Contractor Subscription Terms

IMPORTANT – READ CAREFULLY.  THESE SUBSCRIPTION TERMS SET FORTH A LEGAL AGREEMENT BETWEEN YOU AND VERIFORCE, LLC RELATING TO SERVICES PROVIDED BY VERIFORCE (INCLUDING TERMS AND CONDITIONS WITH RESPECT TO (A) THE USE OF THE APPLICATION SERVICE, THE SERVICE CONTENT, THE DOCUMENTATION AND THE CONTRACTOR DATA AND (B) RESTRICTIONS ON THE SOLICITATION OF OUR PERSONNEL).

BY (A) CLICKING TO “ACCEPT” OR “AGREE” TO, OR TAKING ANY OTHER ACTION TO AFFIRM, THESE SUBSCRIPTION TERMS WHEN THE OPTION IS MADE AVAILABLE TO YOU, OR (B) AGREEING TO AN ORDER THAT REFERENCES THESE SUBSCRIPTION TERMS, WHICHEVER IS FIRST TO OCCUR, YOU AGREE THAT YOU HAVE READ AND ACCEPTED THESE SUBSCRIPTION TERMS AND HAVE AGREED TO BE LEGALLY BOUND BY THESE SUBSCRIPTION TERMS.  THE INDIVIDUAL WHO ACCEPTS THESE SUBSCRIPTION TERMS ON BEHALF OF THE CONTRACTOR REPRESENTS THAT HE OR SHE HAS AUTHORITY TO BIND THAT COMPANY OR LEGAL ENTITY TO THESE SUBSCRIPTION TERMS.

1. General. These Subscription Terms (together with each Order and any documents incorporated by reference into these Subscription Terms or the applicable Order, collectively, the “Agreement”) set forth the legal agreement between Veriforce, LLC (“Veriforce”, “we”, “us” or similar terms) and the Person identified as the “Contractor” in the account with respect to which these Subscription Terms were accepted (“Contractor”, “you” or similar terms) relating to our provision, and your use, of the Services.
2. Definitions. In addition to those terms otherwise defined in this Agreement, the following terms will have the defined meanings given below:
   1. “Application Service(s)” means the contractor-use version of the web-based application service(s) (including its features and functionality, and the Service Content) made available by Veriforce for access and use by Contractor via the Internet.
   2. “Authorized Personnel” means Contractor’s then-current employees, independent contractors and representatives, in each case, who need to access and use the Application Service in order to assist Contractor in its Permitted Use. The total Authorized Personnel will be subject to the numerical or category limitations (if any) specified in the Order.
   3. “Contractor Data” means any and all data that is uploaded, transmitted or otherwise provided by Contractor (i) to the Application Service or (ii) to Veriforce via email or other electronic means in connection with the Services.
   4. “Contractor DOT Bundle Fee” means the calendar year based (January 1st to December 31st) tiered base fee charged by Veriforce to Contractor based on the number of Qualified Individuals subscribed to by Contractor pursuant to this Agreement.  In the event Contractor selects to only utilize Veriforce’s Drug and Alcohol Services, Contractor shall be considered in the zero tier and pay the Fee (if any)_assigned to the zero tier.
   5. “Documentation” means any user guides and other technical documentation published by Veriforce describing the features, functionality, and operation of the then-current version of the Application Service that Veriforce makes generally available to users of the Application Service.
   6. “Drug and Alcohol Services” means services related solely to the drug and alcohol screenings and data maintained by Veriforce related to Contractor’s employees.
   7. “Feedback” means any suggestions, feedback or other information communicated by Contractor to Veriforce relating to the design, specifications, features, functionality, use or operation of the Application Service and/or other Veriforce offerings (whether current or proposed).
   8. “OQ Data” means any Contractor Data that pertains to a specific individual’s identity, training, skills, knowledge, experience, evaluations and/or qualifications, including any such information provided in response to, reflected in, based upon or in any way referencing OQ Records (or any portion thereof).
   9. “OQ Records” means any and all forms, reports, records and documentation reflecting Veriforce’s or a Veriforce Client’s OQ training, evaluation and/or qualification criteria, methodologies, standards and/or requirements (including any and all qualification submittal forms, records of evaluation, and evaluation criteria documentation published by Veriforce).
   10. “OQ Services” means a type of Application Service that involves the processing of OQ Records and/or OQ Data.
