Epic Suite Agreement

Exam Management Suite Master Terms of Use and License Agreement

This Exam Management Suite Master Terms of Use and License Agreement (the “Agreement”) governs Your access to and use of Our web-based Exam Management Suite of software (the “Services”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ANY OTHER INDICIA OR MEANS PROVIDED BY US THAT PROVIDES FOR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY (AND ITS AFFILIATES, AS MAY BE AGREED TO BY US) TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access nor use in any manner or form whatsoever the Services if You are Our direct competitor without Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on June 3, 2015. It is effective between You and Us as of the date You accept this Agreement (the “Effective Date”).

1. TABLE OF CONTENTS

DEFINITIONS
FREE TRIAL SERVICE
PURCHASED SERVICES
PROPRIETARY RIGHTS
LIMITED USE LICENSE
USE OF THE SERVICES
CONFIDENTIALITY
TERM AND TERMINATION
FEES AND PAYMENT FOR PURCHASED SERVICES
WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
MUTUAL INDEMNIFICATION
LIMITATION OF LIABILITY
NOTICES, GOVERNING LAW AND JURISDICTION
GENERAL PROVISIONS

1. DEFINITIONS

Capitalized terms that are not otherwise defined in the body of this Agreement shall have the following meanings:

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Services” means the products and/or services offered by Us under the names “Exam Management Suite”, “Essentials!”, “Events!”, “Prep!”, “Strasz Assessment,” or successor branding, that You order from Us (whether a Free Trial Service, Purchased Services under a subscription basis, or otherwise) and We make available online via password-protected customer login, including associated offline components, as described in the User Documentation.

“Order Form” means the documents, forms, web pages or other means specified by Us, whether online or in any other format or media, including digital or hard copy, for placing orders for the Services hereunder that are entered into between You and Us, including any addenda, supplements, riders, attachments or exhibits thereto, in any format or media, including digital or hard copy. By entering into an Order Form hereunder, your Affiliate(s), if approved by US, agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms entered into by You and any approved Affiliate of Yours shall be deemed incorporated herein by reference.

“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

“User Documentation” means Our training, help, how-to and explanatory materials that assist Users in using the Services, as such materials may be updated from time to time accessible via log-in to the Services or otherwise as made available by Us.

“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include, but are not limited to, Your employees, consultants, contractors and agents, and third parties with which You transact business.

“We,” “Us” or “Our” means Strasz Computer Consulting, Inc., a New Jersey corporation, with a primary business office located at 4390 U.S. Highway 1, Suite 240, Princeton, New Jersey 08540, including any party legally authorized to act on its behalf under this Agreement.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and any Affiliate(s) of that company or entity approved by Us. If You are an agency purchasing the Services on behalf of Your clients, the terms “You” or “Your” shall include such clients, provided that You shall be responsible for such clients’ compliance with Your obligations under this Agreement, for any breach of those obligations by such clients, and for payment for the Services purchased on behalf of such clients.

“Your Data” means any electronic data or information submitted by You or for You to the Purchased Services or that is collected and processed by You or for You using the Purchased Services.

2. FREE TRIAL SERVICE

We may make one or more versions of the Services available to You on a trial basis, free of charge (collectively, any such free trial Service a “Free Trial Service” and the free trial period of said Service, the “Free Trial Period”) until the earlier of: (a) the end of the Free Trial Period for which you registered or are registering to use the applicable Free Trial Service, or (b) the start date of any Purchased Services ordered by You. Your obligations with regard to Your Data shall apply to any data submitted to or collected through the Free Trial Service. Additional trial terms and conditions may apply for a Free Trial Service, in which case such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You. Any such additional terms and conditions for a Free Trial Service shall be provided to You upon registering for the Free Trial Service. Upon accepting the terms and conditions of this Agreement with respect to any Free Trial Service, You acknowledge, understand and agree to be bound by such additional terms and conditions incorporated herein.

