Provision IAM Terms of Service

1. OVERVIEW

This Agreement sets forth the rights and responsibilities of Client and Provision IAM in connection with the provision of those Subscription Services and Consulting Services (together the "Services") as selected by Client on the Effective Date and from time to time during the term hereof, and including any services or products that may be developed in the future and offered by Provision IAM to Client. In this regard, this Agreement is intended to operate as a "master agreement," and shall govern the provision of all Services as well as the rights and obligations of the parties with respect thereto, except as may be otherwise expressly provided in a particular Order Form or statement of work, so long as the requirements of Section 16.11 are met.

 

2. SERVICES AND PRODUCTS

2.1 Order Form and Statement of Work. Services will be provided to Client pursuant to Provision IAM's order form in the form attached hereto as Exhibit B and incorporated herein ("Order Form") for Subscription Services or a statement of work ("SOW") for Consulting Services, which may, as determined by Provision IAM and Client, involve multiple stages depending on the scope of the SOW. Each Order Form and/or SOW will include the appropriate Client assumptions and major project timelines and milestones with respect to the specific work to be performed or services to be delivered. If Client fails to perform any material functions required of it in the Order Form or SOW in a timely manner, or Client's assumptions are not accurate, Provision IAM shall be entitled to an equitable adjustment for any affected timelines if such failure to perform or inaccurate assumptions affect Provision IAM's ability to perform.

2.2 Subscription Services. Client is hereby granted a right, during the term of this Agreement, to access and use the online Subscription Services which are being operated and provided by Provision IAM, within the permitted use specified in the Order Form and in any case not for further commercialization or resale. The Subscription Services shall be provided to Client within the scope of the requirements specified in the Order Form. Client agrees to pay for such Subscription Services at the prices set forth in the Order Form, and for any future Subscription Services, at prices as otherwise established by Provision IAM in connection therewith. In addition, the Subscription Services selected will be provided by Provision IAM subject to the terms and conditions set forth herein, and in accordance with the service levels set forth in Exhibit A attached hereto and incorporated herein ("Service Levels") or as otherwise attached to an Order Form. For Client's convenience, Provision IAM may offer to Client third party add-ons that integrate with, or complement, the Subscription Services. Such third-party add-ons are owned and operated by the applicable third parties, may be subject to separate terms of service and policies of such third parties, and Provision IAM shall not be responsible or liable for such add-ons.

2.3 Professional Services. Provision IAM hereby agrees to provide Client with those Consulting Services requested by Client from time to time, as set forth in a SOW. Such Consulting Services will be performed by Provision IAM in the United States. Each SOW will be prepared by Provision IAM, with input from Client, and Client shall be responsible for providing prompt feedback during the provision of the Consulting Services.

2.4 Subscription Services License.

(a) Beginning on the Effective Date, and subject to the limitations set forth elsewhere in this Agreement, Provision IAM grants to Client a nontransferable, non-sublicensable, non-assignable, nonexclusive, limited license to use the Subscription Services solely in connection with its Internal Business Purposes and only within the United States. The limited license granted herein will extend only to those authorized users designated by Client in writing on a form approved by Provision IAM (each, an "Authorized User"). The term of the Subscription Services licensed hereunder will be as set forth in the specific Order Form, provided, however, that the term of any licensed Subscription Services shall automatically expire upon the termination of this Agreement. Each Authorized User will be assigned a username and password for accessing the Subscription Services. Only Authorized Users are permitted to access the Subscription Services. An Authorized User licensed hereunder shall be limited to employees, agents, and/or officers of Client, and are subject to denial of access by Provision IAM, in its sole discretion. Any disclosure of a username and password by Client or any Authorized User shall constitute a breach of Article 9 (Confidentiality) of this Agreement. Provision IAM recommends that the Subscription Services should be used with the hardware and software identified in the Order Form and any related documentation provided by Provision IAM. For the avoidance of doubt, this Agreement does not grant to Client any rights with respect to the source code to the Subscription Services or any related documentation. Client will not (and will not attempt to) modify, prepare derivative works of or from, reverse engineer, decompile, or disassemble the Subscription Services or any component of the Subscription Services, or any metering equipment with which the Subscription Services can be used and which are owned by Provision IAM or upon which the Subscription Services are configured or powered. Client will not use the Subscription Services for comparison purposes to disparage the Subscription Services. The Subscription Services may contain a deactivation mechanism and Provision IAM may, at its sole option, utilize such mechanism if Client breaches any obligations pursuant to this Agreement. The Subscription Services licensed on the Effective Date are set forth in the Order Form. For purposes of this Agreement, "Internal Business Purposes" means Client's access and use of the Subscription Services for its intended purpose of identity access management solely for Client's internal needs, pursuant to an Order Form.

(b) Any changes to Client's platform created by Client's use of the Subscription Services may require use of Consulting Services which will be documented and approved via a separate SOW. No copies of the Subscription Services may be created.

(c) With respect to the Subscription Services for which a license is granted hereunder, upon (i) the agreement of Provision IAM to provide the Subscription Services, (ii) the designation of at least one Authorized User with respect to such Subscription Services, and (iii) the receipt of the initial license and connection fees regarding such Subscription Services, Provision IAM will give Client access to the Subscription Services. Access will be granted according to the number of seat licenses purchased (designated Authorized Users) and such other pricing metrics as are set forth in the Order Form. Client shall pay to Provision IAM the charges, license fees, connection fees, maintenance fees, and other charges for the Subscription Services as set forth in Section 7 and the Order Form.

