HJ ROSS COMPANY. License and Services Agreement

This Master Agreement (“Agreement”) is a legal agreement for the license of HJ ROSS Compliance Software (the “Software”) between Company (the “Client” or “You” or “Your”) and HJ ROSS COMPANY (“We” or the “Company” or “Us”). The Client and the Company are sometimes referred to herein collectively as the “Parties” or individually as a “Party”. The Parties are agreeing to all terms and conditions in this Agreement:

This Agreement summarizes the entire functions and responsibilities of the Software. This Agreement also outlines the Parties’ responsibilities under our engagement and outlines the Company’s process and billing procedures.

ENGAGEMENT
We, HJ ROSS COMPANY, are being engaged by You to perform the services outlined in this Agreement. Any of Your affiliates may receive the services on Your behalf of hereunder, provided that You shall be responsible for ensuring that any such affiliate complies with the terms and conditions of this Agreement and provided that any such affiliates are supporting or providing the same services as the Client under an alternate business name or structure.

LICENSE TO SOFTWARE
We hereby grant to You a non-exclusive, non-transferable (except in compliance with this Agreement) right to access and use the Software and the Services (as defined below) during the term of this Agreement, solely for use in accordance with the terms and conditions herein. We hereby grant to You a non-exclusive, non-sublicenseable, non-transferable (except in compliance with this Agreement) license to use the Company’s user manuals, handbooks, and guides relating to the Software and the Services provided by the Company to either electronically or in hard copy form (“Documentation”). The licenses granted herein shall also include the right to generate, print, copy, upload, download, store, and otherwise process all GUI, audio, visual, digital, and other output, displays, and content as may result from Your access to or use of the Services (such as creating or customizing compliance policies using the Company’s templates and materials). FOR THE AVOIDANCE OF DOUBT, NOTHING HEREIN SHALL ENTITLE OR GRANT TO YOU ANY RIGHT, TITLE OR INTEREST IN, OR ACCESS TO, THE SOURCE CODE OF THE SOFTWARE.

SERVICES AND FEES
The Agreement covers HJ ROSS ’s service offerings via the Software and content including but not limited to Policies, Procedures, Tasks and Forms. We will notify You as we introduce new products and product enhancements, which may be governed by separate agreements. The HJ ROSS Software Services and all content (collectively referred to as “Services”) and their fees are described below.
All Services provided by us under this Agreement are for educational and consulting purposes only. The ultimate responsibility for acquiring and maintaining compliance and responding to any and all audits, compliance reviews, or regulatory inquiries related to the internal operations of the Client is with You. We make every effort to provide the most up to date content as required by federal law but we do not guarantee its accuracy and timeliness. You accept responsibility for taking the actions necessary to maintain ongoing compliance with all government and state standards required for compliance. Nothing in the HJ ROSS systems or advice should be construed as legal advice. Please contact your attorney for all legal matters related to federal and state privacy and security legal requirements.
HJ ROSS will maintain a copy of all Client Data and this Client Data will be backed up daily. For purposes of this Agreement, “Client Data” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of You by, through or using the Software or the Services, or (b) collected, downloaded, or otherwise received by Us for pursuant to this Agreement. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Client Data are themselves also Client Data. For the avoidance of doubt, Client Data includes any and all information that We collect, receive, or obtain, from or on behalf of You that does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, such as the individual’s name, address, social security number, etc., and any other information relating to an identified or identifiable individual (hereinafter “Personal Information”). Further, during this Agreement and at all times in connection with its actual or required performance of the Services hereunder, We shall maintain a business continuity and disaster recovery plan for the Software and the Services (the “Plan”), and implement such Plan in the event of any unplanned interruption of the Software or the Services.

For the HJ ROSS Information Security and Privacy Compliance Software:

Services:
• HJ ROSS is a membership software and includes a setup fee plus an ongoing monthly or annual fee. Content will be provided continuously until cancelled by You or Us for non-payment.
• We will provide online access to customizable content to be used by You to achieve compliance when combined with your actions. This will include but not be limited to: policies and procedures, forms, tasks, training, reports and links to resources. We continually add updates as they become available.
• You will receive a private dashboard, that will be used to support one client, where you will assign a user admin and also have the ability to add users from the client who receive their own private dashboard.
• We will provide various HJ ROSS use training tools on your website including video and text.
• We will provide varied levels of support including but not limited to an internal email system, a support ticket system, and, for an additional fee, phone consultancy
• We will provide an internal email system for use by the admin and employees.
• We will provide an audit and breach management system
• We will allow 3rd party websites (who allow this technology, and whose site security protections meet HJ ROSS requirements) to be framed within our dashboard. We are not liable for the content of 3rd party sites.

