The Continuum GRC Sample Subscription Agreement Terms

Updated December 1, 2022

This Continuum GRC Agreement (“Agreement”), effective as of the date of Client’s signature on the Subscription Agreement (“Effective Date”), is made by and between Continuum GRC, Inc, an Arizona corporation having a place of business at 27743 N. 70th Street, Suite 100, Scottsdale, AZ 85266, and Client. “Continuum GRC” means Continuum GRC, Inc. and its affiliates and subsidiaries. “Client” means the client set forth on the Subscription Agreement. “Party” means Continuum GRC or Client. “Parties” means Continuum GRC and Client collectively.

Terms

The Parties agree as follows:

1. Definitions

Defined terms shall have the meanings set forth in this Agreement.

• Entity: The definition of Entity is a thing with distinct and independent existence. To Continuum GRC, this would be the equivalent of one or more system users organized within the system Entity feature. Individuals, Teams, Groups, Clients, Companies, Departments, Units, or other designations representing a grouping would be classified as an Entity.

2. Ordering Procedure

Continuum GRC will furnish to Client and Client will pay for Continuum GRC software (“Software”), subscription(s), including application services and payment services (“Subscription” or “Application Services”), support and maintenance (“Maintenance”), and other professional, consulting or training services (“Services”) detailed in the applicable Subscription Agreement (“Subscription Agreement”). Software, Subscriptions, Maintenance, and Services are each individually a “Continuum GRC Solution” and collectively “Continuum GRC.” The Subscription Agreement along with its attachments, which may include a statement of work (“SOW”), constitutes the complete and entire Agreement, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. In the event of any conflict among the terms of this Agreement, a Subscription Agreement, or a SOW, the following order of precedence shall apply: (1) Subscription Agreement; (2) Agreement; (3) SOW.

3. Fees, Expenses, and Payment 
   1. Fees, Duties, and Taxes. Fees are described in the applicable Subscription Agreement. Such fees are exclusive of all duties and taxes imposed on the provision of goods and services (“Taxes”). Unless Client provides Continuum GRC with a valid tax exemption certificate on or before the Effective Date of this Agreement, Client will be responsible for all Taxes. Client shall maintain a current tax exemption certificate on file with Continuum GRC and promptly notify Continuum GRC if Client’s tax status changes.
   2. Client shall reimburse Continuum GRC for all reasonable and necessary travel and living expenses Continuum GRC incurs performing Services, all such expenses to be approved in advance in writing by Client and incurred pursuant to Continuum GRC’s then-current travel policy. All project-related travel will be noted in the project plan prepared by the Continuum GRC project manager in collaboration with Client project manager. The acceptance of the project plan deliverable will serve as advance approval of project-related travel expenses rather than explicit estimates (hotel, airfare, meals, etc.) for each planned travel activity. Continuum GRC and Client project managers will review and approve in advance any other required travel not included in the project plan.
   3. Initial invoices for Software, Subscriptions, and Maintenance will be issued immediately following Subscription Agreement signature. All other invoices will be issued as follows: (i) invoices for Services will be issued in accordance with the applicable SOW; (ii) renewal invoices for Subscriptions and Maintenance will be issued at least thirty (30) days prior to the start of the renewal term.
   4. Payments and Late Payments. Payment is due upon receipt of invoice date and all payments must be made without deduction or offset, except for those amounts for which there is a good faith dispute. Renewal invoices are due within thirty (30) days of invoice date. All payments are non-refundable (except as set forth in Section 8 (a), Patent and Copyright Infringement). All invoices shall be deemed final and binding unless Client notifies Continuum GRC in writing of any alleged discrepancies no later than fifteen (15) days from the date of such invoice. Continuum GRC reserves the right to invoice Client the lesser of 1.5% per month or the highest interest rate allowable under applicable laws for any outstanding invoice (other than those under good faith dispute) not paid within thirty (30) days after receipt. You will also be assessed a late fee equal to five percent (5%) of the balance due. You agree that we may also, at our discretion, revoke any certifications you have received from us and notify third parties that your certifications have been revoked. We may also limit and/or cancel your use of any of our software and cease providing any applicable support services. In the event we must hire an attorney to collect any amounts due hereunder, whether pre-litigation or post litigation, you agree to pay us the actual attorneys’ fees, as well as any taxable and non-taxable costs, incurred in initiating and pursuing these collection activities. If Continuum GRC shall be found liable for any losses or damages that you have sustained, our liability shall be limited to the total annual amount of fees actually paid by you to us under this Agreement.
4. Confidential Information 
   1. “Confidential Information” means (i) all information disclosed by the Owner to the Recipient orally, electronically, visually or in a tangible form which is either (a) marked as “confidential” (or with a similar legend), (b) is identified at the time of disclosure as being confidential, or (c) by its nature should be reasonably understood to be confidential or proprietary; and (ii) the terms of this Agreement, Subscription Agreement(s), SOW(s), and any proposals or other documents that preceded this Agreement. Confidential Information includes the Parties’ pricing, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, donor, prospect, donation information, employee information, financial information, confidential information concerning Owner’s business or organization, information concerning any of Owner’s past, current, or possible future products or methods, and information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and software. “Owner” means the Party providing Confidential Information to the Recipient. “Recipient” means the Party receiving Confidential Information from the Owner.
   2. Ownership of Confidential Information. Recipient shall not obtain any rights, title, or interest in any Confidential Information of Owner.
   3. Treatment of Confidential Information. 
      1. Recipient shall only (i) use Owner’s Confidential Information to carry out the purposes of this Agreement; and (ii) disclose Owner’s Confidential Information to those third parties operating under written non-disclosure provisions or fiduciary obligations no less restrictive than those set forth in this Section 4 and who have a “need to know” based on reasonable business justifications. Each Party shall protect the other Party’s Confidential Information using the same degree of care it uses to protect its own confidential and proprietary information, but in any case, not less than reasonable care, and shall protect the other Party’s Confidential Information in accordance with applicable laws.
      2. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either Party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to any Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided Recipient promptly gives notice to Owner of such disclosure (to the extent legally permissible) and undertakes reasonable efforts to limit such disclosure.