2.5 Use and Receipt of Services. Client may only access and use the Subscription Services within the United States for Client's Internal Business Purposes. In addition, Client will only permit Authorized Users located within the United States to access and use the Services. Notwithstanding anything in this Agreement to the contrary, Client may not distribute, redistribute, license, sublicense, assign, sell, resell, or otherwise transfer any or all portions of any Services contracted for hereunder, nor shall Client use the Subscription Services or any Provision IAM software or systems to create any computer software program or solution or user documentation that is substantially similar to the Provision IAM Technology or Subscription Services. Client may not use the Subscription Services to provide such Subscription Services in its own right to any other third parties without the express written consent of Provision IAM, and subject to the terms and conditions established by Provision IAM in its sole discretion. As used in this Agreement, "Provision IAM Technology" means Provision IAM's proprietary software, technology, frameworks, platforms, methodologies, analytical data or metadata generated from the use of any services or solutions provided by Provision IAM, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and best-practices documentation, including any enhancements, modifications or derivatives thereof, and any related work-in-progress, improvements, subsequent releases, derivative works of or modifications to the foregoing, that are or were conceived, created or reduced to practice by or for Provision IAM (alone or with others) at any time, which are provided to Client. Subscriptions, maintenance, and Services each individually and collectively include elements of Provision IAM Technology.

2.6 Non-Circumvention. Client agrees that it or its Authorized Users shall under no circumstances: (a) use information from the Subscription Services for commercial resale or for access by a third party in competition with Provision IAM or the Subscription Services provided by Provision IAM; or (b) provide access to or information from the Subscription Services to a company that plans to resell to a third party access to the Subscription Services or information obtained therefrom.

 

3. ACCESS; INTEGRATION; ACCEPTANCE TESTING

3.1 Availability and Acceptance. The Subscription Services will become available via cloud server access to Client upon the agreement of Provision IAM to provide the Subscription Services and the payment of any initial fees due hereunder. Client will then have five (5) business days to test the Subscription Services to determine that they conform to the specifications set forth in the Order Form. Client's use of the Subscription Services without objection thereafter will constitute acceptance of the Subscription Services.

3.2 Final Acceptance. Upon access via the cloud servers, if the Subscription Services materially and substantially fail to perform in accordance with the specifications established under the applicable Order Form, Client shall promptly, but in no event beyond the five (5) business days following access, provide Provision IAM with written notice of failure of the Subscription Services. Such notice shall specify in detail the reasons why the Subscription Services are non-conforming. Provision IAM and Client will review the objections, and Provision IAM will then use commercially reasonable efforts to correct any material deficiencies and provide Client with conforming Subscription Services within such period as is reasonably necessary in Provision IAM's sole determination.

 

4. ADMINISTRATION OF PRODUCTS AND SERVICES

4.1 Client Resources. Client and its Authorized Users will be responsible for providing all resources, including without limitation all equipment, hardware and communications connectivity between Client's servers and the Subscription Services available via cloud access, and as applicable, between Client's and Provision IAM's facilities, as needed to access and use the Subscription Services. To the extent Provision IAM's performance of the Services requires any data, documents, information or materials of any nature to be furnished, in whole or in part, by Client directly, or through its agents, contractors, representatives or Authorized Users, Client will furnish, or cause such agents, contractors, representatives or Authorized Users to furnish, such data, documents or information in order to enable Provision IAM to perform the Services hereunder in a timely manner. If Client or its Authorized Users fail to provide resources or information as contemplated in this Section 4.1, then, in addition to any other limitation of liability for the benefit of Provision IAM in this Agreement, Provision IAM shall be relieved of any obligation to provide Services, or to meet any applicable Service Levels, to the extent such failure results in Provision IAM's inability to provide such Services or meet such Service Levels, and further, Client shall be responsible for any increased cost to Provision IAM in providing Services as a result of such failure, and shall be responsible for any costs associated with exceeding an estimate as a result of such failure.

4.2 Support/Maintenance. Provision IAM will provide limited support services as set forth herein during its normal business hours. Support availability times are Monday through Friday from 9:00 a.m. to 5:00 p.m. (EST/EDT), excluding Provision IAM's designated holidays. Except as may be otherwise set forth in an Order Form or SOW, or except as may be otherwise agreed to in writing, support as contemplated herein is limited to technical support for access to integration, and any support provided outside of the times specified herein will be: (a) limited to Provision IAM's designated personnel and, as a result, may be limited in scope and response time; and (b) subject to a surcharge of two times the professional services rates, as then in effect. The Provision IAM Subscription Services are maintained on a standard release schedule for all clients. Client is solely responsible for maintaining its systems and software in such a manner so as to be compatible with the supported versions of the Provision IAM Subscription Services and Technology.

4.3 Service Levels. Provision IAM will perform all Subscription Services for Client in accordance with the Service Levels set forth in Exhibit A.

4.4 Designated Point of Contact (POC). Each party will select and advise the other party of the name and contact information of its designated point of contact ("POC") of its authorized representative for coordination of each party's responsibilities and obligations under this Agreement and in connection with each Order form or SOW. Such POCs shall be reasonably acceptable to the other party. Either party may replace its POC with another person reasonably acceptable to the other party.

 

5. THIRD PARTY CONSENTS

To the extent applicable under an Order Form or SOW, Client will cooperate with Provision IAM and coordinate any required communications and/or meetings with Client's third party vendors and partners in order for Provision IAM to perform the Subscription Services or provide any related Consulting Services. Except as otherwise set forth in the Order Form or SOW, to the extent the Subscription Services or Consulting Services require access to a third party's information or use of or interconnection with a third party's services, facilities or systems, Client shall be responsible for obtaining any required third party licenses or consents necessary to allow Provision IAM to provide the Subscription Services to Client.

