Disclaimer
This is a sample only. It does not create any requirements, obligations, liability, or responsibility. Continuum GRC reserves the right to modify these terms at any time without notice.
Terms
The Parties agree as follows:
1. Definitions
Defined terms have the meanings set forth in this Agreement.
- Entity: A thing with distinct and independent existence. Within Continuum GRC, an Entity consists of one or more system users organized under the Entity feature. Individuals, Teams, Groups, Clients, Companies, Departments, Units, or other groupings are classified as Entities.
2. Ordering Procedure
Continuum GRC will furnish, and Client will pay for, Continuum GRC software (“Software”), subscription(s) including application and payment services (“Subscription” or “Application Services”), support and maintenance (“Maintenance”), and professional, consulting, or training services (“Services”) as detailed in the applicable Subscription Agreement (“Subscription Agreement”).
Software, Subscriptions, Maintenance, and Services are each a “Continuum GRC Solution” and collectively “Continuum GRC.”
The Subscription Agreement, together with its attachments (which may include a Statement of Work or “SOW”), constitutes the complete and entire agreement and supersedes all prior or contemporaneous oral or written agreements on the subject matter. In the event of conflict, the following order of precedence applies: (1) Subscription Agreement; (2) this Agreement; (3) SOW.
3. Fees, Expenses, and Payment
3.1 Fees, Duties, and Taxes. Fees are set forth in the applicable Subscription Agreement and 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, Client is responsible for all Taxes. Client must maintain a current tax exemption certificate on file and promptly notify Continuum GRC of any change in tax status.
3.2 Reimbursement for Expenses. Client shall reimburse Continuum GRC for all reasonable and necessary travel and living expenses incurred in performing Services, provided such expenses are approved in advance in writing by Client and incurred in accordance with Continuum GRC’s then-current travel policy. Project-related travel will be identified in the project plan prepared jointly by the Continuum GRC and Client project managers. Acceptance of the project plan constitutes advance approval of those expenses. Any other travel requires prior review and approval by both project managers.
3.3 Invoicing. Initial invoices for Software, Subscriptions, and Maintenance will be issued immediately upon signature of the Subscription Agreement. All other invoices will be issued as follows: (i) Services invoices in accordance with the applicable SOW; (ii) Renewal invoices for Subscriptions and Maintenance at least thirty (30) days prior to the start of the renewal term.
3.4 Payments and Late Payments. Payment is due upon receipt of the invoice. All payments must be made without deduction or offset, except for amounts subject to a good-faith dispute. Renewal invoices are due within thirty (30) days of the invoice date. All payments are non-refundable except as expressly provided in the Patent and Copyright Infringement section.
All invoices are deemed final and binding unless Client notifies Continuum GRC in writing of any alleged discrepancy within fifteen (15) days of the invoice date. Continuum GRC may charge interest on any undisputed overdue amount at the lesser of 1.5% per month or the maximum rate permitted by law, plus a late fee equal to five percent (5%) of the balance due.
Continuum GRC may, at its discretion, revoke any certifications issued to Client and notify third parties of such revocation, limit or cancel Client’s use of the Software, and cease providing support services. Client agrees to pay Continuum GRC’s actual attorneys’ fees and costs incurred in collecting any amounts due. Continuum GRC’s total liability for any losses or damages under this Agreement is limited to the total annual fees actually paid by Client under this Agreement.
4. Confidential Information
4.1 Definition. “Confidential Information” means (i) all information disclosed by the Owner to the Recipient orally, electronically, visually, or in tangible form that is marked confidential (or with a similar legend), identified as confidential at the time of disclosure, or that by its nature should reasonably be understood to be confidential or proprietary; and (ii) the terms of this Agreement, any Subscription Agreement(s), SOW(s), and any related proposals or preceding documents. Confidential Information includes pricing, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, financial information, and information concerning the Owner’s business, products, methods, research, development, and operations.