• Upon termination of this Agreement or upon written request, Recipient shall return or destroy, at the disclosing Party’s election, any and all Owner Confidential Information in its possession or control, to the extent commercially reasonably technologically feasible. If return or destruction of all or part of Owner’s Confidential Information is not commercially reasonably technologically feasible, Recipient agrees (a) not to use or disclose any of Owner’s Confidential Information that remains in its possession or control following termination; and (b) to continue to protect all such Confidential Information in accordance with this Agreement until it is destroyed pursuant to Recipient’s information management practices.

5. Access and Use rights 
   1. Subscription Access. Continuum GRC grants to Client, and Client accepts, a non-assignable, non-transferable, non-sublicensable, and non-exclusive right to access the Subscription and use the Subscription and the applicable manuals and documentation that Continuum GRC generally provides or makes available for Continuum GRC (“Documentation”) solely for the furtherance of Client’s internal business purposes during the Subscription term set forth on the Subscription Agreement. Subscriptions will not be provided to Client on any form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. During the Subscription term Continuum GRC shall provide Client with secure access to the latest supported version of the Subscription, to be accessed and used by Client through the use of the Internet. Continuum GRC shall provide Client with administrator rights permitting secure administrator access and allowing the administrator to create other users for access to the Subscription. Client agrees that it has elected to access the Continuum GRC offering through a Subscription and that this Agreement confers no right to convert the Subscription to a License as described in Section 5(b). Client’s use of the Subscription is subject to the scope of the use provisions above, and unless otherwise expressly set forth in a Subscription Agreement, Client shall not share Subscriptions with subsidiaries or affiliates without the express written agreement of Continuum GRC and Client’s payment of additional applicable Subscription fees.
   2. Software License Grant and Termination. Continuum GRC grants to Client, and Client accepts, a non-transferable, non-assignable, non-sublicensable, non-exclusive, and perpetual (subject to the termination provisions below) license to use one (1) copy of the Software in machine readable object code form only (“License”). The License includes the right to use the applicable Documentation solely for the furtherance of Client’s internal business purposes. The License extends to the computer program delivered by Continuum GRC and updates provided by Continuum GRC pursuant to Client’s continued enrollment in Maintenance and, where applicable, applications created by or on behalf of Client utilizing the Application Programming Interface, Software Development Kit, or other designated development aid or Application contained in the Software (“Continuum GRC SaaS”). Client may only install and use the Software (i) in accordance with Section 5(e), System Requirements, and (ii) in a manner that ensures that Client’s simultaneous use of and access to the Software will be limited as set forth in the applicable Subscription Agreement. Client’s use of the Software is subject to the scope of the use provisions above, and unless otherwise expressly set forth in a Subscription Agreement, Client shall not share Licenses with subsidiaries or affiliates without the express written agreement of Continuum GRC and Client’s payment of additional license fees. The License is effective in perpetuity unless terminated pursuant to this Section 5(b). Client may terminate a License at any time by providing written notice to Continuum GRC. Continuum GRC shall have the right to terminate a License by providing written