Be sure to carefully read and understand all of the rights and restrictions described in these Terms and Conditions (“Terms”). Accessing and using the Services (as defined below) is a symbol of your confirmation that you accept the terms and conditions of these Terms.
These Terms represent a legal agreement between you (either an individual or a single entity) (“Licensee”) and PolicyEngage, LLC, an Illinois limited liability company (“PolicyEngage”), for access to and use of PolicyEngage’s software-as-a-service offerings (the “Services”, which shall be deemed to include the Consulting Services for purposes of these Terms), in which these Services are being provided to Licensee directly by PolicyEngage or by an authorized reseller (collectively, “Approved Source”) pursuant to these Terms, and may include associated media, printed materials and any online or electronic documentation made available by PolicyEngage (“PolicyEngage Materials”) together with the Services. These Terms govern any releases, revisions and/or enhancements of the Services and PolicyEngage Materials that may be furnished to the Licensee.
The Services and PolicyEngage Materials are the sole and exclusive property of PolicyEngage or its licensors and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Services and PolicyEngage Materials are licensed, not sold, to the Licensee.
1. GRANT OF LIMITED LICENSE.
Subject to the terms and conditions of these Terms, PolicyEngage hereby grants to Licensee a limited, revocable, non-transferable, non-sublicensable and non-exclusive right to use the Services for Licensee’s internal business purposes or non-commercial personal purposes only and only up to the number of accounts licensed by Licensee (the “License”). Any activity contemplated by the Licensee shall be strictly in accordance with and subject to PolicyEngage’s applicable user documentation and specifications. The Services and PolicyEngage Materials will include updates thereto that PolicyEngage provides to Licensee.
2. CONSULTING SERVICES.
To the extent requested by Licensee, and to the extent agreed to by PolicyEngage, PolicyEngage shall provide or make available to Licensee certain qualified advice, consultation, and/or knowledge management in connection with the Services (the “Consulting Services”, which shall be deemed part of the “Services” for purposes of these Terms). PolicyEngage agrees to provide the Consulting Services in accordance with the terms and conditions set forth herein and any other written agreement of the parties expressly addressing Licensee’s use of the Consulting Services. PolicyEngage agrees to provide the Consulting Services in a professional, workmanlike manner using individuals with industry standard skill, expertise, and experience. Licensee acknowledges and agrees that the Consulting Services are designed to augment and support Licensee’s use of the Services and related PolicyEngage Materials only. The Consulting Services are not intended as a substitute for, nor do the Consulting Services replace, the independent judgement and professional decision-making process of Licensee and its employees and agents. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that PolicyEngage shall not be responsible for any of the results, outcomes, acts, or omissions of Licensee in connection with Licensee’s use or receipt of the Consulting Services. Licensee further acknowledges and agrees that the Consulting Services are not intended to be error-free in the identification, tracking, or knowledge management of any data or information included within the PolicyEngage Materials, whether currently or hereafter in existence. PolicyEngage therefore does not guarantee the Consulting Services or the accuracy or results thereof and shall not, under any circumstance, be responsible or liable for, and Licensee hereby agrees to fully release PolicyEngage from, any and all liability arising from or related to (i) PolicyEngage’s provision of Consulting Services or (ii) Licensee’s use of the Consulting Services or distribution of all or part of any information included within the Consulting Services. Nothing stated, posted, or available through the Consulting Services is intended to be, and must not be taken to be, the practice of law in any form. No attorney-client relationship is created by using or receiving the Consulting Services.
In consideration of the provision of the Services by PolicyEngage and the rights granted to Licensee under these Terms, Licensee shall pay to PolicyEngage the fees set forth in PolicyEngage’s proposal and as otherwise described in these Terms. Licensee shall pay all invoiced amounts owed to PolicyEngage within the time period established in these Terms. In the event payments are not received by PolicyEngage within 30 days after becoming due, PolicyEngage may charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid and suspend performance for all Services until payment has been made in full.