Client Responsibility

For the HJ ROSS Service:
• You agree to provide a team member to participate in the preparation for initial compliance and for ongoing maintenance. This team member will be responsible for devoting sufficient time to complete all assigned tasks, policies, procedures and forms and to attest to their completion through the system.
• Each team member will have his personal profile within the system and contact information continuously up to date.
• Each team member will assign users to the system if needed and continuously update user status as needed.
• You will notify HJ ROSS immediately of any change in status to users that are registered to access the software. It is your responsibility to adequately orient new or changed team members who may join your team during the compliance process.
• You accept responsibility for ongoing compliance with all applicable government and state standards required for compliance. Furthermore, You agree that the HJ ROSS Services is not designed to take the place of the physical or technological activities that your organization must take to support the documents provided.

Our Responsibility
• We shall ensure that the Software and the Services are available and operable for access and use by You over the Internet in fully conformity with the specifications for the Software and the Services.
• We shall comply with all applicable laws as they concern this Agreement or the subject matter hereof, including by securing and maintaining all required and appropriate visas, work permits, business licenses, and other documentation and clearances necessary for performance of the Services.

BILLING PROCEDURES & COLLECTIONS

Fees
The Software is a membership product which includes an ongoing monthly or annual fee. We will take every effort to notify you via email if there is an issue with billing, but we reserve the right to discontinue service after 3 failed attempts to collect the monthly or annual fee.
Payments, and Work Cessation
You will be billed for services according to the product you’ve selected. Failure to pay renewed monthly or annual subscription services may result in the immediate suspension of access to the software. We will attempt to bill the card on file 3 times. If at that time payment has still not been received, we will suspend the account and keep Client Data on file for 60 days. If payment is brought current within that time, You will have access to your Client Data. After 120 days after account suspension where payment has still not been brought current, HJ ROSS reserves the right to delete all data within Your dashboard with reasonable prior notice.
HJ ROSS is not responsible for any sales tax, use tax, excise tax or any similar taxes or other charges that may be assessed.
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other party that:
• it is a duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
• it has, and throughout the term of this Agreement and any additional periods during which it does or is required to perform the Services will retain, the full right, power, and authority to enter into this Agreement and perform its obligations hereunder;
• the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
• when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such Party in accordance with its terms.
We further represent, warrant, and covenant to You that:
• the Company has, and throughout the term of this Agreement and any additional periods during which the Company does or is required to perform the Services will have, the unconditional and irrevocable right, power, and authority to provide the Services and grant and perform all rights and licenses granted or required to be granted by it under this Agreement;
• neither the Company’s grant of the rights or licenses hereunder nor its performance of any Services or other obligations under this Agreement does or at any time will: (i) conflict with or violate any applicable law, including any law relating to data privacy, data security, or Personal Information; (ii) require the consent, approval, or authorization of any governmental or regulatory authority or other third party; or (iii) require the provision of any payment or other consideration by You to any third party;
• the Software, Documentation, and all other Services and materials provided by the Company under this Agreement will not infringe, misappropriate, or otherwise violate any intellectual property rights or other right of any third party;
• the Services will conform to and perform in accordance with the specifications and all requirements of this Agreement;
• the Software and Services are and will remain free of software, hardware, or other technologies, devices, or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the integrity, use, or operation of any data processed thereby; or (b) prevent You from accessing or using the Services or Software as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, or other malicious computer code and any time bomb or drop dead device.; and
• We will perform all Services in a timely, professional, and workmanlike manner with a level of care, skill, practice, and judgment consistent with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet the Company’s obligations under this Agreement

EXCEPT AS OTHERWISE SET FORTH HEREIN, YOU AGREE THAT YOUR USE OF OUR SERVICES ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS OTHERWISE SET FORTH HEREIN, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND USE OF THESE SERVICES DOES NOT IN ANYWAY GUARANTEE COMPLIANCE.

CONFIDENTIALITY AND SECURITY

Mutual Confidentiality
In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, clients and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, (i) all Client Data (including all Personal Information) is and will remain the Confidential Information of the Client and (ii) the Services, Software, and Documentation are and will remain the Confidential Information of the Company.

The Receiving Party shall: (i) not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) except as may be required by law, not disclose or permit access to Confidential Information other than to its authorized agents who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and (iv) notify the Disclosing Party in writing immediately of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership, privacy rights, and other rights therein.

