ACCLAIM IQ Terms & Conditions

These Terms and Conditions (“Terms) together with the order form executed by Subscriber (“Order Form”) shall govern the use of the ACCLAIM IQ, LLC (“ACCLAIM”) software and the services provided by ACCLAIM (“Services”) pursuant to the Order Form as of the Effective Date of the Order Form. These Terms together with the Order Form, and any statement of work (“SOW”), exhibits, amendments and attachments thereto shall constitute the Agreement between ACCLAIM and Subscriber. Each of ACCLAIM and Subscriber are sometimes referred to herein as a “party” and collectively, the “parties.”

1. DEFINITIONS

a. Administrator User means each Subscriber’s employees designated by the Subscriber to serve as technical administrator of the Services on Subscriber’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by ACCLAIM.

b.  Effective Date means the date specified in the Order Form.

c.  Subscriber Data means Subscriber’s and its affiliates’ confidential, proprietary or trade secret information and any trademarks, copyrights or patents of Subscriber used in connection with the Services, and any records or information created in the course of the development and use of the Services by Subscriber and its Users.

d.  Subscriber Content means information in printed or graphic form intended to be displayed by ACCLAIM in the course of providing the Services

e.  Documentation means all materials supplied to Subscriber including any and all manuals, training materials, guides, or other materials that describes the functionality and/or specifications of the Software and Services, and any other similar document describing the features, functionality and/or capabilities of the Software and Services to meet Subscriber’s requirements.

f.  Fees means the amounts set forth in it the Order Form to be paid by Subscriber pursuant to Section 5 of the Terms.

g.  Software means the object code, source code and any computer program(s) employed to provide or use the Services. The term “Software” includes any Updates or other modifications, including custom modifications. Update means any improvements, corrections, bug fixes, enhancements, releases, upgrades, new versions or other modifications, however named or numbered, including custom modifications of the Software, Documentation or the Services.

h.  Subscription Term means that period specified in the Order Form during which Subscriber will have on-line access and use of the Software through ACCLAIM Services.

i.  ACCLAIM Content means ACCLAIM’s computer programs, formats, reports, information and data used to render the Services or made available to Subscriber and its Users in connection with the Services.

j.  Services means the services and products set forth in the Order Form to be provided by ACCLAIM pursuant to the terms of this Agreement including the provision by ACCLAIM and use by Subscriber of the Software and the Support Services.

k.  Support Services means all implementation, maintenance and support services to be provided by ACCLAIM as set forth in the Order Form and this Agreement.

l.  User means each Subscriber broker, agent, agency and adjuster identified by a National Producer Number (NPN) who has access to the Services.

2. SERVICES.

During the Subscription Term, Subscriber will receive a non-exclusive, non-transferable, royalty free, right to access and use the Services solely for internal business operations subject to the terms of this Agreement and up to the number of Users specified in the Order Form.

a.  As required under this Agreement and the Order Form, ACCLAIM shall render the Services to Subscriber and its Users. To the extent necessary to receive or use the Services, ACCLAIM grants Subscriber and its Users a non-exclusive, non-transferable right to access and operate computer programs, ACCLAIM Content and other information and data that is necessary to use or receive the Services. Notwithstanding anything to the contrary herein, Services may only be used for the benefit of Subscriber. Any rights not expressly granted in this Agreement are expressly reserved to ACCLAIM.                

b.  As set forth in Section 4(g), ACCLAIM is granted a limited, non-exclusive, royalty-free, non-transferable license to copy and use the trademarks, service marks, and/or other provided Subscriber materials solely and exclusively in connection with the performance of Services hereunder. No other use shall be permitted hereunder without the express written consent of Subscriber. ACCLAIM agrees that any and all marks, logos and other Subscriber Content shall be reproduced without any alternation or modification and in accordance with the guidelines of Subscriber supplied by Subscriber and thereafter as may be modified from time to time with notice to ACCLAIM.                     

