Terms of Service

PROTIV

SOFTWARE AS A SERVICE TERMS AND CONDITIONS

This User Agreement below became effective on March 1, 2022, and will remain in effect until a new version is published.

Protiv supplies software applications and related services, including compensation management solutions that link productivity, safety, and other KPIs to employee wages. The customer desires to use Protiv software application products and services.

Definitions

1. “aaS” is an acronym for “As A Service” and means the combined hosting and support services provided in this Agreement.

2. “aaS Materials” shall mean the written materials relating to the operation and use of the Protiv Software, including, but not limited to, user manuals, technical manuals and online help files regarding use of the Protiv Software provided as part of the Service, and any other materials prepared in connection with any Protiv Software modification, correction, or enhancement, and shall include any updated versions of aaS Materials as may be provided by Protiv from time to time (1) in the course of providing the Service; (2) as part of an online tutorials or help files provided with the Service.

3. “Cloud Hosting” refers to the provision of products and services in a hosted, virtualized environment accessible via the Internet.

4. “Protiv Software” means Protiv proprietary software applications and user interfaces made available to Customer or their Users by Protiv as part of the Service. Protiv Software may contain third-party components licensed to Protiv.

5. "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 or their Users.

6. “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.

7. "Purchase Order Form(s)" refers to a Customer document that a Customer may issue to confirm the 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.

8. “Service” shall mean the software and infrastructure in a hosted environment provided and maintained by Protiv to which Customer and their Users are being granted access under this Agreement via a website or mobile application.

9. “Third Party Products” means application software products provided by third-party vendors, including the operating system and application software with which the Protiv Software interfaces and which provides certain functionality that may be essential to the operation of the Protiv Software. For the sake of clarity, the term Third-Party Products does not refer to third-party software components, if any, incorporated into Protiv Software.

10. "User(s)" means the Customer’s employees, representatives, consultants, contractors, or agents who are added as users and visible within the Service.

11. “Identifiable” means information that can be identified to the Customer or a Customer’s User, or any other specific person or company.

1. PROVISION OF SERVICES

2. INSTALLATION/REGISTRATION

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 the following:

(i) the Protiv Terms of Service having been accepted by Customer and Users

(ii) Customer and their Users providing all data required by Protiv in order to utilize the Protiv Software

(iii) The Customer and their Users must complete any tasks required as a prerequisite for the system to be placed into production use. Examples of these types of activities are, but are not limited to, validation activities, Terms and Conditions approval, data migration, User training, system configuration, etc.

(iv) Customer providing internal infrastructure and connectivity needed to access the Services.

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

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:

(a) use the Service, including the Base Components thereof,

(b) display and print Customer and/or User Data, and

(c) 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 the 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:

(i) The maximum number of Users that the Customer authorizes to access the Service shall not exceed the number of Users licensed in a given month;

(ii) Licenses cannot be shared or used by more than one individual User;

(iii) 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;

(iv) 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;

(v) 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;

(vi) 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;

(vii) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service;

(viii) Customer acknowledges and agrees that Protiv or its Third Party Vendors shall own all rights, 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;

(ix) unauthorized use, resale, or commercial exploitation of any part of the Service or aaS Materials in any way is expressly prohibited;

(x) 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 Protivs; and

(xi) 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.

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:

(a) Identifiable Customer and User Data solely to the extent necessary to provide the Service to Customer and their Users,

(b) any trademarks that Customer provides Protiv for the purpose of including them in Customer’s interface of the Service (“Customer Trademarks”) and

(c) 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 andCustomer’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:

(a) the purpose of storing backup data in accordance with the terms of this Agreement; and,

(b) 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 copyrights, trademarks, service marks, patents, or other proprietary rights and laws may protect the content or information presented to the Customer through the Service. Except where expressly provided otherwise by Protiv, nothing in the Service, the aaS Materials, or the Agreement shall be construed to confer any license to any of Protiv’s (or its third-party manufacturer’s, author’s, developer’s, vendor’s, and service provider’s (“Third Party Vendor’s”), intellectual property rights, whether by estoppel, implication, or otherwise. Customer agrees not to display or use the Protiv marks, or the marks of any Third Party Protiv, in any manner without the owner’s express prior written permission. Protiv 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. In the first year as a customer, Protiv provides a discounted rate per User. The first year begins on the Effective Date of this Agreement as defined in Section 8.1. The First Year Discounted Service Fees will end on the 1st year anniversary of the Effective Date. For purposes of clarification, if a Customer activates a new User 6 months after the Effective Date, the new User would receive the Customer’s First Year Discounted Service Fee pricing for 6 months.

Plan Year 1

Year 2+

Payment Due Upon

At sign-up and on the monthly anniversary thereafter monthly.