Security Obligations
Throughout the term of this Agreement and at all times in connection with its actual or required performance of the Services hereunder, We shall:
• maintain and enforce an information security program including safety and physical and technical security policies and procedures with respect to its processing of Your Confidential Information that the requirements, practices and standards consistent with law and industry practices and standards;
• provide technical and organizational safeguards against accidental, unlawful, or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling, or processing of such information that ensure a level of security appropriate to the risks presented by the processing of Your Confidential Information and the nature of such Confidential Information, consistent with industry practice and standards;
• take all reasonable measures to: (i) secure and defend all locations, equipment, systems, and other materials and facilities employed in connection with the Services against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access, or otherwise use the Company’s systems or the information found therein; and (ii) prevent Your Confidential Information from being commingled with or contaminated by the data of other Company customers or third-parties (and vice versa) and unauthorized access to any of Your Confidential Information;
• continuously monitor the Company systems for potential areas where security could be breached;
• immediately report to You any breach of security or unauthorized access to Your Confidential Information that We detect or become aware of;
• use best efforts to remedy such breach of security or unauthorized access in a timely manner and deliver to You a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting any Confidential Information of Yours that sets out written details regarding the Company’s investigation of such incident and, upon Your written request, provide a second more in-depth investigation and results of its findings; and
• refrain from notifying, for or on behalf of You, any regulatory authority, consumer, or other person of any such security breach or unauthorized access unless You specifically request in writing that the Company do so, except as and when otherwise required by applicable law.

OWNERSHIP OF IP
We acknowledge that, as between Us and You, You own all right, title, and interest, including all intellectual property rights, in and to the Client Data. You hereby grant to Us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display the Client Data solely to the extent necessary for Us to provide the Services to You.
You acknowledge that, as between Us and You, We own all right, title, and interest, including all intellectual property rights, in and to the Services and the Software, which is subject to the licenses to You stated herein; provided, however, that all intellectual property rights, including copyrights, patents, together with all of the goodwill associated therewith, derivative works and all other rights in and to all documents, work product and other materials that are prepared or created by, or delivered to, You in the course of performing the Services, including based upon forms and materials provided by Us (the “Deliverables”) shall be owned exclusively by You and shall be considered Client Data. We agree, and shall cause our personnel and agents to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for the Client. To the extent that any of the Deliverables do not constitute a “work made for hire,” We hereby irrevocably assign, and shall cause our personnel and agents to irrevocably assign to You, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables. Upon Your written request, We shall, and shall cause our personnel and agents to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist You to prosecute, register, perfect or record its rights in or to any Deliverables.

Except as provided herein, nothing in this Agreement grants Us or the Client any interest or rights in the other Party’s name, trademarks, service mark, or other intellectual property, and this Agreement transfers no right, title, or interest in any such intellectual property of the Company or the Client to the other Party; each Party retains sole and exclusive title to and ownership of all such intellectual property.

INDEMNIFICATION
Each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party and its affiliates, and the directors, officers, employees and agents of each (collectively, “Indemnitees”), from and against any demands, claims and actions by third parties, and all liabilities, judgments, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith (individually and collectively, “Liabilities”), arising out of or resulting from: (i) any material breach or alleged breach by a party of this Agreement, or the representations and warranties made in this Agreement; (ii) the failure or alleged failure of a Party to comply with all applicable laws, rules, and/or regulations regarding the Services provided under this Agreement; or (iii) in the case of the Company’s indemnity obligations, any actual or alleged infringement, misappropriation or other violation of any third-party intellectual property rights by the Services or Software, or Your use thereof.

LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY AND SECURITY OBLIGATIONS, A PARTY’S INDEMNIFICATION OBLIGATIONS OR ANY VIOLATION OF LAW:
• YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY HJ ROSS COMPANY SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICES DURING THE TERM OF THIS AGREEMENT.
• YOU AGREE THAT HJ ROSS COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TERMINATING THIS AGREEMENT
You have the right to terminate this engagement at any time. Termination can be done through the system, by phone or by email. Upon termination of the Agreement, We shall repay, on a pro rata basis, all fees, expenses and other amounts paid in advance for any Services that We have not performed as of the effective date of such termination.
Upon termination, we shall keep Client Data on file for 60 days. After 120 days after termination, HJ ROSS reserves the right to delete all data within Your dashboard with reasonable prior notice.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement:

REPRESENTATIONS AND WARRANTIES, CONFIDENTIALITY AND SECURITY, OWNERSHIP OF IP, INDEMNIFICATION, TERMINATING THIS AGREEMENT, and GOVERNING LAW AND VENUE.

ASSIGNMENT
Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other Party’s prior written consent

GOVERNING LAW AND VENUE
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of California in each case located in Orange County, California, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
ENTIRE AGREEMENT: CHANGE OF TERMS NOTICE
This Agreement contains the entire Agreement between You and the Company. Any amendments or modifications to this Agreement shall be agreed upon by both Parties in writing.

ACCEPTANCE
The items and conditions of this Agreement are agreed to and accepted by You and Us. YOUR
USE OF THE SOFTWARE CONSTITUTES YOUR AGREEMENT, FOR THE CLIENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. OUR PROVIDING ACCESS AND USE OF THE SOFTWARE CONSTITUTES OUR AGREEMENT, FOR THE COMPANY TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT