.

13. Indemnification

13.1 Personal injury and property damage

Each party (the "Indemnifying Party") agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors, and assigns (each an "Indemnified Party"), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities, and expenses including without limitation reasonable legal fees and expenses paid to or for the benefit of a User, affiliated or unaffiliated third party (collectively, "Losses") arising from or in connection with any such claim for: (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss, or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party.

13.2 Infringement

Vendor will indemnify, defend, and hold harmless Customer for Losses Customer incurs as a direct result of any unaffiliated third party claim based on any claim that the Service infringes any U.S. copyright, trademark, or trade secret, except to the extent resulting from (i) Customer's modification of the Service or combination by Customer of the Services with other products or services if the Service would not have been infringing but for such combination or modification, (ii) Customer's use of the Service in a manner not authorized herein or for which it was not designed, (iii) Customer's failure to use an updated non-infringing version of the applicable intellectual property to the extent Customer was notified that the update cured an infringement, (iv) changes to the Service made by Vendor at the direction of the Customer, or (v) Customer Data. If any item for which Vendor has an indemnification obligation under this Section becomes, or in Vendor's reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Vendor will, in addition to indemnifying Customer as provided in this Section, promptly take the following actions, at no additional charge to Customer, in the listed order of priority: (a) secure the right to continue using the item, or (b) replace or modify the item to make it non-infringing. If neither of such actions can be accomplished by Vendor using commercially reasonable efforts, and only in such event, Vendor will remove the item from the Service and the applicable Service fee will be equitably adjusted to reflect such removal. This Section 13.2 states Customer's sole and exclusive remedy for Vendor's infringement or misappropriation of intellectual property of a third party.

13.3 Customer's indemnity

Customer shall defend and indemnify Vendor and its Third Party Vendors against any and all Losses incurred by Vendor and its Third Party Vendors arising out of or in connection with a claim by a third party (i) alleging that the Customer Data or the Customer Trademarks, or any use thereof, infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Customer's breach of Sections 7.5 and 7.8.

Customer further shall indemnify and hold harmless Vendor and its respective trustees, directors, officers, employees and agents, representatives, successors, and assigns, to the fullest extent allowable by law, from and against all claims, damage, loss and liability, including costs and expenses, legal and otherwise, with respect to any and all claims arising from any of Customer's users (including, without limitation, Customer's employees) related to or arising from any Customer's or Customer's end user's use of the Services. Such claims include, but are not limited to, any and all claims in any way related to or arising from the employment or contractual relationship between Customer and its end users (including, without limitation, employees and contractors).

Customer expressly agrees that Vendor may pursue claims for contribution and indemnification against Customer in connection with any claims asserted by Customer's end users against Vendor in any way related to or arising from the employment or contractual relationship between Customer and its end users (including, without limitation, employees and contractors).

13.4 Indemnification procedures

The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party's failure to provide notification shall not affect the indemnifying party's indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party's ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying party shall promptly reimburse the indemnified party for all such costs and expenses.

14. Notices

Except as otherwise provided in Sections 3 and 7.4 above, any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, (c) sent by overnight courier, or (d) by email whose receipt is acknowledged by an officer of the receiving Party.

If to Vendor, a notice shall be forwarded to Protiv, Inc., at 525 Washington Blvd, 3rd Floor, Jersey City, NJ 07310, Attn. General Counsel, and if to Customer, a notice shall be forwarded to Customer at the address provided on the signature page herein. Notices shall be considered to have been given at the time of actual delivery in person, five business days after posting if by mail, one business day if by overnight courier service, or upon receipt of machine confirmation of successful transmission by facsimile or email as described herein.

15. Survival

The following provisions shall survive any termination of this Agreement: Sections 5, 7.8, 11, 12, 13, 14, 15, and 21.

16. No assignment

Customer may not assign this Agreement without the prior written approval of Protiv. Any purported assignment in violation of this section shall be void.

17. U.S. Government restricted rights

Any use of the Service by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph I(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs I(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.

18. Force majeure

Neither party will be liable to the other for any failure or delay in the performance of such party's non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact.

19. Security and security policies

Vendor is not responsible for (i) unauthorized access to Customer's Content, or (ii) damages arising out of unauthorized access.

Customer acknowledges that some of the Services may be performed by Vendor or its third-party suppliers outside the country(ies) where the Services are obtained, and information pertaining to Customer's use of the Services may be incorporated into Vendor's global database(s) to assist Vendor in providing the Services.

20. Intentionally blank

21. General provisions

Any action related to this Agreement will be governed by New York law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York.

This Agreement, together with the Schedules annexed hereto, represents the parties' entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting or additional, communications. No text or information set forth on any Purchase Order Form, preprinted form, or document shall add to or vary the terms and conditions of this Agreement.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Protiv and Customer as a result of this Agreement or use of the Service. The failure of Protiv to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Protiv in writing. Protiv reserves the right to assign its right to receive and collect payments hereunder. Any rights not expressly granted herein are reserved by Protiv.

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