“Owner” means the Party disclosing Confidential Information. “Recipient” means the Party receiving it.
4.2 Ownership. Recipient obtains no rights, title, or interest in the Owner’s Confidential Information.
4.3 Treatment. Recipient may use Owner’s Confidential Information only to carry out the purposes of this Agreement and may disclose it only to third parties bound by written non-disclosure or fiduciary obligations no less restrictive than those in this Section who have a legitimate need to know. Each Party shall protect the other Party’s Confidential Information with at least the same degree of care it uses to protect its own confidential information, and in no event less than reasonable care, and in accordance with applicable law.
This Agreement imposes no obligation with respect to Confidential Information that the Recipient can establish by legally sufficient evidence: (a) was already in its possession or rightfully known without confidentiality obligation prior to receipt; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained in good faith from a third party with the right to disclose it without confidentiality obligation; (d) is independently developed without use of individuals who had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided Recipient gives prompt notice to Owner (to the extent legally permitted) and makes reasonable efforts to limit the disclosure.
Upon termination of this Agreement or upon written request, Recipient shall return or destroy (at Owner’s election) all Owner Confidential Information in its possession or control, to the extent commercially reasonably technologically feasible. If return or destruction is not feasible, Recipient shall not use or disclose the remaining Confidential Information and shall continue to protect it until destroyed in accordance with Recipient’s information management practices.
5. Access and Use Rights
5.1 Subscription Access. Continuum GRC grants Client a non-assignable, non-transferable, non-sublicensable, non-exclusive right to access and use the Subscription and the applicable Documentation solely for Client’s internal business purposes during the Subscription term set forth in the Subscription Agreement. Subscriptions are not provided on any form of media and are not installed on Client-controlled equipment. Continuum GRC will provide secure Internet access to the latest supported version of the Subscription and administrator rights permitting the creation of additional users. Client acknowledges that it has elected a Subscription model and has no right to convert the Subscription to a License under Section 5.2. Client may not share Subscriptions with subsidiaries or affiliates without Continuum GRC’s prior written consent and payment of applicable additional fees.
5.2 Software License Grant and Termination. Continuum GRC grants Client a non-transferable, non-assignable, non-sublicensable, non-exclusive, perpetual (subject to termination) license to use one (1) copy of the Software in machine-readable object-code form only (“License”), together with the right to use the applicable Documentation for internal business purposes. The License covers the delivered program, updates provided under active Maintenance, and applications created by or for Client using designated Continuum GRC development tools. Use is limited as specified in the Subscription Agreement and must comply with published system requirements. Client may not share Licenses with subsidiaries or affiliates without prior written consent and payment of additional fees.
Client may terminate a License at any time by written notice. Continuum GRC may terminate a License upon written notice if: (i) Client fails to pay an invoice after five (5) days’ prior notice; (ii) Client fails to cure a material default; or (iii) Continuum GRC is unable, after commercially reasonable efforts, to secure continued use rights in the event of an indemnified infringement claim. Within fifteen (15) days of termination, Client shall, upon request, certify in writing that it has discontinued use and destroyed or erased all copies of the Software to the extent commercially reasonably technologically feasible.
5.3 Subscriptions and Maintenance. Unless cancelled in accordance with this Section, Subscriptions and Maintenance begin with a twelve-month initial term and thereafter renew monthly upon mutual agreement. Continuum GRC will refund any pre-paid fees for Services not provided upon cancellation. Cancellation becomes effective on the final day of the then-current term. Reinstatement of a lapsed Subscription or Maintenance requires payment of all fees that would have accrued from the end of the last active term through the reinstatement date.
5.4 Proprietary Nature. Continuum GRC Solutions contain trade secrets and proprietary information owned by Continuum GRC or its licensors and are protected by U.S. and international copyright and trade secret laws. Except for backup or archival copies, Client may not disclose, copy, transfer, or transmit Continuum GRC Solutions. All permitted copies must retain Continuum GRC’s proprietary notices.