This is a license, not a transfer of title, to the Services and PolicyEngage Materials, and PolicyEngage retains title and ownership of all Services and PolicyEngage Materials. Licensee acknowledges that the Services and PolicyEngage Materials contain trade secrets of PolicyEngage (and/or its suppliers or licensors), including, but not limited to, the specific internal design and structure of individual programs and associated interface information. Licensee shall not, and shall not permit any other party to, access or use the Services or PolicyEngage Materials except as explicitly permitted in these Terms. Without limiting the generality of the foregoing, Licensee shall not (except as expressly permitted in these Terms): (i) assign the same user name/password combination to more than one individual; (ii) sell, transfer, rent, lease, lend, copy, print, display, publish, modify, translate, sublicense, distribute, redistribute, syndicate, time-share, assign, electronically transmit or receive, or otherwise allow access to the Services or PolicyEngage Materials, in whole or in part, to any other party; (iii) edit, modify, or create any derivative works, or improvements of all or any part of the Services or PolicyEngage Materials; (iv) provide use of the Services or PolicyEngage Materials on a service bureau, rental, managed services basis, permit other individuals or entities to create Internet “links” to the Services or PolicyEngage Materials or “frame” or “mirror” the Services or PolicyEngage Materials on any other server, wireless, or Internet-based device, or otherwise make available to a third party any token, key, password, user name, access credentials, or other login credentials to the Services or PolicyEngage Materials; (v) decipher, analyze, translate, decompile, disassemble or reverse engineer the Services or PolicyEngage Materials, or otherwise attempt to derive source code, trade secrets, or know-how in or underlying any Services or PolicyEngage Materials (or any portion thereof); (vi) access the Services or PolicyEngage Materials to build a similar or competitive product or service; (vii) bypass or breach any security device or protection used by the Services or PolicyEngage Materials; (viii) input, upload, transmit, or otherwise provide to or through the Services or PolicyEngage Materials any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code; (ix) remove, delete, alter, or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, patent, intellectual property rights, or proprietary rights notices from any Services or PolicyEngage Materials, including any copy thereof; (x) access or use the Services or PolicyEngage Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, that violates the privacy rights of any third party, or that violates any applicable law; or (xi) use any Services or PolicyEngage Materials, or allow the transfer, transmission, export, or re-export of any Services or PolicyEngage Materials (or any portion thereof) or any technical data (A) in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency or (B) in any case into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has embargoed or restricted the export of goods or services, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
Without prejudice to any other rights, PolicyEngage may terminate these Terms if: (i) Licensee fails to comply with any of the terms and conditions of these Terms; (ii) PolicyEngage stops offering the Services or PolicyEngage Materials; or (iii) PolicyEngage provides Licensee with 30 days’ prior written notice and such termination is for PolicyEngage’s convenience (with or without cause). If these Terms terminate, Licensee must cease all use of and destroy all copies of the Services or PolicyEngage Materials and all portions thereof and so certify to PolicyEngage. Any right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms (including, but not limited to, all payment obligations, which arose prior to the effective date of such expiration or termination) will survive any expiration or termination of these Terms.
POLICYENGAGE AND ITS APPROVED SOURCE (IF DIFFERENT) ARE PROVIDING THE SERVICES AND POLICYENGAGE MATERIALS TO LICENSEE SOLELY “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. POLICYENGAGE DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, POLICYENGAGE SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND POLICYENGAGE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR POLICYENGAGE MATERIALS (OR ANY RESULTS FROM THE USE THEREOF) WILL MEET LICENSEE’S OR ANY OTHER PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY BROWSER, SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE SERVICES OR POLICYENGAGE MATERIALS ARE ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POLICYENGAGE, ITS REPRESENTATIVES, ITS AGENTS, OR ITS EMPLOYEES WILL CREATE A WARRANTY AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ANY USE OF THE SERVICES OR POLICYENGAGE MATERIALS IS AT LICENSEE’S OWN RISK.
ANY WARRANTY EXTENDS ONLY FOR THE EARLIER OF EITHER: (I) 30 DAYS FROM THE DELIVERY OF THE SERVICES; OR (II) AS PROVIDED BY LAW.
ALL THIRD PARTY PRODUCTS, SERVICES, AND MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATIONS OR WARRANTIES OF OR CONCERNING ANY THIRD PARTY PRODUCTS, SERVICES, OR MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THOSE PRODUCTS, SERVICES, AND MATERIALS.
