SaaS and Professional Services Terms and Conditions

These Terms and Conditions (“Agreement”) govern your access to and use of any of COMPLY’s SaaS and/or Professional Services offerings.

As used herein, the terms “you” and “your” refer to the legal entity represented on your Order Schedule, or any other ordering document accepted by us for your order of our Services (each an “Order Schedule”).  Further, any references to terms such as “we,” “our,” “us,” “ComplySci” and “COMPLY” will mean COMPLY Technologies unless otherwise expressly specified in the Agreement. You may not access or use our Services if you are a competitor, or for the purposes of monitoring availability, performance, or functionality, or for any other benchmarking or competitive purposes.

 

1. Definitions

1.1 “Affiliate” means any entity or individual controlling, controlled by or under common control of a Party to this Agreement, where, for the purpose of this definition, “control” means the power to direct or cause the direction of the management and policies of such entity or individual, whether by contract, through ownership of voting securities, or otherwise.

1.2 “Authorized User” means an individual officer, director, employee, contractor, Affiliate, or other third party whose trading, gifting, donation and/or other activity you or your Affiliate tracks or is required to track, by policy, or applicable law.

1.3 “Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware,” “adware,” or similar harmful code that damages, halts, disables, or interferes with, or provides unauthorized access to the Services or the system, network, or infrastructure upon or within which the Services are stored or installed.

1.4 “Order Schedule” means the document used to order any COMPLY brand standard SaaS and/or Professional Services. The Parties may, from time to time, enter into one or more Order Schedules which shall be governed by this Agreement.  In the event of a conflict between the terms of this Agreement and an Order Schedule, the terms of the Order Schedule shall prevail.

1.5 “Parties” means you and us as defined above.

1.6 “Services” means any standard, commercially available COMPLY brand SaaS and/or Professional Services described in an Order Schedule or other similar form attached hereto including, without limitation, any databases, data, and information feeds, contained or distributed therein. For the avoidance of doubt, any COMPLY brand consulting services including, without limitation, any registration, audit, managed or other similar services offered by COMPLY shall be subject to separate consulting terms and conditions.

1.7 “User Data” means any personal information entered into the Services by or on behalf of an Authorized User (e.g., whether manually or through an electronic data feed).

 

2. Use of Our Services

2.1 We shall make available, and you shall have the right to use any Services ordered under a mutually executed Order Schedule for the Term of such Order Schedule, subject to your compliance with this Agreement.

2.2 You shall use the Services and any User Data in compliance with your internal policies and all applicable laws, rules, and regulations. You shall be responsible for (a) each Authorized User’s compliance with the terms of this Agreement, (b) ensuring the accuracy and quality of User Data, and (c) determining the appropriate level of access to the Services for each Authorized User and configuring their Authorized User IDs accordingly. Authorized Users shall maintain as personal and confidential their respective account IDs and passwords, and shall not transfer, share, or reveal either to any other person. You shall obtain from Authorized Users any consents required to access, use, and/or review their User Data in connection with any Services and shall indemnify, defend, and hold us harmless from and against any claims, damages or losses related to such Authorized User consents. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify us of any such unauthorized access or use.

2.3 Acceptable Use. You shall not (a) reverse engineer, decompile, disassemble or apply any process, technique, or procedure, or make any attempt to ascertain or derive the source code to, or otherwise access the Services, or any product or other data, materials, item, system or technology owned or licensed by us; (b) modify, interfere with, or disrupt the integrity or performance of any part of the Services or information contained therein, or (c) attempt to gain unauthorized access to the Services and/or any related networks or systems; (d) use or permit Authorized Users to use the Services to store or transmit any infringing, libelous or otherwise unlawful or tortious material; (e) use or permit Authorized Users to use the Services to store or transmit any Malicious Code; (f) sell, resell, rent, lease, distribute, or otherwise use the Services (in whole or in part) for the benefit of a third party or permit any Authorized User to do so; (g) use any web crawlers, robots or other computer programs, applications or techniques to extract content from the Services; or (h) use or permit Authorized Users to use the Services in a manner that exceeds any additional restrictions or limitations described in an applicable Order Schedule.