 

6. TERM; TERMINATION

6.1 Term. Unless otherwise terminated by the parties in accordance with Section 6.2 below, the initial term of this Agreement shall commence as of the Effective Date and continue until the Ending Date specified in the SOW or on the Order Form under the Contract Period (Order Term) (the "Initial Term"). Thereafter, unless either party delivers written notice in accordance with Section 16.5 to the other party at least ninety (90) days before the end of the then-current Initial Term or any renewal term, this Agreement shall automatically renew for additional terms of one (1) year each (each a "Renewal Term") at prices that may increase annually over the prices set forth in the SOW or Order Form by a percentage equal to the corresponding annualized percentage increase or decrease for such renewal year in the consumer price index for the greater of all urban consumers and all items as published by the U.S. Department of Labor Bureau of Labor Statistics ("CPI-U").

6.2 Termination for Default. Either party may terminate this Agreement, effective immediately upon delivering written notice of termination to the other party, upon the occurrence of an Event of Default of the other party. An "Event of Default" of a party means any of the following:

(a) With respect to Client only, failure by Client to make any payment properly due hereunder within thirty (30) days following receipt of written notice from Provision IAM of such payment becoming past due, or any two instances of failure to pay by the due date during any 12-month period;

(b) Failure by either party to perform any other material obligation under this Agreement if such failure continues for at least thirty (30) days after written notice thereof is received from the other party advising the breaching party with specificity of such failure, unless within said thirty (30) day period the non-performing party commences curing such breach and continues to act diligently until such breach is cured;

(c) Any breach in the security of the Provision IAM Technology as a result of actions of Client that are not remedied within the time specified by Provision IAM;

(d) The dissolution of a party; or

(e) The commencement of any proceedings relating to such party under any bankruptcy, reorganization, insolvency, adjustment of debt or liquidation law, either by such party or by another, which, if commenced involuntarily, is not dismissed within sixty (60) days; the insolvency of such party as finally determined by a court proceeding; or the filing by such party of a petition or application to accomplish the same; or for the appointment of a receiver or a trustee for such party or a substantial part of its assets; or the seizure of the Client by any state or federal regulatory authority.

Termination of this Agreement as provided hereunder shall also operate to terminate any Order Form or SOW then in effect. In addition, upon any termination or expiration of this Agreement for any reason, Client shall promptly pay to Provision IAM any accrued but unpaid (including accrued but not yet billed) amounts owing or due to Provision IAM as of the date of such termination, including the early termination charges as provided in Section 7.2 below, and all software, documents and materials related to the Subscription Services or Provision IAM Technology or system or Provision IAM software in Client's possession shall be immediately returned to Provision IAM.

 

7. COMPENSATION AND PAYMENTS

7.1 Compensation. As compensation for the Subscription Services and Consulting Services provided by Provision IAM hereunder, Client shall pay to Provision IAM, without setoff, the fees and expenses set forth in the Order Form or SOW. Provision IAM will provide invoices to Client based on the dates/terms set forth in the Order Form or SOW, which will itemize the amounts owed for the prior period. Client shall pay each invoice within thirty (30) days from receipt of such invoice for all Services provided during the previous month. If Client in good faith disputes any portion of an invoice, Client will notify Provision IAM of such dispute and deduct the amount in question from payment to the extent reasonably contested by Client, with all other amounts not being contested being owed and payable as set forth above. In such event, the parties shall negotiate in good faith to resolve the dispute. Except as provided in this Agreement, (i) Client shall not withhold timely payment of any properly owed and payable amount, and (ii) Provision IAM shall continue to provide the Subscription Services or Consulting Services pending resolution of any dispute as to the accuracy of any invoiced amounts. All amounts due and not paid within fifteen (15) business days of the due date set forth on the applicable invoice will be charged one and one half (1-1/2) percent monthly interest on the amount unpaid until such delinquent amounts are paid in full. In the event an Order Form or SOW provides for pricing and compensation specific to the Subscription Services or Consulting Services obtained by Client, then the pricing and payment terms of the Order Form or SOW shall govern, notwithstanding Sections 1 and 16.11 of this Agreement.

7.2 Early Termination Charges. Except for a termination by Client as expressly permitted hereunder, if an Order Form is terminated prior to end of the term hereof for any reason, Client shall pay Provision IAM a termination charge (which Client acknowledges reflects a reasonable measure of actual damages and not a penalty) equal to 100% of the fees that would have become due for the remainder of the term of the Order Form, in addition to all other fees accrued and outstanding as of the date of termination. All such fees shall be immediately due and payable upon receipt of a final invoice from Provision IAM.

7.3 Taxes. As between the parties, Client shall be responsible for any sales, use, excise, value-added, services, consumption or other tax that is assessed on the provision of the Subscription Services, other than state and federal income taxes imposed on Provision IAM's taxable income or payroll taxes. If and to the extent such tax is reduced or eliminated during the Term, Provision IAM shall decrease its charges for the Services to the same extent as its tax burden is reduced or eliminated as a result of the reduction or elimination of such tax.

7.4 Collection Fees/Checks Marked "Paid in Full". In the event any action is brought by Provision IAM to collect any amounts due and owing under this Agreement, Client agrees to pay Provision IAM's actual costs of collection, including any court costs and legal fees. Further, any language on any check or other instrument, or on any subsequent purchase order or other writing issued by Client that contains language indicating that a payment is deemed as a payment in full for any outstanding amounts due under this Agreement shall be ineffective to discharge any amounts in excess which remain due, and Provision IAM may cash or apply any such payment notwithstanding such language without waiving its rights to full payment for all amounts due. If a check, other instrument, purchase order or other writing is to be effective as payment in full upon cashing, then it must make specific reference to this Section 7.4 of this Agreement, and be sent to the place for the sending of formal notices as set forth below in Section 16.5, and not sent to the regular place for making payments hereunder.