5.5 System Requirements. Certain Continuum GRC Solutions may be used or accessed only from systems that meet the requirements published at continuumgrc.com/system-requirements/, which Client acknowledges having reviewed.
5.6 Suspension. Continuum GRC may suspend access upon written notice if Client fails to pay an invoice after five (5) days’ prior notice, or if Client violates the Master Subscription Agreement posted at continuumgrc.com/master-subscription-agreement/. Payment-related suspensions will be lifted promptly upon payment. Suspensions for MSA violations will be proportionate to the severity of the breach. The Parties will work in good faith to address the issue and reinstate access as quickly as possible.
6. Security
Continuum GRC maintains administrative, physical, and technical safeguards designed to protect against anticipated threats to the security of Client Confidential Information and against unauthorized access or use that could materially harm Client. Technical safeguards include firewalls, malware and intrusion detection, and multi-factor authentication. Continuum GRC may modify its safeguards at any time provided they remain commercially reasonable. Client acknowledges that Continuum GRC Solutions may transmit data over the public Internet using standard protocols and that such use does not violate Continuum GRC’s obligations. Client shall take commercially reasonable precautions to prevent unauthorized or fraudulent use of Continuum GRC Solutions.
7. Client Obligations
7.1 Client Control. Client is solely responsible for administering and monitoring login credentials. Upon termination of any administrator, examiner, or user relationship, Client must immediately revoke that individual’s access. Continuum GRC is not responsible for damages resulting from Client’s failure to manage credential confidentiality.
7.2 Prohibited Uses. Client shall not modify, share, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, create derivative works from, decompile, or reverse engineer Continuum GRC Solutions except as expressly permitted. Continuum GRC Solutions may be used only by Client (and not by subsidiaries or affiliates) unless otherwise agreed in writing. Client shall not use Continuum GRC Solutions for benchmarking or competitive purposes, introduce malicious code, interfere with system integrity or performance, use the Solutions inconsistently with the Documentation, or attempt unauthorized access to the Solutions or related systems.
8. Indemnity
8.1 Patent and Copyright Indemnity. Continuum GRC shall indemnify, defend, and hold harmless Client and its parent, affiliates, officers, directors, employees, agents, and successors against third-party claims that Continuum GRC Solutions as delivered infringe any U.S. patent, trademark, or copyright. Continuum GRC may, at its option and expense: (a) obtain the right for Client to continue using the affected Solution; (b) replace or modify the Solution so it becomes non-infringing while providing equivalent performance; or (c) if neither (a) nor (b) is reasonably available, terminate the License or access and refund any pre-paid fees attributable to the infringing Solution. Continuum GRC has no indemnity obligation to the extent the claim arises from Client-furnished materials, modifications by anyone other than Continuum GRC, or use outside the scope of this Agreement or the Documentation. This Section states Continuum GRC’s entire liability for the described infringement claims.
8.2 Client Indemnity. Client shall indemnify, defend, and hold harmless Continuum GRC against third-party claims arising from Client’s breach of the Master Subscription Agreement or Client Obligations under this Agreement.
8.3 Mutual Indemnity. Each Party shall indemnify the other against third-party claims arising from the indemnifying Party’s gross negligence or willful misconduct, or from breach of its obligations under the Confidential Information section.
8.4 Procedures. The indemnified Party shall give prompt written notice and relinquish control of the defense (including settlement) to the indemnifying Party, provided counsel is reasonably acceptable and no settlement adverse to the indemnified Party is made without its prior written consent.
9. Representations, Warranties, and Disclaimer
9.1 Mutual Representations. Each Party represents that it has the right and power to enter into this Agreement, that an authorized representative has accepted it, and that it will comply with all applicable laws relating to its obligations under this Agreement.
9.2 Continuum GRC Warranties. Continuum GRC warrants that Services will be free of material defects and performed in a professional and workmanlike manner consistent with this Agreement, any SOW, and industry standards. Deficiencies must be reported in writing within thirty (30) days of discovery (use of Continuum GRC’s support tracking system constitutes written notice). The sole remedy is re-performance of the deficient Services.