2.4 In addition to any other rights and remedies available, in the event we reasonably suspect any violation of the terms of this Section 2, we may suspend the Services and/or disable any relevant User ID’s access to, or use of, the Services upon notice to you, and the Parties shall cooperate with one another in an effort to identify and resolve any such violation.

2.5 You acknowledges that neither we nor any of our Affiliates is a consumer reporting agency as defined by the Fair Credit Reporting Act, and you must not use any of the information, data or other content made available to you through the Services (“Content”) to determine a consumer’s eligibility for: (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit.  You must not use the Content in connection with a credit valuation as an investor or servicer or a business transaction that is initiated by a consumer. You shall indemnify, defend, and hold us harmless from and against any claims, damages or losses related to any actual or alleged violation of the foregoing.

 

3. Term and Termination

3.1 Term. Except as otherwise stated in an Order Schedule, the initial term of any Services shall be three (3) years from the effective date of the Order Schedule pursuant to which such Services were purchased (“Initial Term”), and such Order Schedule will automatically renew for additional three (3) year periods (each a “Renewal Term”), unless: (a) either Party gives the other Party at least ninety (90) days’ advance written notice of its intent not to renew such Order Schedule; or (b) this Agreement and/or the Order Schedule is terminated as otherwise provided herein.

3.2 Termination for Material Breach. Either Party may terminate this Agreement if the other Party has committed a material breach of the Agreement and has failed to cure such breach within thirty (30) days of receiving written notice of such breach, or, for non-payment of Fees due hereunder, within seven (7) days of receiving written notice of such breach.

3.3 Termination for Insolvency. Either party may terminate this Agreement upon notice, if the other Party: (a) is declared insolvent by a court of competent jurisdiction, (b) undergoes any procedure for the suspension of payment, (c) makes a general assignment for the benefit of creditors; or (d) files or has a petition for bankruptcy, reorganization, dissolution, or liquidation filed against it.

3.4 Effects of Termination. Upon the termination of this Agreement and/or any Order Schedule: (a) your rights of and your Authorized Users’ to access and use applicable Services shall cease immediately; (b) we may deactivate the Master ID and User IDs or otherwise block your access and your Authorized Users’ access to the Services; and (c) any unpaid Fees (as hereinafter defined) owed to us under this Agreement and/or the applicable Order Schedule shall become immediately due and remitted by you to us.  You shall be responsible for exporting any and all Confidential Information and/or User Data stored in the Services prior to the effective date of any termination of Services.

 

4. Payment

4.1 Timing. You will remit payment of the Fees (as hereinafter defined) in an Order Schedule upon execution. All subsequent invoices shall be paid by you within thirty (30) days of the date of an invoice from us.

4.2 Fees. Upon execution of an Order Schedule by the Parties, we shall invoice you for any fees set forth on such Order Schedule (“Fees”) for Services and Implementation to be delivered during the first year of the Term of such Order Schedule. Thereafter, we shall invoice you on or about forty-five (45) days prior to each anniversary of the effective date of such Order Schedule (“Anniversary”), for the Fees due for Services for the one (1) year period following the Anniversary. You understand that Fees for Services may increase from year to year, provided that we may not increase the annual Fees for Services in any year by more than ten percent (10%) above the Fees applicable for such Services for the immediately prior year (“Annual Fee Cap”).

4.3 Additional User Fees. Where Services on an Order Schedule are limited to an express number of Authorized Users, you agree that any access or use of such Services by more than the contracted number of Authorized Users shall be subject to your payment of additional Fees, subject to Section 12 hereunder.

4.4 Late Payments. Any invoice that remains past due for more than thirty (30) days will accrue a late payment fee calculated at a rate of the lower of 1.5% of the outstanding balance per month or the maximum amount permitted by law.

4.5 Taxes. You understand that the Fees described in any Order Schedule are exclusive of any taxes, levies, duties, or other governmental assessments of any nature including, but not limited to value added, sales, use, excise, and withholding taxes, assessable by any foreign, federal, state, or local jurisdiction (“Taxes”).  You are responsible for the payment of any Taxes arising out of or otherwise related to your receipt and use of the Services, other than taxes relating to our income. We shall invoice you for any Taxes we are authorized or required to collect related to the Services unless you provide a valid tax exemption certificate for the appropriate taxing authority.