c.  Microsoft Azure Cloud. Subscriber acknowledges that the Software Services are hosted on the Microsoft Azur Cloud platform and Subscriber must look to Microsoft Azure Cloud with respect to service level commitments, service uptime and service availability. Subscriber acknowledges that all producer-related data provided by Subscriber to enable the provision of the Services is stored by Microsoft Azure Cloud and not ACCLAIM and that the Microsoft Azure Cloud terms and conditions related to data security, data storage and back-up shall govern as to Subscriber Data stored on Microsoft Azure Cloud.

d.  NIPR. Subscriber specifically acknowledges that the Software Services use the National Insurance Producer Registry (“NIPR”) as a data source. Subscriber further agrees that to use certain outbound data portions of the Software Services, Subscriber must sign up with NIPR, and Subscriber’s use of the NIPR data is subject to NIPR’s terms of use. Notwithstanding anything to the contrary in this Agreement or otherwise, Subscriber’s use of the NIPR data is subject to the NIPR Use Agreement, including any pass-through terms therein, and ACCLAIM shall not be responsible or liable for Subscriber’s use of the NIPR data in violation of the NIPR Use Agreement. Subscriber represents, warrants and covenants Subscriber will use the Services in compliance with the terms and conditions of the NIPR Use Agreement, all applicable laws and regulations, and the NIPR data usage, fair credit reporting act notice requirements, and pass-through terms and restrictions available in the NIPR Use Agreement. Subscriber agrees to indemnify and hold harmless ACCLAIM against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of the Services.

3. RESTRICTIONS.

Subscriber shall not, and shall not permit anyone to:

(i) copy or republish the Services or Software, make the Services available to any person other than Users,

(ii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties,

(iii) modify or create derivative works based upon the Services or Documentation,

(iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or in the Documentation,

(v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law,

(vi) access the Services or use the Documentation in order to build a similar product or competitive product; or

(vii) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of the United States. Subject to the limited licenses granted herein, ACCLAIM shall own all right, title and interest in and to the Software, Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Subscriber agrees to assign all right, title and interest it may have in the foregoing to ACCLAIM.

4. SUBSCRIBER RESPONSIBILITIES.

a.  Assistance. Subscriber shall provide commercially reasonable information and assistance to ACCLAIM to enable ACCLAIM to deliver the Services. Upon request from ACCLAIM, Subscriber shall promptly as practicable, deliver Subscriber Content to ACCLAIM in an electronic file format specified and accessible by ACCLAIM. Subscriber acknowledges that ACCLAIM’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.              

 b. Third-Party Services. ACCLAIM may grant Subscriber access to the websites for third parties, including other service providers and from whom Subscriber may obtain services or goods, including NIPR and Microsoft Azure Cloud . Subscriber acknowledges ACCLAIM does not operate or control the products or services offered by third parties, and ACCLAIM is not a party to any agreements, dealings or transactions between Subscriber and third parties. ACCLAIM takes no responsibility for any advertisements, claims or other information supplied by third parties. Subscriber uses such third-party services at Subscriber’s own risk and ACCLAIM does not guarantee or warrant any third-party services or goods in any way. Subscriber agrees that the limitation and disclaimer of liability recited in this Agreement fully extends to Subscriber’s use of any third-party websites including Subscriber’s obtaining of services or goods from third party service providers.

c. Compliance with Laws. Subscriber shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Subscriber acknowledges that ACCLAIM exercises no control over the content of the information transmitted by Subscriber or Users through the Services. Subscriber shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

d. Unauthorized Use; False Information. Subscriber shall: (a) notify ACCLAIM immediately of any unauthorized use of any password or user id or any other known or suspected breach of security for which Subscriber becomes aware, (b) report to ACCLAIM immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Subscriber and related to Subscriber’s license hereunder or any User, and (c) not provide false identity information to gain access to or use the Services.

e. Administrator Access. Subscriber shall be solely responsible for the acts and omissions of its Users. ACCLAIM shall not be liable for any loss of data or functionality to the extent caused directly or indirectly by Subscriber’s Users.