Continuum GRC warrants that Software and Subscriptions will perform substantially in accordance with this Agreement, the applicable Subscription Agreement or SOW, and the then-current Documentation (provided Client maintains active Maintenance for Software). This warranty does not apply if the Software or Subscription is not administered in accordance with Continuum GRC’s instructions. Continuum GRC will use commercially reasonable efforts to repair or replace non-conforming Software or Subscriptions without charge. This is Client’s sole and exclusive remedy for breach of this warranty.
Disclaimer. Except for the warranties expressly stated in this Section, Continuum GRC disclaims all other representations and warranties, whether express, implied, or statutory, including any warranty of non-infringement, title, fitness for a particular purpose, or merchantability, to the maximum extent permitted by law. Client modifications (other than those made by Continuum GRC at Client’s request) void the warranties and any Maintenance obligations.
10. Limitation of Liability
Except for claims arising from a Party’s breach of Confidential Information obligations, the indemnity obligations, and Client’s payment obligations, each Party’s maximum aggregate liability under this Agreement, regardless of the form of action, shall be limited to the greater of (x) $50,000 or (y) the fees paid or payable by Client for the Continuum GRC Solution giving rise to the claim during the twelve (12) months preceding the claim. Neither Party shall be liable for indirect, special, incidental, or consequential damages of any kind, even if advised of the possibility of such damages. The Parties agree to this allocation of risk.
Continuum GRC shall have no liability for: (i) modifications created by or for Client (other than those made by Continuum GRC); (ii) use outside the scope of this Agreement and the Documentation; (iii) combination with or failures caused by third-party software or hardware not supplied by Continuum GRC; or (iv) modifications not contemplated by this Agreement.
11. Ownership
All right, title, and interest in and to Continuum GRC Solutions remain with Continuum GRC and its third-party licensors. Client receives only the limited rights expressly granted in this Agreement.
12. Notice
All notices under this Agreement must be in writing and delivered by email with confirmation of receipt, overnight courier, or certified mail to the addresses set forth in the Subscription Agreement (or such other address as a Party may designate in writing).
13. Force Majeure
Neither Party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials.
14. Dispute Resolution; Governing Law
This Agreement is governed by the laws of the State of Arizona, without regard to conflict-of-laws principles. Any dispute arising under this Agreement shall first be attempted to be resolved through good-faith negotiation. If unresolved, the dispute shall be submitted to binding arbitration in Maricopa County, Arizona, under the rules of the American Arbitration Association. Judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property or Confidential Information.
15. Term and Termination
This Agreement remains in effect for the term of the applicable Subscription Agreement(s) and any renewals. Either Party may terminate for material breach if the breach remains uncured thirty (30) days after written notice. Upon termination, Client’s access ceases and Client must discontinue all use of Continuum GRC Solutions. Provisions that by their nature should survive (including Confidential Information, Ownership, Indemnity, Limitation of Liability, and General Provisions) shall survive termination.
16. Mutual Publicity
Neither Party shall issue any press release or public announcement regarding this Agreement or the relationship without the prior written consent of the other Party, except as required by law.
17. Statutory Exceptions
If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. The unenforceable provision shall be modified to the minimum extent necessary to make it enforceable while preserving the Parties’ original intent.
18. General
This Agreement, together with any Subscription Agreement(s) and SOW(s), constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations, or agreements relating to its subject matter. No amendment is effective unless in writing and signed by authorized representatives of both Parties. Failure to enforce any provision shall not constitute a waiver. Client may not assign this Agreement without Continuum GRC’s prior written consent. Continuum GRC may assign this Agreement in connection with a merger, acquisition, or sale of substantially all of its assets. This Agreement is binding upon and inures to the benefit of the Parties and their permitted successors and assigns.