IF YOU USE ANY FREE TRIAL SERVICE AND DO NOT PURCHASE A SUBSCRIPTION FOR THE SERVICES (PURCHASED SERVICES) BEFORE THE END OF THE TRIAL PERIOD, YOUR SUBSCRIPTION FOR THE FREE TRIAL SERVICE WILL EXPIRE AT THE END OF THE FREE TRIAL PERIOD. ANY DATA ENTERED OR PROVIDED BY YOU INTO THE FREE TRIAL SERVICE OR RECEIVED AND PROCESSED BY YOU IN CONNECTION WITH YOUR USE OF THE TRIAL SERVICE, AND ANY CUSTOMIZATIONS THAT MAY BE MADE TO THE FREE TRIAL SERVICE BY YOU DURING THE FREE TRIAL PERIOD, WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL SERVICE BEFORE THE END OF THE FREE TRIAL PERIOD.

NOTWITHSTANDING SECTION “WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”, DURING THE FREE TRIAL PERIOD THE FREE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR SUPPORT.

You must review the User Documentation during the Free Trial Period so that You become familiar with the features and functions of the Free Trial Service before You make Your purchase.

3. PURCHASED SERVICES

Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the applicable Order Form(s) submitted by You and accepted and approved by Us on a per User subscription basis (the act thereof under this Agreement and the applicable Order Form(s), a “Subscription”) for the total number of Users identified by You in the applicable Order Form(s) for and during the requested Subscription term or period (the “Subscription Term”). You agree that any and all such Purchased Services hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features of Services.
Subscriptions. Unless otherwise specified in the applicable Order Form: (i) Purchased Services are only available for and purchased as a Subscription for the Subscription Term and may be accessed only by the number of subscribed Users set forth in the applicable Order Form(s) and in accordance with the terms and conditions thereof (as accepted and approved by Us); (ii) additional Users may be added during the applicable Subscription Term at the same pricing as that for the preexisting subscribed User quantities thereunder, prorated as applicable for the remainder of the Subscription Term; and (iii) any Users added to a Subscription during the Subscription Term shall terminate on the same date as the pre-existing subscribed Users under that Subscription. The Services under a purchased Subscription may only be accessed and used by the designated number of Users therein, on an individual basis only, and subscribed User allotments may not be shared or used by more than one individual.

4. PROPRIETARY RIGHTS

Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, We reserve all right, title and interest in and to the Services and User Documentation, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Restrictions. You shall not: (i) in the course of using the Services, access or use any third party software, code, social media platforms, applications, Your Data and any other content, code or data in violation of applicable laws, the terms and conditions of this Agreement and any applicable Order Form(s), any terms of service, privacy policy or other notice posted or otherwise referenced on Our website at http://strasz.com/as applicable; (ii) display, distribute or make available the Services to any third party or permit any third party to access the Services except as permitted herein or in an Order Form; (iii) create derivative works based on the Services, the User Documentation, or any portion thereof, except as permitted herein; or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, the User Documentation, or any portion thereof.
Your Data. As between You and Us, You shall own all of Your Data, including any content, statistics, reports and other data and materials, but only to the extent generated solely from Your Data, and all intellectual property rights therein; provided, however, You grant to Us the right to access Your Data to provide feedback to You concerning Your use of the Services.
Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services and the User Documentation any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the use, operation and administration of the Services.
Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement.