 

8. INTELLECTUAL PROPERTY

8.1 Intellectual Property Rights in Provision IAM Technology. Provision IAM is and shall remain the exclusive owner of, and retains all Intellectual Property Rights and all other ownership interests in and to, the Provision IAM Technology and Subscription Services, and in any and all modifications, releases, derivatives or customizations thereof. All object and source code comprising the Provision IAM Technology shall at all times reside on servers that are in the custody of and are operated by Provision IAM and/or its authorized subcontractors. Client shall have no rights with respect to the Provision IAM Technology other than the right to receive the applicable Subscription Services via the cloud portals through which Provision IAM makes the subscription Services available, and only to permit Authorized Users to receive the Subscription Services via the Provision IAM Technology, subject to the terms and conditions set forth in this Agreement and in any Documentation provided with the Subscription Services at the time of access and implementation. Client will not, and will not permit any third party, to copy, transmit, distribute, sell, rent, lease, transfer, reproduce, modify, adapt, enhance, translate, reverse engineer, disassemble, decompile, attempt to derive source code, or create derivative works or competing products from the Provision IAM Technology or any source code or components thereof, or from any platforms or programs upon which the Subscription Services are configured or powered. For purposes of this Agreement, "Documentation" means the user instructions, help notes and other specific guidance set forth on or with an Order Form, and any future release notes for the licensed Subscription Services.

8.2 Intellectual Property Rights in Work Product. All Intellectual Property Rights in and to the Work Product shall be vested solely in Provision IAM and all such Work Product shall be deemed to be a part of the Provision IAM Technology. Client agrees not to challenge the validity of any such Intellectual Property Rights, and further agrees to execute any documents and take any other actions as may be necessary, or as Provision IAM may request, to evidence, establish and/or perfect Provision IAM's ownership of any such Work Product. Client hereby appoints Provision IAM as its true and lawful attorney-in-fact with the right to execute assignments of and to register any and all rights to the Work Product. This appointment is coupled with an interest and shall survive termination of this Agreement. All such Work Product shall be considered as Provision IAM's Confidential Information, which shall further include all source code, object code, and any platforms upon which the PROVISION IAM System is configured or run. For purposes of this Agreement, "Work Product" means any and all designs, copyrightable works, ideas, inventions, technology and other creations (including, without limitation, software, design or performance specifications, reports, manuals, and other documentation), and any related work-in-progress, improvements or modifications to the foregoing, that are created, developed or conceived by Client or by Provision IAM (alone or with others) in connection with Provision IAM's performance under this Agreement.

8.3 No Implied Licenses. Each party acknowledges and agrees that, except for any licenses expressly set forth in this Agreement, nothing contained in this Agreement (including any Order Form or SOW) shall be construed as granting to the other party, by implication, estoppel or otherwise, any right, title or interest in and to any Intellectual Property Rights of the granting party, and the other party shall not take any actions inconsistent with the foregoing. Notwithstanding the foregoing, Provision IAM will be free to use for any purpose the Residuals resulting from its access to or work with Client's Intellectual Property Rights or Confidential Information, or from the Work Product. "Residuals" means general knowledge, skills and experience, not including Client's Intellectual Property Rights or Confidential Information, in non-tangible form which may be gained by Provision IAM in the performance of this Agreement. Provision IAM shall have no obligation to pay royalties for any work or revenues derived or resulting from the use of Residuals.

8.4 Intellectual Property. For purposes of this Agreement, "Intellectual Property Rights" means, on a world-wide basis, any and all now-known or hereafter known or created rights associated with works of authorship or creation including, without limitation: (i) copyrights, copyright rights, moral rights and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and other patent rights; (v) other rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; (vi) all other intellectual and industrial property rights of every kind or nature and however designated, whether arising by operation of law, contract, license or otherwise; and (vii) all national, foreign and state registrations, applications for registration and all renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisional, reissues, substitutions and reexaminations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations of any rights relating thereto; and to settle and retain proceeds from any such actions).

8.5 Equitable Remedies. In addition to and without limiting any other rights and remedies available to an owner of Intellectual Property Rights, such owner may obtain injunctive relief without requirement of posting a bond to redress or prevent violations of this Article 8.

 

9. CONFIDENTIALITY

9.1 Confidential Information. In connection with the performance of their respective obligations under this Agreement, each party may disclose certain of its Confidential Information (as defined hereafter) to the other party and its agents, employees and representatives, including technical and legal advisers (collectively, "Representatives"). "Confidential Information" of a party ("Owner") means the proprietary and confidential data or information of the Owner, including its "Trade Secrets" (as defined under applicable law), which is of tangible or intangible value to such Owner and is not generally known by or available to the competitors of the Owner. Notwithstanding the foregoing, Confidential Information shall not include information which: (a) at the time of disclosure to the receiving party ("Recipient") is in the public domain or thereafter enters the public domain through no wrongful act or omission of the Recipient; (b) is already known by the Recipient at the time of disclosure by the Owner and such information is not otherwise subject to confidentiality obligations of the Recipient; (c) is available to the Recipient at the time of disclosure by the Owner from a third party who, to the Recipient's knowledge, may disclose such information without violation of any confidentiality obligation; or (d) is independently developed by the Recipient without the use of any Confidential Information. For the avoidance of doubt, Provision IAM's Confidential Information will include, without limitation, the Provision IAM Technology, and Client's Confidential Information will include any "nonpublic personal information" regarding Client's customers or prospective customers, or its employees, as that term is defined under the Gramm-Leach-Bliley Act, 15 U.S.C. §6801 et seq., as amended (hereafter as "NPPI"), and which is provided to Provision IAM specifically in accordance with procedures set forth in an Order Form or SOW. In this regard, Client understands and agrees that unless an Order Form or SOW specifically provides for NPPI to be provided to Provision IAM as part of the provision of requested Services provided by Provision IAM to Client, then Client will not and shall not make such NPPI or similarly protected information under any other law available or otherwise visible to Provision IAM under any circumstances, and Provision IAM shall not be held responsible for the protection of such information under these circumstances. Each party will also treat the terms and substance of this Agreement, including the Exhibits and Schedules, as Confidential Information of the other party.