 

5. Data Privacy and Security

5.1 Our Data Privacy and Security. Subject to applicable data privacy laws, our Privacy Policy (currently located at https://www.complysci.com/privacy-policy), and the Data Processing and Data Security Exhibit (currently located at https://www.complysci.com/dpasecurity-exhibit) both of which are hereby incorporated by this reference, we shall deploy commercially reasonable safeguards to protect and secure any from destruction, loss, alteration, or misappropriation any User Data stored within our Services.  The specific methods used may vary from time to time, and we do not represent or warrant that such security measures will be infallible.

5.2 Security Incidents. In the event of any unauthorized and/or unlawful access, use, disclosure, destruction, or loss of User Data stored in our systems used by you in accordance with the terms of this Agreement (a “Security Incident”), we will cooperate with you to resolve same by using commercially reasonable efforts, where appropriate, to: (a) notify the your Compliance Contact (as identified in an applicable Order Schedule) by email or other means; (b) recover any lost or destroyed User Data; (c) cooperate with federal or state agencies investigating a Security Incident; and (d) modify the Services to reasonably prevent a recurrence of such Security Incident.

5.3 Remediation by Us. We will maintain control of any Remediation Efforts (as defined hereunder) arising in relation to the Services under this Agreement. To the extent a Security Incident was not a result of the a material breach of this Agreement by the you, or the fraud, negligence, or willful misconduct of the you, then we will pay for efforts to remediate the Security Incident, including: (a) conducting necessary and appropriate investigation to determine if User Data was the subject of a Security Incident; (b)  delivering legal notices to affected individuals or other third parties as may be required by laws; and (c)  cooperating with and responding to regulatory inquiries and other similar governmental actions, if applicable (collectively “Remediation Efforts”).

5.4 Remediation by You. To the extent a Security Incident was not a result of a material breach of this Agreement by us, or the fraud, negligence, or willful misconduct of us, then you will pay for Remediation Efforts.

5.5 Security Compliance. You and your Authorized Users shall comply with any access and security requirements related to the Services, and shall not attempt to in any way circumvent, work around, interfere, block, or avoid our security precautions.

 

6. Confidential Information

6.1 For the purposes of this Agreement, “Confidential Information” means all information disclosed by or to which access is given by a Party (each a “Disclosing Party”) to the other Party (each a “Receiving Party”) that is marked or otherwise identified as confidential, or which a reasonable person would understand to be confidential given the nature of the information, regardless of whether such information is disclosed orally, visually, and/or in writing. Confidential Information includes, but is not limited to, this Agreement, the Services, the Fees, our databases, and any residuals, transactional data, patents, copyrights, trade secrets, and other proprietary rights in or related to any Services, programs, applications, and information owned, developed, created, or licensed by us. Confidential Information of either Party shall also include, but not be limited to, any financial information, business and marketing plans, technology and technical information, formulas and algorithms, and any product plans and designs but, for the avoidance of doubt, excludes User Data, which shall be protected and secured subject to the terms of Section 5 (Data Privacy and Security).  Confidential Information shall further not include any information that: (a) the Receiving Party independently develops; (b) was lawfully known by the Receiving Party prior to being disclosed by the Disclosing Party without an obligation of confidentiality to any third party; or (c) becomes available to the public other than as a result of a Party’s breach of this Agreement.

6.2 Protection of Confidential Information. The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information from unauthorized dissemination and use the same degree of care it uses to protect its own Confidential Information but, in any case, no less than reasonable care; (b) use the Disclosing Party’s Confidential Information solely to fulfill its obligations under this Agreement; (c) limit disclosure of the Disclosing Party’s Confidential Information to those of its affiliates, employees, contractors and representatives who: (i) have a need to access such Confidential Information in connection with the Receiving Party’s obligations under this Agreement, and (ii) are subject to written obligations of confidentiality at least as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement.  Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information if it is compelled to do so by law, provided it gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) in order to allow the Disclosing Party an opportunity to prevent such disclosure.

6.3 Injunctive Relief. The Parties acknowledge that any unauthorized use or disclosure of a Disclosing Party’s Confidential Information may cause the Disclosing Party to suffer irreparable harm, for which damages would not be adequate. Accordingly, the Parties agree that the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction to prevent the Receiving Party from breaching or continuing to breach its obligations under this Section 6.  Any such injunctive relief shall be in addition to any other remedies at law or equity available to Disclosing Party.