5. LIMITED USE LICENSE

Grant of License. Subject to and in accordance with the terms and conditions of this Agreement, and conditioned upon the payment of the appropriate User and license fees in an applicable Order Form for Purchased Services for a Subscription Term, We grant to You, and Your Affiliates (as approved by Us), a world-wide, non-exclusive, limited right of access and license to use the Services for the sole and exclusive purpose of displaying and administering computer based testing and assessment services to Users in accordance with the applicable Order Form(s) (the “Grant of License”). With respect to a Free Trial Service, subject to and in accordance with the terms and conditions of this Agreement, We grant to You a single point of use, time-limited, non-exclusive, limited right of access and license to use the Free Trial Service for the sole and exclusive purpose of learning Our Services to determine whether to acquire Purchased Services for a Subscription Term (the “Limited Free Trial License”). The Limited Free Trial may not be used for displaying and administering computer based testing and assessment services to Users and offers limited functionality for trial purposes only. You shall not use and shall not permit the use of any Service provided by Us pursuant to this Agreement, whether Purchased Services or a Free Trial Service, or any portions thereof, outside the scope of the Grant of License (or Limited Free Trial License for a Free Trial Service) hereunder or in contravention of this Agreement or any applicable Order Form(s).
Reservation of Rights and Ownership. We reserve all rights not expressly granted to You in this Agreement. The Services and User Documentation, and all portions thereof, are protected by copyright and other intellectual property laws and treaties. We are the owner or record beneficiary of all title, right, interest, copyright or other applicable intellectual property right in the Services and the User Documentation, and all portions thereof. The Services and User Documentation are licensed, not sold, in accordance with this Agreement and this Agreement and any applicable Order Form(s) do not grant You any rights to the Services and User Documentation except as is expressly provided herein.
Limitations on Use. Except as otherwise provided in this Agreement, You may not reverse engineer, decompile, disassemble, merge, use, disclose, sell, transfer or copy the Services or User Documentation, or any portion thereof, and You many not modify the Services or the User Documentation, except as is expressly provided herein. You may not, without Our prior written consent, rent, lease, lend or provide commercial hosting services of or to the Services or the User Documentation, or any portion thereof.
No Sublicense. You may not sublicense the Services, or any portion thereof, directly or indirectly, to any third party, including any Affiliate, without Our prior express, written consent, which We may grant or deny in Our sole and absolute discretion. Any sublicense or attempted sublicense by You in contravention of this Agreement shall be void as a matter of law and shall constitute a Material Breach of this Agreement, subject to the provisions of Section “Term and Termination”.

6. USE OF THE SERVICES

Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge as set forth in the applicable Order Form(s) for the Purchased Services (upgraded support may be purchased); and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned maintenance (of which We shall give at least 72 hours’ notice online via the Services or via email (except in cases of emergencies, in which we shall use best efforts to provide such notice as soon as practicable) and which We shall schedule to the extent practicable during the weekend hours from 10:00 PM Friday to 6:00 AM Saturday and 10:00 PM Saturday to 6:00 AM Sunday, all Eastern U.S. Time), or (b) any unavailability of Purchased Services or any error, omission, interruption, deletion or defect in data caused by circumstances beyond Our reasonable control, including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), failures, downtime or delays in the operation or transmissionof data by an Internet service or hosting provider, failure, theft or destruction or unauthorized access to, or alteration of, communications and data line(s), technical problems or traffic congestion on the Internet, or any other circumstance beyond Our reasonable control.
Our Protection of Your Data. We shall maintain appropriate industry standard security procedures to assure the integrity and security of Your Data. We shall segregate and maintain, using appropriate industry standard security measures, Your Data separately and apart from all other software and data owned by Us or any other of client of Ours to provide reasonable assurance that none of Your Data will be disclosed or made available to any unauthorized third party. We shall maintain appropriate industry standard administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data; (b) disclose Your Data except as compelled by law in accordance with the Section “Confidentiality”/“Compelled Disclosure”, below, or as expressly permitted in writing by You; or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with User support matters.
Notice of Security Breach. We shall promptly upon discovery notify You of any security breach by which any third party not authorized by the Parties (including any law enforcement agency purporting to exercise its legal authority) accesses Your Data, or any portion thereof.
Compliance with Laws. We shall comply with all federal, state and local laws, codes, regulations and ordinances (collectively, “Laws”) then in effect applicable to the Services to be provided under this Agreement and any applicable Order Form(s) (including, but not limited to, all Laws relating to privacy, data collection, data access and data protection).
Network Equipment. We shall be responsible for providing the appropriate server(s) and other computer hardware, network equipment and software (collectively, the “Network Equipment”) associated with and required to provide Purchased Services to you in accordance with the terms and conditions of this Agreement. We shall further be responsible for installing the quality assurance and disaster recovery environments for Purchased Services and Your Data. The selection, acquisition, installation and integration of the appropriate Network Equipment for the provision of Purchased Services to You shall be determined by Us based on Your needs, requirements and specifications in accordance with the applicable Order Form(s). We may, in Our sole and absolute discretion, engage, hire, retain or subcontract third-party vendor(s) in the performance of any obligations hereunder.
Your Responsibilities. You shall: (i) be responsible for each User’s compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquire Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access and use, including any improper sharing by any User, of any Service, or any portion thereof; (iv) use the Services only in accordance with the User Documentation; and (v) with respect to Your use of the Services, comply with all applicable Laws then in effect applicable to Your use of the Services provided under this Agreement and any applicable Order Form(s) (including, but not limited to, all Laws relating to privacy, data collection, data access and data protection).
You shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent, or lease the Services; (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks.
Additionally, You shall not: (i) use the Services for the purpose of serving as a factor in establishing an individual’s eligibility for credit, employment or insurance, or for any other consumer-initiated transaction as defined in the U.S. Fair Credit Reporting Act; (ii) submit to the Services or use the Services to collect, store or process any of the following types of sensitive individually identifiable information, including, without limitation: (a) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended, “HIPAA”) or similar information under other comparable laws or regulations, or (c) financial account numbers (including without limitation credit or debit card numbers, or any related security codes or passwords, bank account information, or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended, “GLBA”) or similar information under other comparable laws or regulations. If the Services are configured by or for You to use cookies and/or other tracking technologies for Your purposes, then You shall be solely responsible: (A) for assessing whether such technologies can be used in compliance with applicable legal requirements, and (B) for providing notice and or obtaining consent, as may be required by law, for such use of cookies and/or other tracking technologies.
Usage Limitations. Services provided hereunder may be subject to other limitations, such as, without limitation, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, or other usage limits. Any such limitations are specified in the User Documentation or an Order Form. The Services may provide real-time information to enable You to monitor Your compliance with such limitations. If You purchase Services subject to usage limits and You routinely exceed those limits, We may work with You to seek to reduce Your usage so that it conforms with such limits and if You are unable or unwilling to abide by applicable usage limits, after We have provided notice of such excess usage, We may require You to execute an Order Form for additional Services and/or invoice You for Your excess usage. In such event, You hereby agree to execute such additional Order Forms and/or pay such additional invoices, as applicable.