Amount

$99 USD/month (up to 10 users) and $9.95 USD for each additional user TBD

The Agreement shall automatically continue on a month-to-month basis until such time as either party provides thirty (30) days' written notice to the other party of its intent to cancel the Agreement. User Fees shall be payable at sign up and on the monthly anniversary date each month 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.

Above the monthly minimum charge, any monthly recurring user charges shown above are charged for any User marked “Active” on the System or for whom there was payroll processed against a ProPay in that given 30-day period.

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 Protiv 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 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 a connection.

7.3 Email, SMS, System Messaging and Notices

Customer agrees to provide Protiv with email addresses and mobile phone numbers for Users through which the Protiv 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, acknowledgment 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 Protiv may provide any and all required legal notices to Customer through either e-mail (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 password, 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 Protiv 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 the 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.

7.6 Transmission of Data

Customers understand that the technical processing and transmission of their Electronic Communications are fundamentally necessary for the use of the Service. Customer expressly consents to Protiv’s use of Electronic Communications, including Customer data, and acknowledges and understands that their Electronic Communications will involve transmission over the internet and over various networks, only part of which may be owned and/or operated by Protiv. Customer acknowledges and understands that changes to 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 Protiv is not responsible for any Electronic Communications and/or Customer Data that are lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Protiv.

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 or User’s Confidential Information shall include, but not be limited to, Customer and Customer’s User’s 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 the 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 and Users acknowledge and agree that Protiv may disclose 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. 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 Protiv has any access to Content, Identifiable or not, in the course of providing the Services, Protiv’s entire obligation to keep Content confidential is stated in this Section below. Protiv shall not intentionally disclose Customer or Customer’s User’s Identifiable Content to any third party, except to the extent:

(a) Customer or their User makes its Content publicly available,

(b) as necessary for Protiv to provide, or obtain third-party supplier support for, the Services or to provide the information requested by Customer or their Users, or

(c) as specifically authorized by Customer in writing. Protiv’s obligation to protect Content from unauthorized use, access, or disclosure is to maintain and enforce the then-current standard Protiv security policies and standards applicable to the Services as practiced at the service locations from which Protiv is providing the Services.

The obligations in this Section shall not apply to the recipient of Confidential Information and/or Protiv 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 Protiv, with respect to Content, reserves the right to charge the other party on a time-and-materials basis for the recipient’s/Protiv’s reasonable efforts related to its compliance, 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

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) Day’s 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, Customers 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/MAINTENANCE

9.1 Modification to or Discontinuation of the Service

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

10. WARRANTIES

10.1 Warranty of Functionality

Protiv 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 Protiv’s breach of this warranty shall be that Protiv 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, Protiv shall have no obligation with respect to this warranty claim unless notified of such claim within (30) days of the first material functionality problem. Further, Protiv 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 Protiv’s Support Center. Protiv 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

Protiv 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, PROTIV DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPED 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 PROTIV OR THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT PROTIV AND ITS THIRD PARTY PROTIVS 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 PROTIV. 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 PROTIV OR ANY THIRD PARTY PROTIVS 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 PROTIV-PROVIDED SOFTWARE AND THIRD-PARTY PRODUCTS,

(III) CUSTOMER’S UNAUTHORIZED USE OF PROTIV’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 THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR

(V)CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION (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

Protiv 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 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 Protiv at the direction of the Customer; or,

(v) Customer Data. If any item for which Protiv has an indemnification obligation under this Section becomes, or in Protiv’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Protiv 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 Protiv using commercially reasonable efforts, and only in such event, Protiv 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 Protiv’s infringement or misappropriation of intellectual property of a third party.

13.3 Customer’s Indemnity

Customer shall defend and indemnify Protiv and its Third-Party Vendors against any and all Losses incurred by Protiv 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 the contract.

CUSTOMER WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS PROTIV, ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, INCLUDING THE APPLICABLE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS THEREOF FOR DAMAGES, COSTS AND ATTORNEYS’ FEES PROTIV INCURS FROM ANY USER, AFFILIATED OR UNAFFILIATED CLAIM ARISING FROM CUSTOMER’S CONTENT OR CUSTOMER’S OR ANY END USER’S USE OF THE SERVICES.

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 shall promptly reimburse the indemnified party for all such costs and expenses.

14. NOTICES

Except as otherwise provided in Section 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;

(d) by email whose receipt is acknowledged by an officer of the receiving Party. If to Protiv, a notice shall be forwarded to Cinder Tech, Inc, DBA Protiv, at 525 Washington Blvd, 3rd Floor, Jersey City, NJ 07310, Attention: 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 Protiv's prior written approval. 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

Protiv 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 Protiv 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 Protiv’s global database(s) to assist Protiv 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.

Protiv's failure 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. Protiv reserves any rights not expressly granted herein.