   11. “Order” means (i) a written or electronic order agreed to by Contractor and Veriforce, or (ii) in the absence of an order described in the foregoing clause (i) with respect to any particular Services, an invoice issued by Veriforce with respect to such Services provided to Contractor (including any Application Service made accessible to Contractor at or by the direction of a Veriforce Client), in each case, which (A) identifies the Services provided or to be provided by Veriforce to Contractor and (B) sets forth any additional terms and conditions relating thereto not inconsistent with the provisions of these Subscription Terms. Contractor shall be deemed to have agreed to such document upon the earliest of (1) its first use of the Services identified therein, (2) its payment of Fees for the Services identified therein or (3) its taking of any other action to affirm its acceptance of such document, including its written or electronic acceptance of such document. For the avoidance of doubt, any online order for Services by Contractor through Veriforce’s online ordering process, and accepted by Veriforce, will be deemed an “Order”.  Each Order is subject to the terms and conditions of these Subscription Terms and incorporated herein by this reference.
   12. “Permitted Use” means use of the Application Service for Contractor’s internal business purposes in providing data to and/or receiving data from Veriforce and Veriforce Clients through the Application Service, subject to the other terms, conditions and restrictions set forth in this Agreement.
   13. “Person” means any individual, partnership, corporation, limited liability company, trust, joint stock company, government (including any department or agency thereof) or any other form of association or entity.
   14. “Service Content” means any and all audio, video, audiovisual, text, images, displays, photos, reports, graphs, forms or other content (including the design, selection and arrangement thereof), regardless of form or medium, made available by or on behalf of Veriforce on, through or as part of the Services. For the avoidance, Service Content includes OQ Records.
   15. “Services” means the Application Service and/or the Drug and Alcohol Services, as applicable. For the avoidance of doubt, any services (including Application Services) provided by Veriforce to you in your capacity as a Veriforce Client are not part of the Services and are not covered by this Agreement.
   16. “Subscription Period” means the twelve month calendar period commencing on January 1st and ending on December 31st of each year with respect to the Services and renewing automatically for an additional one-year calendar renewal subscription period unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription/service period. Written notice by Contractor of its intent not to renew this Agreement shall be provided to Veriforce, 300 Holiday Square Blvd., Covington, LA  70433.  Written notice by Veriforce of its intent not to renew shall be provided to Contractor at its mailing address provided in this Agreement.
   17. “Veriforce Client” means a Person that has engaged Veriforce to provide one or more service offerings to support the Person’s management, compliance, training and/or auditing efforts with respect to the Person’s prospective or current third-party contractors.
   18. “Veriforce Procedures” means the then-current standards, requirements, policies, and procedures published by Veriforce relating to the use of the Application Service, including the submission of Contractor Data. A copy of the Veriforce Procedures is made available on the Application Service.
3. Right to Use Application Service and Related Terms and Conditions.
   1. License. Subject to the terms and conditions of this Agreement, Veriforce grants to Contractor a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the applicable Subscription Period, to (i) access and use the Application Service via the Internet for the Permitted Use and (ii) use the Service Content and Documentation for the Permitted Use.  Contractor will comply with Veriforce’s procedures in its use of the Application Service, including with respect to Contractor’s submission of Contractor Data. For the avoidance of doubt, Contractor is not being provided with any source or object code of any software constituting a part of the Application Service (or rights to receive or copy any of the foregoing) under this Agreement.
   2. Service Content and Documentation. (i) Contractor acknowledges and agrees that the Service Content (including OQ Records) and the Documentation are owned by Veriforce, its licensors or other providers of such content and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property rights laws. Contractor is not granted any right or license under Section 3(a) above to reproduce, distribute, republish, download, print, store or transmit any Service Content or the Documentation, except as follows: subject to the provisions of Section 3(b)(ii) below, Contractor may print a reasonable number of copies of the Service Content and Documentation solely to the extent necessary for the Permitted Use of such content by Authorized Personnel.  Any copy of the Service Content or the Documentation: (A) will remain the exclusive property of Veriforce; (B) will be subject to the terms and conditions of this Agreement; and (C) must include all copyright or other intellectual property rights notices contained in the original.  Contractor acknowledges and agrees that the Service Content and the Documentation is Confidential Information of Veriforce.  Anything to the contrary notwithstanding, Contractor will not, and is not authorized to, distribute or otherwise use the OQ Records (including any evaluations, recommendations, results, conclusions or other information reflected therein, regardless of whether or not any portion of the same may contain OQ Data) or the OQ Data in any manner other than for the Permitted Use; (ii) Contractor acknowledges and agrees that certain portions of the Service Content may constitute confidential or proprietary information of a Veriforce Client (for example, the Veriforce Client’s standards, requirements, policies, and procedures) and are being made available to Contractor by Veriforce on behalf of the Veriforce Client. With respect to any Service Content that constitutes confidential or proprietary information of a Veriforce Client, Contractor agrees that Contractor’s rights, restrictions and obligations with respect to the use and disclosure of such information shall be subject to the terms of any separate agreement (including any confidentiality agreement) entered into between Contractor and such Veriforce Client (in addition to the terms set forth in this Agreement), and in the event of a conflict between the rights, restrictions and obligations set forth in any such separate agreement with the Veriforce Client and this Agreement, the terms most protective of such Service Content shall apply.