7. CONFIDENTIALITY

Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services and the User Documentation; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party to the other. Confidential Information may be in any media, including, but not limited to, writings, computer programs, electronic media, logic diagrams, component specifications, drawings or other media.
Exceptions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise provided herein, during the Term of this Agreement, and for a period of ten (10) years following the termination thereof, the Receiving Party shall not disclose, nor allow others to disclose, Confidential Information belonging to the Receiving Party, and the Receiving Party shall not use Confidential Information belonging to the Receiving Party for any purpose other than as expressly described in this Agreement.
Handling of Confidential Information. In addition to the foregoing obligations, the Receiving Party shall: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Non-solicitation. During the term of this Agreement, and for a period of twenty-four (24) months thereafter, neither party shall, directly or indirectly, solicit for employment or employ, or accept services provided by, any employee, or officer, or independent contractor, who performed any work in connection with or related to the Services.

8. TERM AND TERMINATION

Term of Agreement. This Agreement commences on the date You accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated (the “Term” of this Agreement). If You elect to use the Free Trial Service for a Free Trial Period and do not purchase a Subscription for Purchased Services before the end of that period, this Agreement will terminate at the end of the Free Trial Period, which may not be renewed without Our prior written consent.
Term of Purchased Subscriptions. Any Subscription purchased by You commences on the start date specified in the applicable Order Form for that Subscription and continues for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional Subscription periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of nonrenewal no less then thirty (30) days prior to the end of the relevant Subscription Term (each such renewed Subscription Term a “Renewal Term”). The per-User pricing during any such Renewal Term shall be the same as that during the prior Subscription Term unless We have provided You with written notice of a pricing increase at least 60 days before the end of such prior Subscription Term, in which case the pricing increase shall be effective upon the commencement of the Renewal Term and shall constitute in force and effect thereafter throughout the Renewal Term period. Any such per-User pricing increase shall not exceed seven percent (7%) of the per-User pricing for the relevant Services in the immediately prior Subscription Term, unless the pricing in such prior Subscription Term was designated in the relevant Order Form as promotional or one-time only.
Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund to You any prepaid fees covering the remainder of the Subscription Term of all subscribed Users after the Effective Termination Date. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the Subscription Term of all Order Form(s) after the Effective Termination Date. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the Effective Termination Date.
Return of Your Data. Upon request by You made within 30 days after the Effective Termination Date, We will provide You with a copy of Your Data from the Purchased Services in a mutually agreed format or delete Your Data from the Services except for data held for backup or archival purposes.
Surviving Provisions. Expiration or termination of this Agreement shall terminate each party’s obligations hereunder, except for the following provisions of this Agreement: “Fees and Payment for Purchase Services,” “Proprietary Rights,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions”, all of which survive any expiration or termination of this Agreement. In addition, any other obligation of the parties under this Agreement, which by its nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive.