notice to Client (i) upon Client’s failure to pay when due any invoices issued pursuant to this Agreement, provided that Continuum GRC has given Client at least five (5) days prior notice of Continuum GRC’s intention to terminate the License and Client fails to pay the invoice during that five (5) day period, (ii) upon Client’s failure to cure a material default pursuant to Section 15(b), or (iii) if Continuum GRC is unable, using commercially reasonable efforts, to obtain the right for Client to continue using the Software if the Software becomes the subject of an infringement claim for which Continuum GRC is indemnifying Client pursuant to Section 8 below. Within fifteen (15) days of the effective date of termination of a License Client, upon request shall certify in writing to Continuum GRC that it has discontinued use of and destroyed or erased all copies of the Software to the extent such destruction and erasure is commercially reasonably technologically feasible.
   3. Subscriptions and Maintenance. Unless cancelled in accordance with this Section 5(c), Subscriptions and Maintenance shall be instantiated for twelve contiguous months, and then perpetually renew each month thereafter following the initial term set forth in this agreement upon mutual agreement. Continuum GRC agrees to return any pre-paid fees to Client for Services that have not been provided upon cancellation of the Agreement for any reason. Cancellations will become effective as of the final day of the then-current term. Reinstatement of a lapsed Subscription or Maintenance requires full payment of fees that would have been due from the expiration of the last active term through the reinstatement date.
   4. Continuum GRC (i) contain trade secret and proprietary information owned by Continuum GRC or its third party licensors and (ii) are protected by United States and international copyright laws and trade provisions. Except for copies as may be required by Client for backup or archival purposes, Client may not disclose, copy, transfer or transmit Continuum GRC for any purpose. All permitted copies of Continuum GRC must retain Continuum GRC’s copyright and other proprietary notices and be identified as Continuum GRC.
   5. Confidential Information. Client agrees that all right, title, and interest in and to Continuum GRC remains with Continuum GRC and its third party licensors.
   6. System Requirements. Certain Continuum GRC may only be used or accessed from Client’s computer systems that meet the Continuum GRC system requirements published at https://continuumgrc.com/system-requirements/, which Client acknowledges it has reviewed.
   7. Suspension; Master subscription agreement. Continuum GRC may suspend Client’s use of or access to Continuum GRC upon written notice to Client (i) in response to Client’s failure to pay when due any invoices issued pursuant to this Agreement, provided that Continuum GRC has given Client at least five (5) days prior notice of Continuum GRC’s intention to suspend the Continuum GRC Solution and Client fails to pay the invoice during that five (5) day period, or (ii) in response to a violation by Client of the master subscription agreement posted at: https://continuumgrc.com/master-subscription-agreement/ (“MSA”). Continuum GRC will lift any payment-related suspension promptly following Client’s payment of the invoice on which the suspension is based. When exercising its right to suspend a Continuum GRC Solution for a breach of the MSA, Continuum GRC will respond in a manner proportionate to the severity of the violation (e.g., when a single user has breached the MSA, by suspending Subscription access to the user rather than suspending all users or Continuum GRC). With respect to any suspension, Continuum GRC and Client agree to work together in good faith to address the violation in a reasonable manner, to prevent similar violations in the future, and to reinstate the suspended Continuum GRC Solution as quickly as possible.
6. Security