   3. Authorized Users. Except as otherwise expressly provided below in this Section 3(c), the license grant in Section 3(a) above is limited to access and use of the Application Service (including the Service Content) and Documentation solely by Authorized Personnel on behalf of Contractor.  Contractor acknowledges and agrees that, depending on the specific Application Service subscribed to by Contractor and/or the category of Authorized Personnel, Authorized Personnel may have different access and usage rights to the Application Service.  Contractor shall ensure that Authorized Personnel comply with the terms and conditions of this Agreement with respect to access and use of the Application Service (including the Service Content) and Documentation and agrees that any acts or omissions of such Persons with respect to the same will be deemed acts or omissions of Contractor for which Contractor will be responsible on a joint and several basis.
   4. Additional Conditions and Restrictions. The rights and licenses granted in Section 3(a) above do not authorize Contractor to, and Contractor will not (directly or indirectly): (i) use the Application Service for any purpose, commercial or otherwise, other than the Permitted Use; (ii) modify, adapt, alter, translate, create derivative works of, or publicly display or perform the Application Service (including the Service Content) or the Documentation, including any component of any of the foregoing; (iii) reproduce, distribute, republish, download, print, store or transmit any Service Content or the Documentation (except to the extent expressly permitted in Section 3(b) above); (iv) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, algorithms, architecture, structure or underlying technology of the Application Service (including any component thereof); (v) rent, lease, loan, sublicense, distribute, transfer or provide access (including on a time share, application service or outsourced basis) to the Application Service (including the Service Content) or the Documentation, including any component of any of the foregoing to any other Person (except to the extent expressly permitted in Section 3(c) above); (vi) use the Application Service (including the Service Content) or the Documentation for purposes of (A) engaging in any activities in violation of applicable laws, rules or regulations or (B) competitive or benchmarking analysis or for development of a competing product, service or other offering; (vi) gain unauthorized access to, interfere with, damage or disrupt any portions of the Application Service (including any servers, databases or accounts), or attempt to do any of the foregoing; (vii) introduce into the Application Service any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, or (viii) use the Application Service in any manner that could disable, overburden, damage, or impair the Application Service or interfere with the authorized use of the Application Service by others.  For the avoidance of doubt, a violation or breach of any of the provisions of this Section 3 shall constitute a material breach of this Agreement.  Veriforce shall have the right (but not the obligation) to monitor Contractor’s use of the Application Service to confirm Contractor’s compliance with the terms of this Agreement. All rights in and to the Application Service (including the Service Content) and Documentation not expressly granted to Contractor in this Agreement are expressly reserved by Veriforce and its licensors.
   5. Account Passwords, Etc. Contractor is solely responsible for approving and provisioning any and all usernames and passwords assigned to or adopted by Contractor’s Authorized Personnel in connection with access to and use of the Application Service.  Contractor is solely responsible for all activities that occur as a result of the use of such usernames and passwords.  Contractor will notify Veriforce promptly of any unauthorized use of such usernames and passwords or any other breach of security known to Contractor.