9. FEES AND PAYMENT FOR PURCHASED SERVICES

Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the number of subscribed Users for Services for the Subscription Term and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities of subscribed Users purchased for the Subscription Term cannot be decreased during the relevant Subscription Term stated on the Order Form.
Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial Subscription Term and any Renewal Term(s) as set forth in Section “Term of Purchased Subscriptions”. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
Overdue Charges. If any amounts invoiced are not received by Us by the due date, then, without limiting Our rights or remedies: (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future Subscription renewals and Order Forms on payment terms shorter than those specified in Section “Invoicing and Payment”.
Suspension of Service and Acceleration. If any amount owing by You under this Agreement, Order Form, or any other agreement for any Service thereunder is thirty (30) days or more overdue (or ten (10) days or more overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. We will provide You at least seven (7) days’ prior notice that Your account is overdue, in accordance with Section “Manner of Giving Notice”, before suspending said Services.
Payment Disputes. We shall not exercise Our rights under Section “Overdue Charges” or “Suspension of Service and Acceleration” if You reasonably and in good faith dispute the applicable charges and are cooperating diligently with Us in good faith to resolve the dispute.
Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases of Purchased Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be invoiced to and paid by You upon receipt of said invoice, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

10. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Our Warranties. We warrant that: (i) the Purchased Services shall perform materially in accordance with the User Documentation; (ii) the functionality of the Purchased Services will not be materially decreased during a Subscription Term; and (iii) We will not transmit Malicious Code to You, provided, however, that We shall not in breach of this subpart (iii) if You or a User uploads a file containing Malicious Code into the Purchased Services and later downloads that file containing Malicious Code. For any breach of a warranty pursuant to this Section “Our Warranties”, Your exclusive remedy shall be as provided in Section “Termination” and Section “Refund or Payment upon Termination”, above.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING COMPLIANCE WITH HIPAA OR GLBA IN PROVIDING THE SERVICES. SERVICES PROVIDED UNDER A FREE TRIAL AT NO CHARGE ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY OR AVAILABILITY COMMITMENT WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

11. MUTUAL INDEMNIFICATION

Indemnification by Us. We shall defend and indemnify You against any claim, demand, suit, litigation, liability, loss, damage and expense arising out of, or alleged to have arisen out of, any third party claim alleging that Your use of the Purchased Services as permitted hereunder and when used for its intended purpose, infringes or misappropriates the intellectual property rights of said third party (a “Claim Against You”), including reasonable attorneys’ fees, reasonable reimbursable costs and expenses and court costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You: (a) promptly give Us written notice of the Claim Against You; (b) allowing Us or Our insurer to control the defense and related settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability), provided further, however, that We shall not have the right to control the defense or any related settlement discussions except to the extent that We assume complete and absolute legal and financial liability, and have the then-current ability to pay all defense costs and amounts due to the claimant(s) of the Claim Against You under such settlement agreement; and (c) provide to Us all reasonable assistance, at Our expense. If We receive information regarding an infringement, misappropriation or other claim We may in Our discretion, and at no cost to you (i) modify the Services, so that they no longer infringe, misappropriate or give rise to any other claim, without breaching Our warranties under Section “Our Warranties”, (ii) obtain a license for Your continued use of the subject Services in accordance with this Agreement, or (iii) terminate Your Subscription(s) for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the Subscription Term of the terminated Subscriptions. We shall have no obligation to indemnify You to the extent any Claim Against You arises from Your breach of the terms of this Agreement or as a result of force majeure events under application Sections of this Agreement.
Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense. In the event We receive information regarding an actual or potential Claim Against Us, We may, in Our discretion, require You to immediately, upon receipt of notice from Us, delete or permit Us to delete from the Services, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third party claimant.
Exclusive Remedy. This Section “Mutual Indemnification” states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