9.2 Protection and Nondisclosure.

(a) In recognition of the Owner's need to protect its legitimate business interests, the Recipient hereby covenants and agrees that it shall regard and treat each item of information or data constituting Confidential Information of the Owner as strictly confidential and wholly owned by such Owner and that it will not use, distribute, disclose, reproduce or otherwise communicate any such item of information or data to any third party or entity for any purpose other than in accordance with the terms of this Agreement. The covenant contained in the preceding sentence shall apply: (i) with respect to Confidential Information, at all times during the term of this Agreement and for a period of three (3) years thereafter (although as to NPPI protected by the Gramm-Leach-Bliley Act, 15 U.S.C. §6801 et seq, as long as required by law); and (ii) with respect to Trade Secrets, at all times such data or information constitutes a "trade secret" under applicable law.

(b) The Recipient may disclose Confidential Information of the Owner to those of its Representatives who need to know such Confidential Information in order to render performance of its obligations hereunder. The Recipient shall be responsible for ensuring the continued confidentiality of all Confidential Information of the Owner known by, disclosed or made available to such of its Representatives in connection with this Agreement, including, without limitation, instructing its Representatives to maintain the confidentiality of such Confidential Information in a manner no less strict than the obligations set forth in this Section 9.

(c) Notwithstanding anything to the contrary herein, either party may disclose the terms and conditions of this Agreement to those third parties that (i) have expressed a bona fide interest in consummating a significant financing, merger or acquisition transaction between such third parties and the Recipient; (ii) have a reasonable ability (financial and otherwise) to consummate such transaction; and (iii) have executed a nondisclosure agreement that: (A) includes within its scope the terms and conditions of the Agreement; (B) limits distribution to those with a need to know in connection with such transaction; and (C) allows use only in connection with the transaction. Each party shall endeavor to delay the disclosure of the terms and conditions of the Agreement until the status of discussions concerning such transaction warrants such disclosure.

9.3. Disclosures Required by Law. If Recipient becomes legally compelled to disclose any of Owner's Confidential Information or Trade Secrets (whether by judicial or administrative order, applicable law, rule or regulation, or otherwise), Recipient will use all reasonable efforts to provide the Owner with prior notice thereof so that Owner may seek a protective order or other appropriate remedy to prevent such disclosure. If such protective order or other remedy is not obtained prior to the time such disclosure is required, Recipient will only disclose that portion of such Confidential Information and Trade Secrets which it is legally required to disclose. In all cases, the Recipient will use all reasonable efforts to maintain the confidentiality of such Confidential Information and Trade Secrets.

9.4 Return of Confidential Information. Promptly upon receipt of written notice from the Owner, Recipient shall return to the Owner or destroy, at the option and expense of the Owner, all Confidential Information and Trade Secrets of the Owner including, but not limited to, Confidential Information and Trade Secrets contained in copies, versions or abstracts of written or descriptive materials of any kind. After the return of such information, the confidentiality obligations of this Agreement shall continue in full force and effect.

9.5 Remedies. Each party expressly understands and agrees that the covenants and agreements to be rendered and performed by it pursuant to this Section 9 are special, unique, and of an extraordinary character, and in the event of any default, breach or threatened breach hereof by the Recipient, the Owner shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, and shall be entitled to such relief as may be available to it pursuant hereto, at law or in equity. All such rights and remedies shall be cumulative, and none of them shall limit any other rights or remedies of either party. In the event Owner institutes an action in equity hereunder to protect its Confidential Information and Trade Secrets, such Owner may do so without requirement of posting a bond.

9.6 Public Disclosure. Subject to Section 16.15 of this Agreement, each party hereto agrees that it will not make any public disclosure of or about this Agreement or the transactions contemplated hereby without obtaining the prior written consent of the other party to the contents of such disclosure, except to the extent that such disclosure is required by law, in which case such party shall use all reasonable efforts to give the other party prior notice thereof and an opportunity to comment thereon.

 

10. INFORMATION SECURITY

10.1 Security Requirements. Provision IAM will operate an information security program utilizing industry standard policies and technologies to protect Client data from unauthorized disclosure or access, and in the case of NPPI, as otherwise in accordance with applicable law. In addition to the Client's responsibilities outlined elsewhere in the Agreement, Client shall take commercially reasonable security precautions to prevent unauthorized or fraudulent use of the Subscription Services or Provision IAM's Technology. Upon becoming aware of any security breach of any part of the Provision IAM Technology, which would reasonably be expected to materially and adversely affect the Subscription Services or Provision IAM's compliance with the terms of this Section 10.1, Provision IAM will, subject to this Section 10.1, promptly notify Client of the incident and take prompt and appropriate action to address such incident. Upon becoming aware of any security breach relating to Client's systems or Client's interactions and access to the Subscription Services or Provision IAM's Technology, Client will, subject to this Section 10.1, promptly notify Provision IAM of the incident and take prompt and appropriate action to address such incident.

10.2 ISP Network. In the case of transmission of data via public ISP or the penetration of industry standard security protocols, Provision IAM shall not be responsible for the corruption, damage, loss or mis-transmission of, or loss of security with respect to data, including the Client Confidential Information, in connection therewith, unless and to the extent such corruption, damage, loss, mis-transmission or loss of security is attributable to Provision IAM's failure to comply with its express obligations under this Agreement.