   6. Ownership of Application Service. Except for the limited licenses expressly granted to Contractor in Section 3(a) of this Agreement, nothing in this Agreement will be construed, either by implication, estoppel, or otherwise, as a grant to Contractor of any right, title, license, or interest in the Application Service (including the Service Content), the Documentation or any component of any of the foregoing (including any patent, copyright, trade secrets, or other intellectual property rights relating to or embodied in any of the foregoing).  Veriforce and/or its licensors shall retain exclusive ownership and title (including all patent, copyright, trade secret, and other intellectual property rights) in and to the Application Service (including the Service Content), the Documentation and any components of any of the foregoing.  Contractor hereby transfers and assigns to Veriforce (and will cause its personnel to transfer and assign to Veriforce) any and all right, title and interest Contractor (or its personnel) may have, now or in the future, in and to the Application Service (including the Service Content), the Documentation or any components of any of the foregoing, or any modification, improvement or derivative work of any of the foregoing (regardless of whether or not authorized by Veriforce), including all patent, copyright, trade secrets, and other intellectual property rights relating to or embodied in any of the foregoing.  Moreover, Contractor hereby grants to Veriforce a non-exclusive, worldwide, perpetual, fully transferable and sublicensable (through multiple tiers), royalty-free right and license to reproduce, display, distribute, modify, and otherwise use the Feedback without restriction. Contractor will (and will cause its personnel) to execute and deliver any documents and instruments requested by Veriforce to effect the intent and purpose of the foregoing.
4. Contractor Data.
   1. Contractor Obligations.  Contractor represents, warrants and covenants that: (i) all Contractor Data (including all statements, certifications, information and documentation provided with respect to regulatory matters) is true, accurate and complete in all respects; (ii) all Contractor Data complies with the applicable Veriforce Procedures (and, in the case of a submission of Contractor Data in response to a specific Veriforce Client request, the applicable Veriforce Client’s specified standards, requirements, policies and procedures); (iii) all Contractor Data complies with all applicable laws, rules and regulations relating to the information submitted; (iv) Contractor has obtained all necessary rights and consents in and with respect to the Contractor Data (A) to use (and to permit its Authorized Personnel to use) the Contractor Data in connection with the Services, and (B) to grant Veriforce the rights to use the Contractor Data as set forth in Section 4(b) below; and (v) the Contractor Data (including the use thereof pursuant to the rights granted under this Agreement) does not violate, misappropriate or infringe the rights (including privacy, data protection or intellectual property rights) of any Person or any applicable laws, rules or regulations.
   2. Contractor Ownership; Veriforce Rights of Use. As between the parties, Contractor shall retain all of its ownership rights in the Contractor Data.  Contractor hereby grants to Veriforce a non-exclusive, worldwide, perpetual, fully transferable and sublicensable (through multiple tiers), royalty-free right and license to reproduce, display, distribute, modify, and otherwise use the Contractor Data (including OQ Data) for the purposes of (i) providing the Services and otherwise performing under this Agreement, (ii) providing the Contractor Data to Veriforce Clients, and (iii) providing services (including contractor management, evaluation, training, compliance, auditing and other services) and results of such services (including OQ Data and other usage, evaluation, training, monitoring, analytical, audit and compliance data) to Veriforce Clients.  Contractor further agrees that Veriforce may use without restriction aggregated, non-personally identifiable information derived from the Contractor Data for purposes of developing, providing or enhancing the Application Service and Veriforce’s other offerings.  Furthermore, if Veriforce receives a judicial or other governmental order requesting disclosure of Contractor Data, then Veriforce shall be permitted to disclose the Contractor Data pursuant to such order, so long as (x) Veriforce first gives given prompt written notice to Contractor of the same (to the extent not prohibited by applicable law), and (y) Veriforce reasonably cooperates with Contractor’s efforts to prevent or limit any such disclosure.  Veriforce will maintain administrative, physical, and technical safeguards designed to protect the security and integrity of the Contractor Data from unauthorized access.  This Section 4(b) sets forth Veriforce’s sole rights and obligations with respect to the use and treatment of Contractor Data.
5. Cooperation. In connection with the performance of the Services, Contractor shall provide Veriforce’s personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Veriforce to perform the Services, and exercise its rights, under and in accordance with the terms and conditions of this Agreement.
6. Hardware and System Requirements. Contractor is solely responsible for obtaining and maintaining, at its own expense, all hardware, software and services needed to access and/or use the Application Service, including any and all servers, computers, and Internet access services.