Continuum GRC has implemented and will maintain administrative, physical and technical safeguards designed to: (i) protect against anticipated threats or hazards to the security of Client Confidential Information; and (ii) protect against unauthorized access to or use of Client Confidential Information that could materially harm any Client. Continuum GRC’s technical safeguards include: firewalls, malware and intrusion detection, and two-factor authentication protocols. Continuum GRC reserves the right, in its sole discretion, to change or modify its safeguards at any time. Client understands that Continuum GRC include sending email and publishing web-pages over the public internet using SMTP or HTTP protocols, and that these standard protocols do not support many enhanced data security protections. In no case will the use of the public internet in this manner be deemed to violate Continuum GRC’s obligations under this Agreement. Continuum GRC reserves the right, in its sole discretion, to change or modify its data security program at any time, but at all times will maintain no less than commercially reasonable database security in compliance with the requirements set forth herein. Client shall take commercially reasonable security precautions to prevent unauthorized or fraudulent use of Continuum GRC by Client, Client’s employees, agents or any other third parties.

7. Client Obligations 
   1. Client Control. Client shall be solely responsible for administering and monitoring the use of login IDs and passwords by its administrators, examiners and users. Upon the termination of employment or relationship of any such Client administrator, examiner or user Client will immediately terminate access by the login ID and password of that individual to Continuum GRC. Client shall be responsible for using commercially reasonable practices to protect Client Confidential Information it shares with Continuum GRC. Continuum GRC is not responsible for any damages resulting from Client’s failure to manage the confidentiality of its login ID and passwords.
   2. Prohibited Uses. Client shall not modify, share, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, or reverse engineer Continuum GRC, except as explicitly permitted hereunder. Unless otherwise expressly set forth in a Subscription Agreement, Continuum GRC shall be used solely by Client, and not (by implication or otherwise) by any subsidiary or affiliate of Client. In addition, Client shall not use Continuum GRC for any benchmarking or competitive purposes. Client shall not: (i) send or store material containing contraband, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from Continuum GRC; ii) interfere with or disrupt the integrity or performance of Continuum GRC, or the data contained therein; (iii) use Continuum GRC in a manner inconsistent with applicable Documentation; or (d) attempt to gain unauthorized access to Continuum GRC or related systems or networks.
8. Indemnity 
   1. Patent and Copyright Indemnity. 
      1. Continuum GRC shall indemnify and defend and hold harmless Client and its corporate parent, affiliates, subsidiaries, officers, directors, employees, agents, assigns and successors (each, a “Client Indemnitee”) against any third party claims that Continuum GRC as delivered or made available to Client infringe any United States patent, trademark, or copyright owned by such third party. Continuum GRC shall, in its reasonable judgment and at its option and sole expense: (a) obtain for Client the right to continue using the affected Continuum GRC Solution; (b) replace or modify the Continuum GRC Solution so that it becomes non-infringing while giving equivalent performance; or (c) if Continuum GRC cannot obtain the remedies in (a) or (b), as its sole obligation, terminate the License or access to the infringing Continuum GRC Solution and refund any pre-paid Subscription or Maintenance fees related to such Continuum GRC Solution.
      2. Notwithstanding Section 8(a)(i), Continuum GRC shall have no liability to indemnify and defend and hold harmless Client Indemnitees to the extent (a) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client (other than Continuum GRC); (b) the alleged infringement is the result of a modification made by anyone other than Continuum GRC; or (c) Client uses the Continuum GRC Solution other than in accordance with this Agreement, any Documentation or any delivered Documentation under a SOW(s).

• This Section states the entire liability of Continuum GRC with respect to any type of infringement claim described in Section 8.a.

1. Client Indemnity. Client shall indemnify and defend and hold harmless Continuum GRC from and against any third party claim arising from Client’s breach of the MSA or Section 7, Client Obligations.
2. Mutual Indemnity. Each Party shall indemnify and defend and hold harmless the other Party against any third party claims (i) arising from the indemnifying Party’s gross negligence or willful misconduct and (ii) to the extent arising directly from Party’s breach of its obligations under Section 6 of the Agreement.
3. Indemnification Procedures. The indemnified Party shall give the indemnifying Party prompt written notice of any claims for indemnification and the indemnified Party agrees to relinquish control of defending any such claim to the indemnifying Party, including the right to settle; provided however, that the defense counsel selected will be reasonably acceptable to the indemnified Party and the indemnifying Party will not settle any such suit or claim without the indemnified Party’s prior written consent if such settlement would be adverse to the indemnified Party’s interests.