To the extent permitted by applicable law, Licensee shall defend, indemnify and hold harmless PolicyEngage, its affiliates, parents, subsidiaries, and each of their respective officers, directors, employees, agents, distributors, customers, successors, and assigns (each, a “PolicyEngage Indemnitee”) from and against any liability, claim, demand, suit, or cause of action, regardless of whether meritorious, settlement, payment, loss, disbursement, cost and expense, interest, award, judgment, damages (including punitive damages), lien, fine, fee, penalty, and any related litigation expense (including, but not limited to, reasonable attorneys’ fees) (“Loss”) incurred by any PolicyEngage Indemnitee in connection with any claim, suit, action, or proceeding (“Action”) arising from, in connection with, or resulting from: (i) Licensee’s licensing of, access to, and use of the Services or PolicyEngage Materials; (ii) Licensee’s obligations to any third party provider of any materials, products, services, or systems not provided by PolicyEngage; (iii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Licensee, including PolicyEngage’s compliance with any specifications or directions provided by or on behalf of Licensee; (iv) Licensee’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (v) any labor or employment matters related, directly or indirectly, to Licensee’s employees and representatives (if any); and/or (vi) any acts or omissions by Licensee or any third party acting on Licensee’s behalf with respect to this Agreement. Licensee’s duty to defend, indemnify, and hold harmless against such Loss extends to any Loss that may be caused or alleged to be caused in part by the negligence of PolicyEngage and other persons indemnified under this Agreement, to the fullest extent permitted by applicable law.
8. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS TO THE CONTRARY, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL POLICYENGAGE, ITS AFFILIATES, OR THEIR RESPECTIVE MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE LICENSEE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF SAVINGS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, LOSS OF GOODWILL, LOSS OF RIGHTS, OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR THESE TERMS TO THE CONTRARY, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL POLICYENGAGE, ITS AFFILIATES, OR THEIR RESPECTIVE MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE LICENSEE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES PAID BY LICENSEE TO POLICYENGAGE AND/OR THE APPROVED SOURCE (IF DIFFERENT) FOR USE OF THE SERVICES. THE FOREGOING LIMITATION APPLIES REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Licensee acknowledges and agrees that PolicyEngage has set its prices and entered into these Terms in reliance upon the disclaimer of warranties in Section 6, the Licensee’s indemnification obligations in Section 7, and the limitations of liability in this Section 8; that all of the foregoing reflect the allocation of risks between the parties; and that all of the foregoing form an essential basis of the bargain between parties.
Government Users. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Services or PolicyEngage Materials provided by PolicyEngage are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of these Terms and shall be prohibited except to the extent expressly permitted by the terms of these Terms.
Independent Contractor. The relationship between Licensee and PolicyEngage is that of an independent contractor. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Licensee shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to these Terms or otherwise use PolicyEngage’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship.
Right to Preliminary and Injunctive Relief; Remedies. Licensee acknowledges and agrees that a breach or threatened breach by it of any of its obligations hereunder involving the intellectual property rights or confidential information of PolicyEngage, Licensee’s compliance with applicable laws, or by Licensee exceeding the scope of the License would cause PolicyEngage irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, PolicyEngage will be entitled to seek equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The rights and remedies of the parties set forth in these Terms are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, by statute or otherwise, except in those cases where these Terms specifies that a particular remedy is sole or exclusive.
Governing Law; Venue; Attorney's Fees. These Terms and the transactions contemplated hereunder shall be governed, interpreted, construed, enforced, and performed in accordance with the laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Missouri. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to these Terms. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in state court located in the State of Missouri in the County of St. Louis or the United States District Court for the Eastern District of Missouri, and each party irrevocably submits to the exclusive jurisdiction of such courts and unconditionally waive any objection to the laying of venue in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and related litigation expenses from the non-prevailing party.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Interpretation. Headings contained in these Terms are for reference purposes only and are not to affect the meaning or interpretation of these Terms. As used herein, (i) the words “include” and any other forms of “include” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to these Terms as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (v) a derivative of a defined term shall have the meaning appropriate to the context of its use; and (vi) unless the context otherwise requires, references to an agreement, instrument or other document or applicable law means such as amended, supplemented and modified from time-to-time. No amendment to or modification of these Terms is effective unless it is in writing, identified as an amendment, and signed by an authorized representative of each party. No waiver or consent by any party hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving or consenting. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of these Terms is held invalid or unenforceable in any jurisdiction, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and such invalidity or unenforceability shall not affect any other term or provision hereof.
Entire Agreement. These Terms, including all documents incorporated by reference, set forth the entire, final, complete, and exclusive expression of the parties’ agreement on the matters contained in these Terms. All prior written and oral negotiations and agreements, and all contemporaneous oral negotiations and agreements, between the parties on the matters contained herein are expressly merged into and superseded by these Terms.
Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, including in connection with any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity), without PolicyEngage’s prior written consent. Any purported assignment, delegation or transfer in violation of this paragraph is void. PolicyEngage shall be entitled to freely assign these Terms. These Terms are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.