7. Non-Solicitation of Certain Veriforce Personnel. Contractor agrees that, during the term of this Agreement and for a period of twelve (12) months thereafter, Contractor will not (directly or indirectly): (i) solicit, induce, recruit or encourage any Veriforce Restricted Personnel to leave their employment or engagement with Veriforce or to otherwise refrain from providing services to or for the benefit of Veriforce; or (ii) hire any Veriforce Restricted Personnel. The term “Veriforce Restricted Personnel” means any Person that, as of the relevant time, is currently, or was at any time during the preceding 12-month period, an employee or contractor (including individual personnel of such contractor) of Veriforce who provided services to Veriforce in support of the Services provided to Contractor under this Agreement or with whom Contractor (including any of its personnel) had contact with in connection with this Agreement (including the performance thereof).  The parties agree that, in the event Contractor hires a Veriforce Restricted Personnel in breach of this Section 7, it would be extremely difficult or impossible to accurately measure the damages sustained by Veriforce as a result of such breach, and, thus, the parties agree that, in the event of such a breach, Contractor will pay to Veriforce an amount equal to thirty percent (30%) of total compensation paid by Veriforce with respect to such Veriforce Restricted Personnel during the 12-month period preceding the date of hire of such Veriforce Restricted Personnel in breach of Section 9(ii) above (provided, however, if the Veriforce Restricted Personnel was engaged by Veriforce for less than 12 months during such period, then Person’s “total compensation” shall be computed on an annualized basis).  The parties agree that the foregoing amount is in the nature of liquidated damages (and not a penalty) and constitutes a reasonable measure of the anticipated damages to be sustained by Veriforce as a result of Contractor’s breach of this Section 7.
8. Fees and Payments.
   1. Fees. Contractor will pay to Veriforce the fees for the Services (inclusive of the Contractor DOT Bundle Fee) based on the rates and charges as set forth in the applicable Order (or, if rates and charges are not set forth in the Order, then based on Veriforce’s then-current standard published rates and charges) (the “Fees”).  For the avoidance of doubt, Contractor will be obligated to pay Fees for any Services provided to Contractor (including Application Services made accessible to Contractor at or by the direction of a Veriforce Client) in the absence of a written or electronic order for such Services.  Fees for the Services are based on the calendar year (January 1st to December 31st) and are not subject to pro-ration or reduction based on any partial year.  Veriforce reserves the right to increase or otherwise revise the rates and charges applicable to the Services for any renewal subscription/service period of the Services by providing written notice (including by email or electronic notice through its web-based services) to Contractor of such increase/revision at least forty-five (45) days prior to the commencement of such renewal subscription period (and an existing Order shall be deemed amended to include such increased/revised rates and charges).
   2. Expenses. In addition to any specific expense reimbursements provided for in an Order or otherwise agreed to in writing by Contractor, Contractor will reimburse Veriforce for all out-of-pocket travel and related expenses reasonably incurred by Veriforce in providing any Services.  Veriforce shall provide reasonable supporting documentation with respect to any requests for expense reimbursement.
   3. Invoicing; Payment Terms; Taxes.  (i) Unless otherwise provided in the applicable Order with respect to particular Service(s), (A) all Fees for  Services are invoiced annually in advance and shall be due and payable on or before January 31st of each calendar year (B) all other Fees (including any Fee increase resulting from an increase in authorized Qualified Individuals) shall be invoiced monthly in arrears and such invoices shall be due upon receipt.  For the avoidance of doubt, Contractor shall not be entitled to any refund or credit should a Qualified Individual be deleted by Contractor.  Further,  a previously designated Qualified Individual may not be substituted for another Qualified Individual during the calendar year and any added Qualified Individual(s) shall be invoiced monthly in arrears as noted above.; and (C) Notwithstanding the foregoing, Veriforce also offers Contractor a “Pay-As-You-Go” payment option where Contractor shall pay Fees for Services  monthly in arrears based on number of Qualified Individuals utilizing the Services in the prior calendar month.  Invoice will be due upon receipt.  In the event Contractor’s account is suspended for non-payment, Contractor will be charged a re-activation fee (in an amount equal to the then-current activation fee) as a condition to any account reinstatement.  Reimbursable expenses are invoiced as incurred; (ii) Contractor will pay invoiced Fees and reimbursable expenses upon receipt of the invoice and shall be deemed delinquent and deemed past due if not received within thirty (30) days of the invoice date. All Fees are non-refundable.  Failure of Contractor to pay any amounts when due under and in accordance with this Agreement shall constitute a material breach of this Agreement. Contractor will pay interest at a rate of 1.5% per month, or, if less, the maximum rate permitted by law, on any unpaid amount to Veriforce under this Agreement for such time as the outstanding balance remains past due.  All amounts payable by Contractor to Veriforce are exclusive of applicable sales, use, value-added and other taxes assessed on the provision of the products, services and/or offerings provided by Veriforce under this Agreement, and Contractor agrees to pay any applicable taxes as invoiced by Veriforce.  If Contractor asserts a tax exemption with respect to any such taxes, Contractor will furnish Veriforce with a valid tax exemption for each jurisdiction in which it is claiming an exemption.  Offerings provided by Veriforce to Contractor under this Agreement are provided and sourced to Contractor at the billing address identified in Contractor’s account information for the Application Service (or, if no address is identified, then the address reflected in the applicable Order).  Alternative addresses will need to be verified and may require an amendment to this Agreement or the applicable Order to alter sourcing for sales/use tax purposes.