9. Representations, Warranties, and Disclaimer 
   1. Mutual Representations and Warranties. Each Party represents and warrants that (i) it has the right and power to enter into this Agreement, (ii) an authorized representative has accepted this Agreement, and (iii) it will comply with all applicable laws and regulations pertaining to each Party’s respective obligations under and performance of this Agreement.
   2. Continuum GRC Warranties. 
      1. Services. Continuum GRC warrants that the Services will be free of material defects, be performed in a professional and workmanlike manner in accordance with this Agreement, and/or other licenses and/or specifications set forth or referenced in a Subscription Agreement or Statement of Work, industry standards. Deficiencies in the Services must be reported to Continuum GRC in writing within thirty (30) days of discovery of the alleged deficiency. Continuum GRC agrees and acknowledges that Client’s usage of Continuum GRC’s Customer Support tracking system to manage client cases is an acceptable method for such written report of deficiencies. The sole and exclusive remedy for breach of the Services warranty shall be re-performance of the deficient Services.
      2. Software and Subscriptions. Continuum GRC warrants that Software and Subscriptions will perform substantially in conformance with this Agreement, and/or other licenses and/or specifications set forth or referenced in a Subscription Agreement or Statement of Work, and the functional specifications in the then-current Documentation (provided that, in the case of Software, Client maintains active enrollment in Maintenance). This warranty does not apply if the Software or Subscription is not administered in accordance with the applicable instructions and training provided by Continuum GRC. If the Software or Subscription fails to operate as warranted in this Section and Client notifies Continuum GRC in writing of the nature of the non-conformance, Continuum GRC will use commercially reasonable efforts to promptly repair or replace the non-conforming Software or Subscription without charge. Except as otherwise provided herein, the foregoing provides Client’s sole and exclusive remedy for breach of this warranty.

• Disclaimer. Other than applications made by or on behalf of Client using the Continuum GRC SaaS and within the scope of Section 5(b), Software License Grant and Termination, any modifications that Client makes to Continuum GRC (other than those made by Continuum GRC at Client’s request, if any) will void any warranty obligations set forth in this Agreement as well as any Maintenance. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 9, CONTINUUM GRC EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER CONTINUUM GRC EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY.

10. Limitation of Liability 
    1. EXCEPT FOR , THIRD PARTY CLAIMS ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS IN SECTION 4, CONFIDENTIAL INFORMATION, THE OBLIGATIONS SET FORTH IN SECTION 8, AND CLIENT’S PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE GREATER OF [(X) $50,000 OR (Y) THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT FOR THE CONTINUUM GRC SOLUTION FROM WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. CONTINUUM GRC PRECEDING THE CLAIM.] IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
    2. Continuum GRC shall have no liability under this Agreement with respect to: (i) modifications to Continuum GRC created by or on behalf of Client (other than those made by Continuum GRC on behalf of client, if any); (ii) use of Continuum GRC by or on behalf of Client other than in accordance with this Agreement and the Documentation; (iii) combination use, failures or incompatibility caused by third party software or hardware not supplied by Continuum GRC; (iv) modifications to Continuum GRC other than those contemplated in Section 9(c), Disclaimer; (v) Client’s failure to timely install updates to Continuum GRC; or (vi) compliance with designs, plans or specifications furnished by or on behalf of Client.
11. Ownership 
    1. Client Ownership and License. Subject to the rights of Continuum GRC set forth below, Client has all right, title, and interest in and to all Client Confidential Information and all Client-provided artwork, logos, trade names, and trademarks (“Client Content”). Solely to the extent necessary for Continuum GRC and its agents to perform their obligations under this Agreement, Client grants to Continuum GRC and its suppliers a non-exclusive, non-transferable (except as provided herein), non-assignable (except as provided herein), fully paid-up license without right of sublicense (except as strictly required to enable Continuum GRC’s suppliers to perform subcontracted services for Continuum GRC provided to Client in accordance with this Agreement) to use, reproduce, store, modify, and, with respect to client websites created and/or managed by Continuum GRC, display, Client Confidential Information and Client Content, subject to the termination provisions herein.
    2. Continuum GRC Ownership and License. Subject to the rights of Client set forth above, Continuum GRC has all right, title, and interest in and to any expressions and results of Continuum GRC, the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, SaaS, applications, interfaces, enhancements, other technical information, and all derivatives of the foregoing created in connection with this Agreement (“Work Product”). Continuum GRC grants to Client a non-exclusive, fully paid-up license to use Work Product, solely to the extent necessary for Client and its end users to use Continuum GRC in accordance with this Agreement. If Client provides any feedback, comments, suggestions, ideas, requests, or recommendations for modifications or improvements to Continuum GRC (“Feedback”), Client hereby assigns all right, title, and interest in any such Feedback to Continuum GRC to be used for any purpose. All rights not expressly granted to Client hereunder are reserved by Continuum GRC.
    3. Client agrees that Continuum GRC may (i) aggregate de-identified benchmarking results of Client’s use of Continuum GRC solely with similar results of other clients’ use (collectively “Results”), and (ii) use and disclose the Results within Continuum GRC solely for any internal purpose, provided that the Results are not identifiable to any person or entity, do not individually identify Client, Client’s Confidential Information, or Client’s use of Continuum GRC.
12. Notice