 

11. REPRESENTATIONS, WARRANTIES AND COVENANTS

11.1 Standard of Performance. Provision IAM warrants that it will perform the Consulting Services promptly, diligently and in a professional and workmanlike manner, using qualified and competent personnel. Provision IAM warrants that it will perform the Subscription Services in a manner that meets or exceeds the Service Level requirements set forth in the applicable Order Form and the Service Levels set forth in Exhibit A, as applicable, during the term of this Agreement. Except as provided below, Client's sole remedy, with respect to any breach of the foregoing warranties, shall be for Provision IAM to use its commercially reasonable efforts to reperform any defective Consulting Services or, subject to the processes outlined in Section 3 of this Agreement, with respect to any failure of the subscription Services, use commercially reasonable efforts to remedy such failure as soon as practicable, given the nature and effect of such failure. Notwithstanding anything to the contrary set forth herein, Provision IAM shall have no obligation to provide the warranty services described in this Agreement with respect to the Services if: (a) Client materially deviates from applicable platform specifications or operating instructions, or fails to perform Client's obligations as set forth in this Agreement, including any Order Form or SOW; (b) Client or any other person or entity (other than Provision IAM) has modified the Services; or (c) Client is using the Subscription Services in conjunction with computer systems, software, browsers, hardware or peripherals not approved by Provision IAM.

11.2 No Viruses, Improper Use. Provision IAM will not knowingly install or utilize, in connection with the Subscription Services, any viruses, Trojan horses, worms, back doors, trap doors, time bombs, cancelbots, drop dead devices, spyware or other computer programming routines that are intended to damage, detrimentally interfere with or disable a computer program automatically or permit unauthorized access to such program or information processed therewith. Likewise, with respect to Client's use of, access to or interface with the Subscription Services, Client will not knowingly install or utilize any viruses, Trojan horses, worms, back doors, trap doors, time bombs, cancelbots, drop dead devices, spyware or other computer programming routines that are intended to damage, detrimentally interfere with or disable the Subscription Services or Provision IAM Technology automatically, or permit unauthorized access to the Subscription Services or Provision IAM Technology or information processed therewith or thereon. Further, Client will not use any sensitive NPPI or other legally protected information of its employees in its use of the Subscription Services.

11.3 Intellectual Property Warranty. Provision IAM represents and warrants that it is the owner of or has the right and license to the Intellectual Property Rights in the Subscription Services which use and rely exclusively upon the Provision IAM Technology, but excluding (i) any portion of the Subscription Services that were developed with or which use and rely upon the Client supplied components, or (ii) any systems and software not provided by Provision IAM in connection therewith. Upon notice of a legally binding determination of an actual infringement by Provision IAM, or if in Provision IAM's sole discretion such a claim of infringement is likely to be successful, or if Client's rights to use the Subscription Services hereunder are restricted by a valid court order in connection with an infringement by Provision IAM in a jurisdiction in which the Subscription Services are being used by Client, Provision IAM shall, at its option and expense: (a) procure the right for Client to continue using the Subscription Services; (b) replace the Subscription Services with non-infringing services with reasonably equivalent functionality; or (c) modify the Subscription Services to make them non-infringing while retaining reasonably equivalent functionality. If Provision IAM is unable to provide one of the foregoing remedies, Client may terminate the applicable Order Form without penalty upon written notice to Provision IAM. The procedures outlined in this Section 11.3 are Client's sole and exclusive remedy, and Provision IAM's sole and exclusive liability, for any infringement of a third party's intellectual property rights involving the Subscription Services.

11.4 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other that it: (a) is an entity duly organized, validly existing and in good standing under the laws of the state of its organization; (b) has full power and authority to enter into this Agreement and to perform its obligations hereunder; and (c) is not subject to any agreement or other constraint that would contradict, prohibit or restrict its right or ability to enter into this Agreement, or carry out its obligations hereunder; and (d) has obtained all rights, licenses, certificates, registrations or other qualifications lawfully required and necessary to conduct its business contemplated under this Agreement. In addition to the foregoing, Client will comply with all applicable laws, rules and regulations relating to Client's receipt or use of the Subscription Services.

11.5 Authorized Users. Client represents that each Authorized User is, and warrants and covenants that each Authorized User at all times will be, fully authorized by Client to act on its behalf and to access and use the Subscription Services on behalf of Client. Client understands and agrees that its Authorized Users will have access levels as specified solely by Client, and that Client is and shall remain at all times responsible for any use or misuse of the Subscription Services by any of its Authorized Users, or by any other person who accesses the Subscription Services due to misfeasance, malfeasance or neglect by Client or an Authorized User. Client further acknowledges and agrees that it is solely responsible for the acts of each Authorized User, regardless of whether such Authorized User is an employee, agent, representative or contractor of Client. The representation contained in this Section 11.5 shall be deemed made each time a new Authorized User is designated by Client.

11.6 Disclaimer of Warranties.

(a) EXCEPT AS SET FORTH IN THIS SECTION 11, ALL SERVICES ARE PROVIDED AS IS, AND PROVISION IAM MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, RELATING TO THE PROVISION IAM TECHNOLOGY OR SERVICES OR THIS AGREEMENT, OR WARRANTIES OF ITS THIRD PARTY PROVIDERS, AND PROVISION IAM DISCLAIMS ALL IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES OF COURSE OF DEALING OR USAGE OF TRADE.

(b) PROVISION IAM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE PROVISION IAM TECHNOLOGY OR PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

(c) PROVISION IAM DOES NOT WARRANT THE CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY INFORMATION OR DATA PROVIDED THROUGH THE SUBSCRIPTION SERVICES.

 

12. INDEMNITY

12.1 Indemnification by Provision IAM. Provision IAM shall indemnify and defend Client, its affiliates and their respective employees, officers, directors, members, shareholders, agents and representatives (collectively "Client Indemnified Parties"), and hold the Client Indemnified Parties harmless from and against any and all losses, costs (including court costs and reasonable legal fees), damages, settlements, suits, actions, expenses, liabilities, taxes, fines and claims sustained by or involving the Client Indemnified Parties to the extent arising out of a breach of Section 9 (Confidentiality), except to the extent there is a breach involving NPPI which is provided to Provision IAM other than in accordance with specific requirements set forth in writing in an Order Form or SOW.