12. LIMITATION OF LIABILITY

Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION “FEES AND PAYMENT FOR PURCHASED SERVICES”.
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOST BUSINESS OR LOST SAVINGS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. NOTICES, GOVERNING LAW AND JURISDICTION

Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Billing-related notices to You shall be addressed to the relevant billing contact designated by You, and Legal Notices to You shall be addressed to You and be clearly identified as Legal Notices. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
Agreement to Governing Law and Jurisdiction. All questions concerning the validity, operation, interpretation, and construction of this Agreement and any applicable Order Form shall be governed by and determined in accordance with the laws of the State of New Jersey without giving effect to its choice of law provisions. Each party agrees to the personal and subject matter jurisdiction of the Superior Court of the State of New Jersey without giving effect to its choice of law provisions. Any action or litigation in any way arising out of or related to this Agreement or any applicable Order Form(s) shall be brought and determined in the Superior Court of New Jersey, Mercer County, which shall have sole and exclusive jurisdiction for any such action or litigation, except as may be expressly determined otherwise by the mutual consent of the parties.
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14. GENERAL PROVISIONS

Export Compliance. The Services, the User Documentation, other technology We make available, and any portions or derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.
Independent Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party, by virtue of this Agreement or any Order Form, is authorized to act as an agent or legal representative of the other party. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party or to bind such other party in any manner.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Party Employees, Taxes, No Employment Agreement. By virtue of the independent relationship of the parties, employees of each respective party shall not be eligible for any employee benefits of the other party, nor will either party make deductions for any fees due hereunder for taxes or any other employee-based withholdings, the payment of which to any and all applicable taxing authorities shall be each party’s sole and exclusive responsibility. Each party agrees to indemnify and hold the other party harmless from any liability for, or assessment of, any such taxes imposed on the first party by any relevant taxing authority for which said first party is responsible.
Waiver. No waiver of any provision of this Agreement or any Order Form hereunder, or of any right or obligation of either party under this Agreement or any Order Form hereunder, shall be effective unless set forth in a writing signed by an authorized representative of the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
Severability. In the event that any provision of any of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The remainder of this Agreement shall remain valid and enforceable according to its terms.
Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section “Invoicing and Payment”.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Successors and Assigns. Subject to this Section “General Provisions”, the Strasz Agreements shall be binding upon and inure to the benefit of each of the Parties to the Agreements and their respective successors and permitted assigns.
Entire Agreement. This Agreement is the entire agreement between You and Us regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your other documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail.
Your Tax Responsibility. You shall be responsible for and agree to pay all applicable tax due (and any related interest and penalties), as a result of any income or revenue received, in any form, as a result of or in exchange for providing or administering any test, assessment, exam, etc., to Users of the Services or as a result of any income or revenue received, in any form, on any of Your business and operations (collectively, the “Your Operations”), and furthermore, You agree that all fees paid to Us this Agreement or any Order Form(s) shall not be reduced or offset by any taxes paid or due as a result of Your Operations. That is, You may not deduct from any fees due and payable to Us under this Agreement or any Order Form the amount of any tax due and/or paid by You as a result of Your Operations.
Our Tax Responsibility. We shall be responsible for and agree to pay all applicable sales, use, value-added or similar taxes or duties, however designated, which are levied or based upon any fees paid by You to Us under this Agreement and any Order Form thereto, but we shall not be obligated or responsible for withholding or payment of any taxes due and payable by You under Section 14.11 or any other tax in which You are legally responsible for the payment thereof.