6.4 Destruction or Return of Confidential Information. Upon termination of this Agreement, each Receiving Party shall destroy or return to the Disclosing Party all the Disclosing Party’s Confidential Information, provided, the Receiving Party shall have the right to maintain a copy of the Disclosing Party’s Confidential Information in order to comply with its obligations under this Agreement and applicable laws and record retention policies.

 

7. Proprietary Rights

7.1 Rights in Your Confidential Information and User Data. Except for the limited rights set forth hereunder, you retain all right, title, and ownership of your Confidential Information, and Authorized Users retain all right, title, and ownership of their User Data.

7.2 Rights in the Services. You understand that we are in the business of providing our standard compliance related “software-as-a-service” products and related professional services to customers. Accordingly, we and our licensors reserve any and all right, title, license and ownership of any copyrights, patents, trademarks, trade secrets and other intellectual property rights in and to the Services themselves including, without limitation, any configuration, modification, adaptation, improvement, development, customization, or derivative thereof, and any data and information contained or otherwise distributed through the Services (other than, for the avoidance of doubt, User Data).

7.3 Collection and Use of Data. We may, subject to our Privacy Policy and applicable data privacy laws, collect and use anonymized information and data (including metadata) related to you and your Authorized Users’ use of the Services for the purposes of: (a) performing, evaluating, enhancing, and improving Services; and (b) testing and developing new Services.

7.4 Third Party Terms. You understand and agrees that certain data used by us in performing the Services may be licensed from third parties and that such data is subject to the Mandatory Third-Party Terms and Conditions (currently located at https://www.complysci.com/third-party-terms-conditions/).

 

8. Warranties

8.1 Services Warranty. We warrant that the Services shall be delivered to you in a professional and workmanlike manner.

8.2 EXCEPT AS SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW INCLUDING, WITHOUT LIMITATION, WARRANTIES OR OTHER TERMS AS TO SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. COMPLYSCI DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE DELIVERED FREE OF ANY INACCURACIES, INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (“FAULTS”), OR THAT ALL FAULTS WILL BE CORRECTED. COMPLYSCI SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM ANY SUCH FAULTS.

8.3 WHERE DATA IS ENTERED INTO THE SERVICES BY CUSTOMER AND/OR AUTHORIZED USERS, CUSTOMER ASSUMES SOLE RESPONSIBILITY, OBLIGATION, AND RISK AS TO THE SUITABILITY AND RESULTS OBTAINED FROM USE OF THE SERVICES, AND ANY DECISIONS MADE, ADVICE GIVEN, OR ACTIONS TAKEN BY ITSELF OR THIRD PARTIES BASED ON THE INFORMATION CONTAINED IN OR GENERATED BY SUCH SERVICES.

 

9. Indemnities

9.1 Infringement. We shall indemnify, defend and hold you harmless from and against any damages awarded to a third party by a court of competent jurisdiction, settlements, and/or reasonable attorney’s fees and court costs, arising from a claim by such third party that the Services infringe such third party’s valid copyright or patent, except to the extent such claim is the result of your act or omission or your improper or unauthorized use of the Services, or use of the Services in a manner in which they were not designed to perform (collectively an “Improper Use”).

9.2 Breach of User Data. We shall indemnify, defend, and hold you harmless from and against any damages awarded to a third party by a court of competent jurisdiction, settlements, and/or reasonable attorney’s fees and court costs, arising from our material breach of our Privacy Policy and/or Processing obligations under the Data Processing and Data Security Exhibit, except to the extent such claim is the result of you act or omission or Improper Use.

9.3 Indemnity Process. The indemnities herein are subject to: (a) you promptly notifying us of any claims that might trigger our indemnification obligation; and (b) you tendering to us full control over the defense of any such claims (including the right to settle), provided we shall be responsible for any monetary obligations in a settlement and shall ensure that any settlement includes a full release and waiver of liability of you.  The you may select your counsel and participate in your own defense at your own cost.

 

10. Limitation of Liability

10.1 EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR A BREACH OF A PARTY’S INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION, NEITHER PARTY NOR ITS SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY “REPRESENTATIVES”), SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OF PROFITS, DATA, REVENUE, OR SAVINGS.