f. Subscriber Input. Subscriber is solely responsible for collecting, inputting and updating all Subscriber Content stored in the Microsoft Azure Cloud data center, and for ensuring that the Subscriber Content does not (i) include anything that infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

g.  License from Subscriber. Subject to the terms and conditions of this Agreement, Subscriber shall grant to ACCLAIM a limited, non-exclusive, and non-transferable license, to copy, store, configure, perform, display and transmit Subscriber Content solely as necessary to provide the Services to Subscriber.

h. Ownership and Restrictions. Subscriber retains ownership and intellectual property rights in and to its Subscriber Content. ACCLAIM or its licensors retain all ownership and intellectual property rights to the Services, Software programs, and anything developed and delivered under this Agreement. Third party technology that may be appropriate or necessary for use with some ACCLAIM programs is specified in the program Documentation or ordering document as applicable. Subscriber’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by ACCLAIM and not under this Agreement.

i. Suggestions, Enhancement Requests, Recommendations or other Feedback. ACCLAIM shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the operation of the Services.

5. FEES AND TAXES.

a. FEES. Subscriber shall pay to ACCLAIM fees as specified in the applicable Order Form in accordance with the terms therein. Payment obligations are non-cancellable, and fees are non-refundable.

b. PAYMENTS. Fees will be invoiced in accordance with the terms stated on the Order Form. Unless otherwise stated, all fees are due within thirty (30) days from the invoice date.

c. TAXES. Subscriber shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than ACCLAIM income taxes. If ACCLAIM pays any such taxes on Subscriber’s behalf, Subscriber agrees to reimburse ACCLAIM for such payment within 30 days of receipt of ACCLAIMS invoice for such taxes.

d. EXPENSES. Subscriber is responsible for all expenses of ACCLAIM related to this Agreement to the extent expressly set forth in the Order Form, SOW or otherwise expressly agreed to in writing by Subscriber in advance.

e. OVERDUE PAYMENTS. Any payment not received from Subscriber within 30 days of the invoice due date, shall accrue interest (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. Subscriber shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorney fees and court costs. In addition, if any invoice is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), ACCLAIM reserves the right to suspend Subscriber’s and any User’s access to the Services without liability to ACCLAIM, until such account is paid in full.

6. PROPRIETARY RIGHTS.

a.  ACCLAIM’s Proprietary Rights. Except as otherwise provided in this Agreement, as between Subscriber and ACCLAIM, the Services (including without limitation, the Software, ACCLAIM Content and Updates) and Documentation are and shall remain the property of ACCLAIM.

b. Subscriber’s Proprietary Rights. As between Subscriber and ACCLAIM, Subscriber Data and Subscriber Content shall be the sole and exclusive property of Subscriber.

7. WARRANTIES.

a.  Services. The Services shall substantially conform in all material respects to. the Documentation

b. Intellectual Property. ACCLAIM warrants that: (i) either it is the sole owner of the Software, ACCLAIM Content and related Documentation, or it has all the necessary rights to render the Services and grant the licenses under this Agreement; and (ii) Neither rendition of the Services nor use of the Software, ACCLAIM Content or related Documentation will infringe upon any patent, copyright, trade secret, or other proprietary or intellectual property right of any entity not a party to this Agreement.

c.  Warranty. ACCLAIM represents and warrants that it will provide the Services in a professional manner consistent with general industry standards and that the Services will perform substantially in accordance with the then current Documentation. For any beach of a warranty, Subscriber’s exclusive remedy shall be as provided in Section 13, Term and Termination.

