ComplianceMetrix Inc. End User Subscription TERMS
Last Updated: June 7, 2022
These End User Subscription Terms (the “Agreement”) is entered into by and between ComplianceMetrix (CMX), INC. a Delaware limited liability company, with offices at 4180 La Jolla Village Drive, Suite 570, La Jolla, California 92037 (“Company”) and the individual or entity placing an order for or accessing the Services ( “Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below, and any ordering documents, online registration, or order confirmations referencing this Agreement. No waiver, alteration, or modification of any of the provisions hereof shall be binding on CMX (or the Reseller, if applicable) unless made in writing and signed by an authorized representative of CMX (or the Reseller, if applicable). CMX’s (or, if applicable, its Reseller’s) provision of the Services, and Customer’s access to the Services is conditional upon Customer’s acceptance of this Agreement. If you are an employee or agent of an employer and are entering into this Agreement to obtain the Services for use by you and/or the employer for which you work, you hereby represent that you have the authority to bind the employer to the terms and conditions of this Agreement.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Agreement available through the Services and will update the “Last Updated” date at the top of the Agreement. Unless otherwise communicated to you, any updated Agreement shall become effective immediately upon posting. Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) to this Agreement, you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT AGREEMENT.
- Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Affiliate” means, with respect to party, any person or entity that, at any time during the term of this Agreement, directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of this Section 1.1, “control” means ownership of fifty percent (50%) or more of the voting power of the outstanding voting securities (but only as long as such person or entity meets these requirements).
- “CMX” means Company and all its Affiliates, including without limitation, ComplianceMetrix (CMX), INC..
- “Content” means, without limitation, any and all information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.
- “Customer Content” means any Content provided, imported or uploaded to, or otherwise used by or on behalf of Customer with the Services. Customer Content excludes any Usage Data.
- “Documentation” means the specifications and functional requirements published by CMX (or the Reseller, if applicable) for the Services and provided to Customer in either electronic, online help files or hard copy format. Marketing materials shall not be considered Documentation hereunder.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Reseller” means, if applicable, the CMX authorized Reseller from whom Customer has purchased a subscription to the CMX Services (or rebranded CMX Services if applicable).
- “Sensitive Data” means any of the following: (i) patient, medical, health insurance, or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar state, federal, or industry laws; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”) (iii) social security numbers, driver’s license numbers, or other government ID numbers; (iv) any information deemed to be special categories of data as set forth in Article 9 of the EU General Data Protection Regulation or similar laws; or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, the Children’s Online Privacy Protection Act or similar foreign or domestic laws.
- “Services” means the on-line service delivered by CMX to Customer using the Software hosted by Licensor and as made available by Licensor through the access methods described in this Agreement.
- “Software” means CMX’s proprietary computer software programs, including any updates and new releases thereto, made available to you through the Services.
- “Third Party Content” means any Content that is either (a) provided by third parties (including other customers of the Services) to the Services; or (b) made available on third party websites and linked to on the Services.
- Intellectual Property.
- Access. Subject to the terms and conditions of this Agreement, including without limitation, the continuous and timely payment of the fees owed by Customer to CMX (or the Reseller, if applicable) hereunder, CMX grants to Customer a limited, non-exclusive, non-sublicenseable, non-transferable right during the Term, solely for Customer’s internal business purposes, to use the Services in accordance with the Documentation. Customer shall not: (i) permit any party to access and/or use the Services; (ii) rent, lease, loan, or sell access to the Services; (iii) interfere with, disrupt, alter, translate, or modify the Services or any part thereof, or create an undue burden on the Services or the networks or services connected to the Services, including without limitation, the external websites that contain Third Party Content and that are linked to on the Services; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (v) without CMX’s express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Services; (vi) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof; or (vii) cover or obscure any page or part of the Services via HTML/CSS, scripting, or any other means, if any. Customer shall comply with all applicable laws and regulations in its use of the Services.
- Usernames and Passwords. CMX (or the Reseller, if applicable) will provide you a unique username and password to enable you to access the Services pursuant to this Agreement. CMX (or the Reseller, if applicable) reserves the right to change or update these username and passwords in its sole discretion from time to time. Your username and password may only be used to access the Services during one (1) concurrent login session and shall comply with CMX’s then-current policies and/or security requirements regarding usernames and passwords (collectively, “CMX Security Requirements”). Customer acknowledges and agrees that only Customer entitled to access the Services with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of its username and password, and is solely responsible for all activities that occur under these usernames. Customer agrees to notify CMX (or the Reseller, if applicable) promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Notwithstanding anything contained herein to the contrary, if you request to be permitted to deviate from the CMX Security Requirements, then CMX’s agreement to such request (if applicable) is conditioned upon CMX not being responsible for any unauthorized access and/or use of the Services by someone using a username and/or password that is not in strict compliance with the CMX Security Requirements (each a “Noncompliant Username/Password”). Accordingly, you hereby accept all responsibility for the use of any Noncompliant Username/Password and hereby release, discharge and waive all causes of action or other claims, including without limitation, all damages, liabilities judgments, costs and expenses, arising out or related to any Noncompliant Username/Password, including without limitation, any unauthorized access and/or use of the Services by someone using a Noncompliant Username/Password
- IP Ownership. The Services and all Intellectual Property Rights in the Services are the exclusive property of CMX. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services and Software, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software. All rights not expressly granted to Customer are reserved to CMX.