10.2 REGARDLESS OF LEGAL THEORY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, THE AGGREGATE LIABILITY OF EITHER PARTY OR THEIR REPRESENTATIVES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE ORDER SCHEDULE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEEDING SUCH CLAIM, PROVIDED THAT THIS LIMIT WILL NOT APPLY TO ANY CLAIM FOR UNPAID FEES, OR ARISING OUT OF (A) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, (B) A BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, (C) A BREACH OF PARAGRAPH 6.2 (PROTECTION OF CONFIDENTIAL INFORMATION), OR  (D) ANY BREACH OF AND/OR OBLIGATIONS UNDER PARAGRAPHS 2.2, 2.3, 2.5, 11.3 (CUSTOMER’S USE OF SERVICES), AND 13.1 (CUSTOMER’S CONSULTANTS AND PROCESSORS).

10.3 For the avoidance of doubt, you will be liable to us for any and all losses, damages and the like resulting from any breach of this Agreement by an Authorized User.

 

11. Miscellaneous

11.1 Entire Agreement. Once executed by the Parties, this Agreement, and any Order Schedule(s) incorporated herein by reference shall constitute the entire agreement between us and you with respect to the Services, and shall supersede and prevail over all other agreements, proposals, and representations, written or oral, regarding the subject matter hereof. Except as expressly agreed hereunder, this Agreement may only be modified by mutual written agreement of the Parties.

11.2 No Advice. You understand and agree that we do not provide financial, legal, or other professional advice or services. You should seek the services of a competent profession if financial, legal, or other professional advice is required. You understand and agree that the Services are provided for informational purposes only and that, neither the Services nor anything posted or generated therein shall be construed as legal, tax, financial or other advice, or as a solicitation, recommendation, endorsement or offer by us, our officers, employees, subsidiaries, or affiliates to buy or sell any security or other financial instrument.

11.3 Third Parties. For the avoidance of doubt, there are no third party beneficiaries to this Agreement (including Authorized Users). To the extent any Authorized Users are employees of Affiliates, contractors, or other third parties are authorized to use the Services as Authorized Users (collectively, “Other Entities”), you shall ensure that any such Authorized Users comply with this Agreement and shall be responsible for any non-compliance by such Authorized Users. In addition, all claims under this Agreement must be brought by you and you will indemnify us against claims by any Other Entities.

11.4 Waiver. The waiver by a Party of any right or failure or delay to seek a remedy in given instance will not affect that Party’s rights or ability to seek a remedy in other instances.

11.5 Notice. Except as otherwise expressly set forth hereunder, all notices, permissions and approvals must be in writing sent to the Parties’ respective addresses first set forth above, and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day, if sent by USPS Certified Mail; or (c) the first business day, if sent by email, provided a copy is also sent via reputable overnight courier.  For us, all notices shall be sent to the attention of the Chief Financial Officer, with a copy to the General Counsel.

11.6 Assignment. Neither Party may assign its rights under this Agreement without prior written consent from the other Party, which will not be unreasonably withheld or delayed, provided, however, that no such consent is necessary for either party to assign its rights under this Agreement in, or as part of any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or voting shares.  Any assignment in contravention of the foregoing shall be deemed null and void. Any assignment permitted hereunder shall bind and inure to the benefit of the Parties, their respective successors, and assigns.

11.7 Export Compliance. You understand that the Services and/or information contained therein may be of a controlled nature that is subject to export laws and regulations, including those of the U.S. Export Administration, U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and any Executive Orders (“Export Controls”). You represent that you are not on any denied-party list and further agrees that it will not export, directly or indirectly, re-export, divert, or transfer the Services or any materials, items or technology relating to the Services, us or our suppliers to any destination, company or person restricted or prohibited by Export Controls. As defined in FAR section 2.101, the services and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11.8 Enforceability and Survival. If any provision of this Agreement is deemed illegal or unenforceable, that provision may be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law or, if impractical, severed and the remainder of this Agreement will remain in full force and effect. Sections 4 (Payment), 5 (Data Privacy and Security), 6 (Confidential Information), 10 (Limitation of Liability) and 11 (Miscellaneous) will survive the termination or expiration of this Agreement.