ACCLAIM WARRANTS THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS AND IN ACCORDANCE WITH THIS AGREEMENT. ACCLAIM DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED. SUBSCRIBER ACKNOWLEDGES THAT ACCLAIM DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY ACCLAIM (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER ACCLAIM NOR ANY OF ITS LICENSORS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE

d.  Legal Status. Each party warrants that it is duly organized and in good standing under the laws of the jurisdiction in which it is organized and has the authority and power to enter into the Agreement and perform its obligations hereunder.

e.  Professional Services. The Services provided by ACCLAIM to Subscriber under this Agreement shall be performed in a professional and workmanlike manner by adequately trained and experienced personnel and in accordance with the terms of this Agreement.

f.   Implied Warranty.  ACCLAIM HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE SERVICES.

g.  Non-Conformance. If Subscriber discovers a breach of any warranty, duty, obligation or representation or a failure to conform with any of the warranties, representations, duties or obligations of ACCLAIM, Subscriber shall inform ACCLAIM of the same in writing, and, upon receipt of such notice,

(i) ACCLAIM shall correct such breach or non-conformity within a reasonable period of time not to exceed ten (10) business days without any additional charge to Subscriber; provided that if the nature of such breach or non-conformity requires additional time and ACCLAIM promptly commences and diligently pursues a correction, ACCLAIM shall have up to an additional twenty (20) business days as necessary to effect such correction; or

(ii) if ACCLAIM cannot effect such corrections within a reasonable time using commercially reasonable efforts, Subscriber may terminate the Agreement upon notice to ACCLAIM. With respect to the cure period set forth in this Section, ACCLAIM acknowledges that time is of the essence in any interruption of Subscriber’s use of the Service. The foregoing notwithstanding, if ACCLAIM knows or has reason to know of defects in the Software or the Service it shall supply updates and modifications to the same which will correct the defects without limiting or degrading performance or functionality of the Software or the Service even if Subscriber is not aware of the defect(s).

8. SOLICITATION

During the Subscription Term and for a period of one (1) year following the termination or expiration of this Agreement, neither party shall employ, offer employment to or solicit the employment of or otherwise entice away from the employment of the other party any individual employee or independent contractor employed or engaged by such other party during the term of this Agreement without the prior written consent of such other party. Notwithstanding the foregoing, the provisions of this Section shall not apply to any solicitations which are directed at the public in general or are found in general publications or to any hiring resulting solely from such solicitations.

9. OTHER ACTIVITIES

a.  Support. During the term of this Agreement, ACCLAIM shall address, respond to, correct and at all times be and remain solely and exclusively responsible for the following Support Services:

i.  Resolving all material or frequent errors with the ACCLAIM Software.

ii.  Maintaining the ACCLAIM Software, so that (A) it performs substantially as set forth in this Agreement and all applicable Documentation and in accordance with all applicable laws, rules or regulations; (B) Users are able to access the Service via the ACCLAIM Software; and (C) it is compatible with all interfaces necessary for the ACCLAIM Software to perform substantially in accordance with the standards set forth in this Section.

iii.  Between the hours of 9:00 am and 5:00 pm (Eastern Time), Monday through Friday excluding legal holidays, technically competent ACCLAIM personnel shall be available by telephone to receive reports of problems, failures or errors in the Service; to provide problem solutions and corrections, “work-arounds” or “fixes” to readily correctable problems, failures or errors, and to answer questions regarding the Software.

iv.ACCLAIM shall provide a Project Manager that will be the main point of contact and liaison from implementation throughout production and ongoing.

b.   Updates. For the term of this Agreement, Subscriber will receive for its use all of the Software or the Services issued or made available by ACCLAIM to its subscribers. ACCLAIM will also provide to Subscriber any revisions to the existing Documentation necessary to reflect all corrections, improvements, and new functionality.