Except as otherwise provided herein, all notices or other communications referenced under this Agreement shall be made in writing and, in the case of Continuum GRC, sent to the address designated above, or in the case of Client, sent to the address set forth on the Subscription Agreement, or as designated from time to time in writing by the Parties. All notices shall be deemed given to the other Party the following business day when delivered receipt confirmed using registered or certified first class mail; postage prepaid, or recognized courier delivery. Operational notices, such as those related to payments or renewals, may be delivered in any reasonable manner, including email.

13. Force Majeure

Neither Party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its reasonable control (each such cause, a “Force Majeure”). Any delay in performance due to Force Majeure will be excused for the duration of the event of Force Majeure and the obligations of the Parties will resume immediately upon written notice from the non-performing Party that it is again able to perform.

14. Dispute Resolution; Governing Law

Disputes and claims arising out of or related to this Agreement first will be submitted to senior management of both Parties for amicable resolution. If the Parties cannot settle the matter within sixty (60) days of a written request by either Party to begin dispute resolution proceedings hereunder, the dispute or claim shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules, with one (1) arbitrator appointed to conduct arbitration and arbitration taking place in a mutually agreed location. If the Parties cannot agree upon a hearing location by the date of the preliminary hearing held by the arbitrator, the arbitration will be held in Phoenix, Arizona. Any decision in arbitration shall be final and binding upon the Parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, either Party may sue in any court for infringement of its proprietary or intellectual property rights or to seek injunctive relief and Continuum GRC may sue in any court to collect unpaid amounts. CLIENT AND CONTINUUM GRC EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING UNDER OR RELATED TO THIS AGREEMENT. This Agreement shall be governed by the laws of the State of Arizona, excluding choice of law principles. The Parties agree to waive their right to file a class action, to seek relief on a class basis, or to pursue claims in any consolidated proceeding. The parties acknowledge that their consent to arbitrate is conditioned on the waiver in the preceding sentence (“Waiver”). If any court or arbitrator determines the Waiver is void or unenforceable or that an arbitration involving the parties can proceed on a class or consolidated basis, then the parties will be deemed to have not consented to arbitration.

15. Term and Termination 
    15. The term of this Agreement shall commence on the Effective Date and continue unless terminated in accordance with this Section 15.
    16. Unless otherwise specified in this Agreement, either Party may terminate this Agreement if the other Party materially defaults in performing its obligations under this Agreement and the default remains uncured for at least thirty (30) days following receipt of written notice from the non-defaulting Party. Upon written notice from either Party, this Agreement shall also terminate upon (i) the making of an assignment for the benefit of creditors by a Party, or (ii) the dissolution of a Party.
    17. Effect of Termination. Upon termination of this Agreement or termination of a Continuum GRC Solution, Continuum GRC may immediately cease providing any such terminated offering. Where Continuum GRC hosts Client’s database, Continuum GRC will provide an accessible electronic copy of such database to Client upon termination. To the extent an archive copy of Client’s database or Client Confidential Information was created by Continuum GRC during the course of performing its obligations under this Agreement and it is not commercially reasonably technologically feasible to destroy or return such archive copy, Client agrees that Continuum GRC may retain such copies following termination subject to this Agreement and Continuum GRC’s internal practices for record destruction. If this Agreement is terminated for any reason, Client shall nonetheless be obligated to pay Continuum GRC upon such termination any and all accrued and unpaid fees and expenses due and payable to Continuum GRC as of the date of termination.
16. Mutual Publicity