11.9 Independent Contractor. We are and will at all times act as an independent contractor with respect to you.  Nothing in this Agreement will create or constitute any employment, agency, partnership, or joint venture arrangement by or between the parties.

11.10 Publicity. We may use your name and logo in any media to identify you as a customer.

11.11 Force Majeure. Neither Party will be responsible for any failure to perform under this Agreement (other than a Party’s payment obligations), if it is prevented or delayed in performing its obligations by an strikes, riots, acts of war, terrorism, earthquakes, floods, fire or other natural disasters, or comparable events outside of a Party’s reasonable control (each a “Force Majeure Event”); provided the Party subject to the Force Majeure event notifies the other Party and uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event.

11.12 Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the state of New York, excluding its conflicts of law principles. The jurisdiction and venue for any legal proceeding relating to this Agreement will be the state or federal courts in New York County, New York, and each party waives any objection of forum non-conveniens or other objection to such venue.  The prevailing party in any action shall be entitled to reasonable attorney’s fees and court costs in enforcing its rights hereunder.

 

12. Authorized User and Account Growth

12.1 Organic and Inorganic Growth. We understand that you may require additional Authorized Users, Accounts, monitored individuals, and/or monitored entities (as applicable, based on the Services subscribed hereunder) during the Term of an Order Schedule. Accordingly, (i) at the end of each contract quarter (“Organic Growth”), and (ii) promptly following the closing of any acquisition, merger, change of control (by operation of law or otherwise), joint venture, or other combination of you with a third party (including an Affiliate) (“Inorganic Growth”) (collectively, “Growth”), We will determine the number of (i) Authorized Users actually accessing, using, or otherwise requiring use of any Services, and/or (ii) Accounts processed through the applicable Services.  In the event we should determine that, due to Growth, the actual number of Authorized Users exceeds the number of Authorized Users and/or Accounts for which you were charged during the previous contract quarter (“Growth Users” or “Growth Accounts,” as applicable), the total Annual Fees shall be increased by an amount equal to the number of Growth Users and/or Growth Accounts identified by us multiplied by the applicable individual Authorized User and/or Account fee, as adjusted in accordance with Section 4.2 (“Growth Annual Fees”). For the avoidance of doubt, the number of Authorized Users, Accounts, and Annual Fees (including any Growth Annual Fees) will not be adjusted downward during a contract year if the number of Authorized Users and/or Accounts should decrease during such contract year for any reason.

12.2 Growth Invoicing and Payment. We will invoice you and you will promptly remit payment for such Growth Annual Fees. Growth License Fees will be invoiced prospectively, effective as of the contract quarter during which such Growth Users and/or Growth Accounts were identified, and pro-rated for any partial contract year, and then annually thereafter for the remainder of the Term. Subject to your payment of such Growth Annual Fees, the total number of Authorized Users and/or Accounts authorized under this Order Schedule shall be increased by the number of Growth Users and/or Growth Accounts, as applicable.

 

13. Your Consultants and Processors

13.1 We acknowledge that you have or may enter into a service agreement with a third party (the “Processor”) pursuant to which the Processor provides consulting services related to information and data contained in the Services and which may require Processor to access the Services. Subject to Processor’s and your compliance with the terms and conditions of this Agreement, we hereby grant to you permission to appoint one or more Processors to access the Services for the sole purpose of supporting your use of the Services; provided that (i) the Processor agrees in writing to comply with the terms and conditions of this Agreement, (ii) you shall ensure Processor’s compliance with the provisions of the Agreement, and (iii) you shall report to us at least annually or upon our request the identity of any Processor(s) accessing the Services.  We shall have the right to review your written agreements with Processors for the sole and limited purpose of auditing your compliance with the terms of this Section 13. You agree that nothing contained herein is or shall be construed as a grant of any rights to Processor and in no event shall the Processor use the Services for Processor’s internal business operations, the operations of any third party, or any benchmarking or competitive advantage. You shall be responsible for the acts and omissions of Processor in relation to the Services and shall defend, hold harmless, and indemnify us from any loss liability, damage, or expense (including reasonable attorney’s fees) arising out of such Processor’s access to the Services.

Last Updated: February 22, 2023

Previous Update Superseded: December 4, 2019