10. CONFIDENTIAL INFORMATION.

a.  Confidentiality Obligations. From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) and its affiliates, whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, Subscribers, services, policyholders and/or claimants, including but not limited to information and/or documents concerning; (1) financial information, strategic business plans, policies and/or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing and/or profit information; (4) lists of actual or prospective Subscribers; (5) proprietary and/or confidential intellectual property; and (6) intellectual property of third parties licensed to the Disclosing Party (collectively, “Confidential Information”) in connection with this Agreement. Each party agrees that during the Term and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of it own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s affiliates and its and their employees and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. For Confidential Information that does not constitute “trade secrets” under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement. The Recipient will be responsible for any breach of this Section by its affiliates and its and their employees, representatives, and agents.

b. Subscriber Data. ACCLAIM agrees that Subscriber Data may contain highly sensitive confidential information, including non-public personally identifiable information of Subscribers, insureds and claimants. ACCLAIM agrees: (1) to treat such information as Confidential Information hereunder; (2) to use it only to perform Services; and (3) to delete, destroy, and/or return such Confidential Information and/or Subscriber Data at termination or expiration hereof.

c. Exclusions. For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).

d. Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.

e. Non-Public Personally Identifiable Information. Except for the purposes of carrying out this Agreement, ACCLAIM shall not disclose or use any non-public personally identifiable agent, employee or Subscriber information provided by Subscriber to ACCLAIM. “Non-public personally identifiable information” is financial or medical information of or concerning a private person which either has been obtained from sources which are not available to the general public or obtained from the person who is the subject and which information is included in data files exchanged by the parties hereto. For the purposes hereof the terms shall include data elements such as names and addresses of individuals. Such Subscriber or claimant information shall not be reproduced or shared with any other party except those entities with which ACCLAIM may from time to time contract in accordance with the fulfillment of the terms of this Agreement and which disclosure shall comply with all state and federal statutes and regulations governing the disclosure of medical records and non-public personally identifiable information, including any state or federal laws pertaining to the confidentiality of medical records. ACCLAIM shall adopt, implement and maintain industry-standard security procedures to protect Subscriber information and Non-public personally identifiable information from improper disclosure or use, such procedures to be in compliance with all applicable federal and state regulatory requirements and will immediately notify Subscriber of any breach or suspected breach of data security.

11. LIMITATION OF LIABILITY.

Except for claims arising under Sections 5, 10 and 12, neither party’s aggregate liability to the other party under this Agreement shall exceed the total amount of Fees paid hereunder during the twelve-month period immediately prior to the date the cause of action arose.

UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES TO SUBSCRIBER OR ANY SUBSCRIBER, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL OR REPUTATION, REPLACEMENT GOODS, COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT ACCLAIM SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

12.INDEMNIFICATION.

a. ACCLAIM INDEMNIFICATION.To the maximum extent allowed by law, ACCLAIM will defend, indemnify and hold harmless the Subscriber, from and against any loss, damage or cost (including reasonable attorney fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the use of the Services or the Software, as contemplated hereunder, infringes the intellectual property rights of a third party. ACCLAIM’s obligations under this indemnification are expressly conditioned on the following: (i) Subscriber must promptly notify ACCLAIM of any such Claim; (ii) upon request, Subscriber must in writing grant sole control of the defense of any such Claim and all negotiations for its settlement, provided no settlement shall be entered into without Subscriber’s consent, which shall not be unreasonably withheld. If Subscriber chooses to represent its own interests in any such action, Subscriber may do so at its own expense, but such representation must not prejudice ACCLAIM’s right to control the defense of the Claim and negotiate its settlement or compromise); (iii) Subscriber must cooperate with ACCLAIM (at ACCLAIM’s expense) to facilitate the settlement or defense of the Claim. ACCLAIM shall have no liability or obligations hereunder with respect to any claim to the extent based upon the use of the Services or support with equipment or software not supplied by ACCLAIM or in a manner inconsistent with the ACCLAIM instructions. If a third party Claim or threatened Claim causes Subscriber’s reasonable use of the Services to be seriously endangered or disrupted, ACCLAIM shall promptly, without additional charge to Subscriber: (i) replace or modify Services with a compatible, functionally equivalent and non- infringing product; or (ii) obtain at its sole cost and expense appropriate rights to continue provide Services for the term of this Agreement; or (iii) if none of the foregoing alternatives are possible even after the ACCLAIM’s reasonable efforts, then this Agreement shall terminate and ACCLAIM shall provide Subscriber with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. The foregoing obligations shall not apply to portions of the Service that are not supplied by ACCLAIM or to the extent any Claim is based upon the combination, operation or use of the ACCLAIM Services with other software not supplied by ACCLAIM or in a manner inconsistent with the instructions of ACCLAIM.

