Be sure to carefully read and understand these Terms and Conditions (“Terms”). By accessing and using the Services (as defined below) you confirm that you have read these Terms and accept all of the terms and conditions of these Terms. If you do not agree to any of the terms and conditions set forth herein, you may not use the Services.
These Terms and each PolicyEngage proposal to which they are incorporated into (“Proposal”) collectively represent a legal agreement between you (either an individual or a single entity) (“Licensee” or “you”) and PolicyEngage, LLC, an Illinois limited liability company (“PolicyEngage”, “we” or “us”), for access to and use of PolicyEngage’s software-as-a-service and consulting offerings as described herein and as set forth in more detail in the Proposal (collectively, the “Services”), 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 through the Services (“PolicyEngage Materials”). These Terms govern any releases, revisions and/or enhancements of the Services and PolicyEngage Materials that may be furnished to the Licensee from time-to-time.
IMPORTANT NOTICE: YOUR USE OF OUR SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 9 OF THESE TERMS, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 9 OF THESE TERMS FOR MORE INFORMATION.
1. ACCESS TO OUR SERVICES.
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 purposes only and only up to the number of accounts licensed by Licensee.
PolicyEngage or its licensors exclusively own all right, title and interest in and to our Services, PolicyEngage Materials, and Feedback (defined below), including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “PolicyEngage IP”). Except as expressly provided herein, Licensee has no right, license, or authorization with respect to any of the PolicyEngage IP. Licensee shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. PolicyEngage is not transferring or granting to Licensee any right, title, or interest in or to (or granting you any license or other permissions in or to) any PolicyEngage IP. The sole exception of the foregoing reservation of rights are the limited rights granted to you to use our Services, and which shall automatically terminate upon expiration or termination of these Terms. Any unauthorized use of any PolicyEngage IP may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
PolicyEngage welcomes your comments, feedback, information, or materials regarding our Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
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, Licensee shall pay to PolicyEngage the fees set forth in the Proposal and as otherwise described in these Terms. Licensee shall pay all invoiced amounts owed to PolicyEngage within the time period established in the Proposal and as otherwise described in these Terms. In the event payments are not received by PolicyEngage when 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.
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) except as may be allowed within the functionality of the Services, 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 or gain competitive intelligence about PolicyEngage or its 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 the 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.
5. TERM AND TERMINATION.
These Terms shall commence on the date provided in the Proposal and continue until the expiration date provided in the Proposal (the “Initial Term”), unless terminated earlier as provided herein. Unless otherwise stated on an applicable Proposal, these Terms and the Proposal shall automatically renew for consecutive one (1) year periods (each a “Renewal Term”) unless either Party provides at least 60 days’ written notice prior to the expiration of the Initial Term or Renewal Term, of their intent not to renew the Proposal. 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; or (ii) PolicyEngage stops offering the Services or PolicyEngage Materials. Upon expiration or termination of these Terms, Licensee must cease all use of and destroy all copies of the Services and PolicyEngage Materials and all portions thereof. 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.
Each party represents and warrants to the other party that: (a) the execution of these Terms shall constitute a binding agreement between the parties; (b) access to and/or use of the Services or PolicyEngage Materials does not and will not constitute a breach or violation of any third party agreement to which a party is subject; and (c) the Services and PolicyEngage Materials shall not be used in a manner that violates applicable law or the rights of any third party (including any Approved Source).
You represent that you shall procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications service, necessary for you to access and use our Services (collectively, the “User Systems”). You further represent that in connection with your User Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the use of our Services and PolicyEngage Materials, and protect against any unauthorized access to or use of our Services.
POLICYENGAGE AND ITS APPROVED SOURCE (IF DIFFERENT) ARE PROVIDING THE SERVICES AND POLICYENGAGE MATERIALS TO LICENSEE SOLELY “AS IS”. EXCEPT AS PROVIDED HEREIN, POLICYENGAGE DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 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. 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.
You agree to defend, indemnify, and hold harmless PolicyEngage, our affiliates, and all of their officers, members, managers, employees, and from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with: (a) your use of our Services or PolicyEngage Materials, (b) your violation of this Agreement, (c) any content or information you provide through our Services, (d) your violation of any law or the rights of any third party, and (e) your negligence or willful misconduct. We agree to defend, indemnify, and hold harmless you, your affiliates, and all of their officers, members, managers, employees, and from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with our gross negligence or willful misconduct.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, 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, 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 THESE TERMS 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 OR POLICYENGAGE MATERIALS. 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.
9. DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS.
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.
Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to our Services or PolicyEngage Materials, these Terms, or the breach, termination, enforcement, interpretation, or validity of these Terms, including the determination of the scope or applicability of these Terms to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and PolicyEngage agree to resolve such Dispute through confidential binding arbitration as set forth below.
Binding Arbitration. If you and PolicyEngage are unable to resolve a Dispute through informal negotiations, either you or PolicyEngage may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms you and PolicyEngage may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS 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 THESE TERMS OR ANY STATEMENT OF WORK OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THESE TERMS 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 THESE TERMS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
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 licenses granted hereunder may cause PolicyEngage irreparable harm for which monetary damages may 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.
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. 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.
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, (except in connection with a merger or sale of all or substantially all of the Licensee’s assets), 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.