Except for disclosures required by law, each Party agrees not to issue a press release or public statement relating to this Agreement or its terms or use the other Party’s name, logo, or other identifying information unless in each case the other Party has provided prior written consent, which shall not be unreasonably withheld. Any such disclosures or uses of name, logos, and identifying information shall be in good taste, shall not be disparaging and shall uphold the professional standards and goodwill associated with the other Party. Each Party agrees that consent to use name, logos, and identifying information to positively promote the relationship on the Parties primary websites is permitted.

17. Statutory Exceptions

For clients who are qualified public educational or government institutions: Any part of this Agreement, such as, by way of example, all or part of the indemnification section, which may be invalid or unenforceable against Client because of applicable state or federal law, shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If required by law this Agreement will be governed by applicable state or federal law.

18. General

Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. No failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by a duly authorized representative of each Party. If any provision of this Agreement is held to be unenforceable, the other provisions shall remain in full force and effect. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any attached or referenced document shall add to or vary the terms of this Agreement. All proposed modifications, variations, edits, or additions to this Agreement, Subscription Agreement(s) or SOW(s) are objected to and deemed material unless otherwise mutually agreed to in writing. Subscription Agreements may be executed in counterparts, which together form one legal instrument. An executed copy of a Subscription Agreement made by reliable means shall be considered an original. Either Party may assign its rights or obligations under this Agreement with the non-assigning Party’s prior written consent, such consent not to be unreasonably withheld, provided, however, that either Party may assign its rights and obligations in connection with a change of control without the other Party’s consent. Except as explicitly stated in this Agreement, nothing in this Agreement is intended to confer on third party any right, benefit or remedy of any nature. Continuum GRC performs its obligations under this Agreement as an independent contractor, not as an employee of Client. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Client and Continuum GRC. During the term of this Agreement and for a period of one (1) year thereafter, neither Party shall, without the other Party’s prior written consent, directly or indirectly solicit for employment, hire or retain the services of any former or current employees or subcontractors of the other Party of which such Party became aware or with whom such Party came into contact during its performance of its obligations under this Agreement, provided however, that the solicitation or hiring of individuals responding to a general public advertisement for employment or recruiting events shall not be a violation of this provision. Any provision of this Agreement that contemplates performance or observance subsequent to termination of the Agreement, regardless of the date, cause or manner of such termination, shall survive such termination and shall continue in full force and effect.

Any provision of this Agreement that contemplates performance or observance subsequent to termination of the Agreement, regardless of the date, cause or manner of such termination, shall survive such termination and shall continue in full force and effect.

Continuum GRC will maintain, at its sole cost and expense, during the term of this Agreement the following insurance coverage:

1. a commercial general liability insurance policy with limits for bodily injury, property damage and products liability/completed operations coverage of not less than $1,000,000 per occurrence, with an aggregate limit of not less than $2,000,000, such policies to include contractual liability and contain no exclusion related to Continuum GRC’s compliance status with mandatory or voluntary safety standards of the United States of America;
2. an automobile liability insurance policy with limits not less than $1,000,000 combined single limit;
3. workers’ compensation insurance, including coverage for occupational disease, in the benefit amounts required by Applicable Law, and employer’s liability insurance, with a limit of liability not less than $1,000,000 per accident; and
4. professional liability – errors and omissions insurance with limits not less than $2,000,000 per occurrence and an aggregate limit of not less than $5,000,000.

All insurance will be maintained with insurance companies authorized by law to conduct business in the United States of America with the financial rating of at least A-VII status, as rated in the most recent edition of Best’s Insurance Reports. Continuum GRC will provide to Client a certificate of insurance or similar binder for each policy evidencing compliance with this Agreement upon execution of this Agreement, and upon ten (10) days of written request from Client. Continuum GRC will send such certificates or binders to Client’s designated point of contact. The insurance coverage provided for in this Agreement will not act to limit Continuum GRC’s liability under this Agreement.

Client has accepted this Agreement by the signing of the Subscription Agreement by a duly authorized officer or officer representative.

 

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