THE FOREGOING OBLIGATIONS UNDER THIS SECTION 12 ARE ACCLAIM’S EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

b. SUBSCRIBER INDEMNIFICATION. Subscriber agrees to indemnify, defend and hold harmless ACCLAIM, ACCLAIM’s licensors, suppliers and vendors, and their respective affiliates harmless against any loss, damage or costs (including reasonable attorney fees) incurred in connection with Claims made or brought against ACCLAIM by a third party arising from or relating to Subscriber Data or Subscriber’s use of the Services in violation of this Agreement.

13. TERM AND TERMINATION

a. Term. Unless otherwise specified in the Order Form, this Agreement commences on the Effective Date and shall continue for an initial term of three (3) years. The initial term shall automatically renew for successive one-year terms unless either party gives written notice to the other party no less than thirty (30) days prior to the end of a current term.

b. Termination for Breach. This Agreement may be earlier terminated by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment.

c. Effect of Termination.

i. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 1, 5-8,10-12,14 and this Section 13.c shall survive. ACCLAIM shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate.

ii. Upon termination of this Agreement due to a breach by Subscriber, then Subscriber shall immediately pay to ACCLAIM all amounts then due under this Agreement for Services provided prior to If ACCLAIM such termination.

iii. If Subscriber terminates this Agreement due to a breach by ACCLAIM, then ACCLAIM shall immediately repay to Subscriber all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date.

iv. Subject to Section 13.c(v) below, upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

v. Upon termination of this Agreement, in addition to the rights afforded Subscriber in Section 13.c (iv) above, at Subscriber’s option, ACCLAIM will deliver to Subscriber, all Subscriber Data and Subscriber Content (including Subscriber Data and Subscriber Content held or controlled by ACCLAIM in providing the Services hereunder within thirty (30) days of termination or expiration of this Agreement.

14. GENERAL

a. Complete Agreement. This Agreement, including the Order Form and any SOWs and any amendments or additions thereto constitutes the complete and exclusive statement of the agreement between the parties which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this Agreement. No terms, provisions or conditions of any purchase order, invoice or other business form or writing used by Subscriber will apply or have any effect on the rights and duties of the parties hereunder. In the event of any inconsistency between these Terms and any Order Form between the parties, the terms of the applicable Order Form shall govern.

b. Notice. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated in the Order or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

c. Governing Laws. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Connecticut, excluding its principles of conflicts of law. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

d. Deployment Verification. Upon reasonable advance notice to Subscriber and on a non-interference basis with Subscriber’s normal business operations, ACCLAIM has the right to verify the number of Subscriber Users under this Agreement. Such verification shall not be conducted more frequently than once per year unless agreed otherwise in an Order.

e. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

f. Force Majeure. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses commercially reasonable efforts to overcome such circumstances.

g. Marketing. Subscriber hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of ACCLAIM’s marketing and promotional efforts.

h. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Subscriber without ACCLAIM’s written consent, which will not be unreasonable withheld. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

i. Modification and Waiver. This Agreement, including any Order From and SOW, may not be modified or altered except by written instrument duly executed by both parties. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. Notwithstanding the foregoing, ACCLAIM reserves the right to modify or discontinue any part of the Services at any time by giving thirty (30) days prior written notice to Subscriber provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Subscriber may terminate this Agreement upon at least thirty (30) days’ prior written notice to ACCLAIM, and ACCLAIM shall provide Subscriber with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination.

j. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.

k. No Third-Party Beneficiaries. This Agreement is for the sole benefit of ACCLAIM and Subscriber and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.

l. Headings. The headings appearing at the beginning of the sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.