- Customer Content and Emails.
3.2 No Sensitive Data. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Data. Customer acknowledges that CMX is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are not compliant with HIPAA or PCI-DSS. CMX shall have no liability under this Agreement for Sensitive Data, notwithstanding anything to the contrary herein.
3.3 Customer Emails. If you enable the Services to allow email correspondence (including attachments) to be sent outside of the Services (“Customer Emails”), you acknowledge that CMX has absolutely no control over the content, format, or legality of Customer Emails or the email addresses to which Customer Emails are sent. Accordingly, you hereby accept all responsibility for Customer Emails and hereby release, discharge and waive all causes of action or other claims, including without limitation, all damages, liabilities judgments, costs and expenses, arising out or related to any Customer Emails, including, without limitation, the use or publication of any content contained in any Customer Emails.
- Third Party Content. CMX makes no representations or warranties regarding any Third Party Content found on or through the Services or that is otherwise available using the Services. Customer represents and warrants that any Third Party Content that it uses or has access to shall not be copied, altered, or redistributed by Customer without the prior written consent of the owner of such Third Party Content.
- Warranty Disclaimer
- Performance. CMX warrants that the Services, when used as permitted by CMX and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Except as set forth in any Service Level Agreement executed in writing between Customer and CMX, CMX will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reproducible error in the Services reported to CMX (or the Reseller, if applicable, and then by the Reseller to CMX) by Customer in writing during the subscription term.
- Disclaimer. Except as set forth in Section 6.1, the Services are provided “As-Is” and as available and CMX makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of merchantability, title, noninfringement, or fitness for a particular purpose.
- Limitation of Liability. In no event shall CMX, (and the Reseller, if applicable), or its suppliers be liable to Customer for any special, indirect, incidental or consequential damages, including damages or costs due to loss of profits, data, use or goodwill, personal or property damage resulting from or in connection with CMX’s performance hereunder or the use, misuse, or inability to use the Services or other products or services hereunder. the maximum liability of CMX (and the Reseller, if Applicable) arising out of or in any way connected to this Agreement shall not exceed the fees paid by Customer to CMX (or the Reseller, if Applicable) during the six (6) months preceding the claim. The existence of one or more claims under this Agreement will not increase CMX’s liability.
- Indemnification. Customer will defend at its expense any suit brought against CMX, (and the Reseller, if applicable), and will pay any settlement Customer makes or approves or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party based upon, resulting from or related to: (a) Customer’s use of the Services; (b) any improper or unauthorized use of the Services by Customer; or (c) repeat infringement of copyright, irrespective of whether Customer cures such infringement.
- Term And Termination. This Agreement shall automatically expire at the end of the applicable subscription term. CMX may terminate your subscription and this Agreement immediately if you are in material breach of any term or condition of this Agreement. Without limiting the foregoing, CMX may suspend your access to and use of the Services immediately if CMX has not timely received all applicable fees. Upon termination or expiration of this Agreement for any reason, all rights granted by CMX to you in this Agreement will immediately cease to exist and you must discontinue all use of the Services and Software. Upon termination or expiration of this Agreement for any reason all rights and obligations of both parties, including all licenses granted to Customer hereunder, shall immediately terminate. Sections 1, 2.3, 3-8 and 10 will survive expiration or termination of this Agreement for any reason.
- Customer’s use of the Services shall be in accordance with this Agreement, all applicable laws and the terms of any Terms & Conditions, subscription agreement, statement of work, or other agreement between CMX and your employer relating to the Services (the “Master Terms”). In the event of any direct conflict between this Agreement and the Master Terms, the terms of this Agreement shall govern. To the extent that CMX has access to or processes any Customer Personal Data, CMX shall comply with the terms of Data Processing Addendum.
- Governing Law and Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California without giving effect to any conflicts of laws principles that require the application of the law of a different state. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in the county in California where CMX has its primary office for any lawsuit filed there against Customer by CMX arising from or related to this Agreement.
- Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- No Assignment. This Agreement, and Customer’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without CMX’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. CMX may freely assign this Agreement. The terms of this Agreement shall be binding upon assignees.
- Force Majeure. CMX shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond its reasonable control.
- Independent Contractors. Customer’s relationship to CMX is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of CMX