12.2 Indemnification by Client. Client shall indemnify and defend Provision IAM, its affiliates and their respective employees, officers, directors, shareholders, agents and representatives (collectively, "Provision IAM Indemnified Parties") and hold the Provision IAM Indemnified Parties harmless from and against any and all losses, costs (including court costs and legal fees), damages, settlements, suits, actions, expenses, liabilities, taxes, fines and claims sustained by or involving the Provision IAM Indemnified Parties arising out of or resulting from (a) any use of the Subscription Services by or on behalf of Client or by any other parties who gain access to the Subscription Services through Client, including Authorized Users (whether such use or access is authorized or not), (b) any use or dissemination of any information derived from transactions conducted by or through the Subscription Services by Client or by any other parties who gain access to the Subscription Services through Client including Authorized Users (whether such use or access is authorized or not); (c) any material breach by Client of the terms and conditions of this Agreement; (d) any violation of applicable law by Client or by Provision IAM as a result of a following Client's specifications or requirements in connection with Client's integration with or access to the Subscription Services; (e) any claims made by third parties arising out of Client's or an Authorized User's use of the Subscription Services; and (f) the acts or omissions of any third party vendor or partner of Client or for any such third party vendor or partner's services, facilities, systems or data that is utilized by Client or Provision IAM in performing the Services.

 

13. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES

13.1 Limitation of Liability. IN NO EVENT SHALL PROVISION IAM's TOTAL LIABILITY TO CLIENT UNDER ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION (WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EXCEED IN THE AGGREGATE, (A) THE AMOUNT COLLECTED BY PROVISION IAM FOR SUBSCRIPTION SERVICES PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ASSERTION OF THE CLAIM, OR (B) IN THE EVENT TWELVE (12) MONTHS HAVE NOT ELAPSED SINCE THE DATE OF THIS AGREEMENT, THE AVERAGE MONTHLY FEES FOR SUBSCRIPTION SERVICES COLLECTED BY PROVISION IAM SINCE THE BEGINNING OF THE TERM MULTIPLIED BY TWELVE (12). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT BY CLIENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

13.2 Exclusion of Certain Damages. IN NO EVENT SHALL PROVISION IAM OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, SUBCONTRACTORS OR REPRESENTATIVES OR ANY OTHER PARTY INVOLVED IN DEVELOPING OR PROVIDING THE SERVICES OR ANY PORTION THEREOF BE LIABLE HEREUNDER FOR ANY LOSS OF DATA OR OTHER DAMAGES RESULTING FROM ANY DELAY OR DEFECT IN OR NON¬DELIVERY OF ANY DATA TRANSMISSIONS OR SERVICES, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY OF THE FOREGOING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES OR TECHNOLOGY OR RELATED DELIVERABLES OR ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT, WHETHER OR NOT SUCH PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING AND REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE).

13.3 Duty to Mitigate. Each party shall mitigate damages and shall use commercially reasonable efforts to minimize any damages it may incur as a result of the other party's performance or non-performance of this Agreement.

 

14. INSURANCE

14.1 Commercial General Liability Insurance. During the term of this Agreement, Provision IAM agrees to maintain commercial general liability insurance with a single limit of liability of not less than $1,000,000 per occurrence and $2,000,000 aggregate.

14.2 Professional Liability/Errors and Omissions Insurance. During the term of this Agreement, Provision IAM agrees to maintain Professional Liability/Errors and Omissions Insurance covering liability due to errors or omissions in the performance of Services under this Agreement, with limits not less than $2,000,000 million per claim and $2,000,000 million aggregate.

 

15. FORCE MAJEURE

Provision IAM shall not be liable to Client or any other person for any default, damages, delay or failure to perform any provision of this Agreement, or any consequence thereof, brought about by any cause beyond Provision IAM's reasonable control, including, without limitation, fire; earthquake; flood; weather; an act of God; war; terrorism; labor disputes; utility curtailments; power failures; cable cuts; failure caused by telecommunications or other internet provider(s); worms, trojan horses, viruses or other destructive code or software introduced by a third party; explosions; civil disturbances; vandalism; governmental actions or shortages of equipment or supplies; pandemics and government shut downs, or the failure of Client to perform its obligations hereunder (a "Force Majeure").

 

16. MISCELLANEOUS

16.1 Choice of Law. The validity, construction, and enforcement of this Agreement, and the determination of the rights and duties of the parties hereunder, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania (excluding any choice of law principles that would result in the application of the laws of any other jurisdiction).

16.2 Venue and Forum and Jury Trial Waiver. THE PARTIES HERETO AGREE THAT VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE IN THE STATE AND FEDERAL COURTS IN AND FOR ALLEGHENY COUNTY, PENNSYLVANIA, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION FOR SUCH PURPOSE, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES CONTEMPLATED HEREBY.

16.3 Assignment. Client may not assign this Agreement, in whole or in part, without the prior written consent of Provision IAM. For purposes of this Agreement, the acquisition of securities of Client representing 50% or more of the combined voting power of Client's then outstanding voting securities by a person or entity, or a group of related persons or entities, in one or more related transactions shall be deemed an assignment by Client under this Agreement.

16.4 Acquisition of Entity with Existing Relationship. If any merger or acquisition (whether by direct merger or acquisition, through a receiver, or as a result of a seizure of Client by any State or Federal regulatory authority) results in Client and Provision IAM having in effect other agreement(s) with the same general subject matter as this Agreement or any Order Forms or SOW(s) or Product license agreements, the parties agree that Provision IAM may take into consideration the investment of Provision IAM in each relationship prior to the consolidation, including the length of time of performance by Provision IAM under the respective agreements, and reprice the terms of the consolidated relationship in its entirety, so long as the repriced terms do not exceed the higher of any Services or Products provided under either agreement in effect prior to the consolidation. In addition, the deliverables provided to Client may be amended to adapt to any operational changes that result from the merger or acquisition.

16.5 Notices. Any notice, authorization, consent or other communication required or permitted hereunder shall be made in writing and shall be deemed duly delivered upon personal delivery, on the third day following the date on which such notice is sent via certified or registered U.S. mail, postage prepaid, by a nationally recognized overnight courier service (e.g., UPS or FEDEX), or upon confirmed receipt of telecopied transmissions by the intended recipient. Either party may change its address by written notice to the other party. All notices shall be sent to Provision IAM at the address indicated on its website and to Client at the address provided to Provision IAM.

16.6 Burdens and Benefits. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.

16.7 Independent Contractor. The parties acknowledge and agree that in the performance of their respective duties and obligations hereunder they are acting as independent contractors of each other, and neither party shall represent that an employer/employee, partnership, joint venture, franchisor/franchisee or agency relationship exists between them, nor shall either party have the power nor will it represent that it has the power to bind the other party hereto to any contract or agreement.

16.8 Severability. If any one or more of the provisions in this Agreement or any application of such provision is held to be invalid, illegal or unenforceable in any respect by a competent tribunal, the validity, legality and enforceability of the remaining provisions of this Agreement and all other applications of the remaining provisions will not in any way be affected or impaired by such invalidity, illegality or unenforceability.

16.9 Interpretation. This Agreement shall not be construed more strongly against any party regardless of which party is responsible for its preparation, it being agreed that this Agreement was fully negotiated by both parties.

16.10 Captions, Sections. The captions and headings in this Agreement are for convenience of reference only and may not be referred to in the construction or interpretation of this Agreement. Unless otherwise noted, any reference in this Agreement to an "Exhibit," "Orders," or "Section" refers, respectively, to exhibits, orders or sections in this Agreement.

16.11 Exhibits, Subsequent Order Forms, and SOWs. The content and terms of all Exhibits, Order Forms or SOWs (including any of the foregoing that are not completed as of the Effective Date, but are subsequently agreed upon by the parties, and any subsequently amended Exhibits, Order Forms or SOWs) are by this reference incorporated into this Agreement, as if fully set forth. Further, each Order Form or SOW executed in connection with the undertakings under this Agreement may include additional terms and conditions therein. Those terms and conditions are inclusive to this Agreement so long as not inconsistent herewith. In the event of any conflict between the terms, conditions or provisions of any Exhibit, Order Form or SOW and this Agreement, the terms, conditions and provisions of this Agreement shall govern. The parties expressly agree that any future waiver of this Section 16.11 in connection with any Exhibit, Order Form or SOW must be express, must make specific reference to this Section 16.11, and must be in writing, signed by both parties. However, to the extent possible, the parties shall construe the terms and conditions of this Agreement and any Exhibit, Order Form or SOW as complementary to each other. In addition, the course of conduct by and between the parties during the term of this Agreement, even if inconsistent with the terms of this Section 16.11, shall not be considered to be effective to change the intent or operation of this Section 16.11.

16.12 Entire Agreement. This Agreement (including any agreement attached as or referred to in an Exhibit, Order Form or SOW), constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior statement or writing not a part of this Agreement, and neither party shall be bound by any prior or contemporaneous representation, statement, promise, warranty, covenant, or agreement pertaining thereto unless set forth in this Agreement.

16.13 Amendments and Waiver.

(a) No amendment, change, or modification of this Agreement or any of the terms, conditions or provisions hereof, and no waiver of a right, remedy, privilege, power, or discharge of an obligation or liability, conferred upon, vested in, or imposed upon any party under or pursuant to this Agreement, and no consent to any act or omission pertaining hereto will be effective unless duly embodied in a written instrument that is signed by the duly authorized representatives of both parties.

(b) No failure to exercise and no delay in exercising any right, remedy, privilege, or power under or pursuant to this Agreement will operate as a waiver thereof; nor will any single or partial exercise of any right, remedy, privilege, or power provided for under or pursuant to this Agreement by either party hereto preclude or limit such party from any other or further exercise thereof or from pursuing any other right, remedy, privilege, or power available pursuant to this Agreement, at law or in equity.

16.14 Non-Solicitation. Each party agrees that while this Agreement is in effect, and for a period of 12 months following expiration or termination of this Agreement, neither it nor its representatives will directly or indirectly solicit the other party's employees to leave their employment with the other party.

16.15 Publicity. During the term of this Agreement, Client agrees (a) to participate in an online video conference interview hosted by a third party for the purpose of case studies and testimonials/references for prospects and media inquiries; (b) to allow Provision IAM to publish joint press releases of contract signing, successful implementation of Provision IAM solution, and relationship updates from time to time throughout the duration of the relationship; (c) to serve as a reference for prospects (via telephone, online video conferencing, written, or on site visits). Further, Provision IAM may list and publish Client's name and logo on Provision IAM's website and marketing materials as a customer.

16.16 Survival. In addition to any specific survival provisions contained elsewhere in this Agreement, Client's payment obligations under Section 7, and the parties' rights and obligations under Sections 2.5, 2.6, 8, 9, 11.6, 12, 13, and such other provisions by their nature which are reasonably intended to survive, shall survive the expiration or termination of this Agreement, provided, however, that any obligation to indemnify the other party for infringement of a third party's intellectual property rights shall only survive for a period of twelve (12) months after the expiration or termination of this Agreement.