9. Term and Termination.
   1. Term. The term of this Agreement will commence on the date Contractor first accepts the Subscription Terms and will continue in effect until all Subscription Periods for all Services have expired or terminated.
   2. Termination for Breach. This Agreement may be terminated by a party immediately upon notice to the other party if the other party is in material breach of this Agreement and has failed to cure such material breach within thirty (30) days after written notice of the material breach.  For the avoidance of doubt, all then-existing Subscription Periods and Orders will terminate effective upon the termination of this Agreement.
   3. Effect of Termination. Upon termination or expiration of this Agreement, (i) all unpaid Fees and other amounts payable to Veriforce under this Agreement shall become immediately due and payable, (ii) the licenses granted to Contractor under Section 3 above will terminate automatically, (iii) Contractor will immediately cease further use of the Application Service, the Service Content (including OQ Records) and the Documentation (including all copies), and (iv) Contractor will de-install and delete the Service Content (including OQ Records) and the Documentation (including all copies) from Contractor’s servers, equipment or storage devices (or, at Veriforce’s request, permit Veriforce to do so), and return to Veriforce or destroy any other copies of the Service Content (including OQ Records) and the Documentation in Contractor’s care, custody or control.  Upon Veriforce’s request, Contractor will provide Veriforce with written certification of Contractor’s compliance with the foregoing obligations.
   4. Survival. Anything to the contrary notwithstanding, termination or expiration of this Agreement will not affect any of the parties’ respective rights or obligations that (A) are vested pursuant to this Agreement as of the effective date of such termination or expiration (including obligations for payment and remedies for breach of this Agreement) or (B) arise under Sections 4, 7,10, 12, 13, 14, 16, 17 and 18 of these Subscription Terms, all of which will survive any termination or expiration of this Agreement.
   5. Suspension of Application Service. Veriforce may (without limitation of any other rights or remedies) suspend access to and use of the Application Service in the event that (i) Contractor is delinquent in payment of any amount due to Veriforce under this Agreement (and has not cured such delinquency within five (5) days following written notice thereof to Contractor), (ii) Contractor has breached any of the provisions of Section 3 of this Agreement, or (iii) in Veriforce’s reasonable good faith determination, suspension of the Application Service is necessary to avoid or mitigate harm to the security of Veriforce’s or its customers’ systems or data.  Any such suspension will not constitute a termination of this Agreement.
10. Confidentiality.
    1. Contractor agrees that any and all information (regardless of form or medium) obtained or otherwise received by Contractor from, through, by or on behalf of Veriforce and/or its affiliates that (i) is conspicuously marked as “proprietary” or “confidential” or similar designation, or (ii) if disclosed orally or visually, is identified by Veriforce as “proprietary” or “confidential” or similar designation either through an oral or written statement at the time of such disclosure or through a written statement delivered to Contractor within a reasonable period of time (not to exceed thirty (30) days) following such disclosure, or (iii) based on the nature of the information, or the manner of its disclosure, should reasonably be considered as confidential, in each case, will be deemed the confidential information of Veriforce (“Confidential Information”). Contractor agrees that the Application Service, the Service Content (including OQ Records), any portion of the OQ Data reflecting or based on the OQ Records, the Documentation and terms of this Agreement (including pricing) shall be deemed the Confidential Information of Veriforce regardless of whether or not marked/designated in accordance with the preceding sentence. Contractor will maintain the Confidential Information in confidence and, subject to the terms and conditions of this Section, will not disclose or use any Confidential Information except for the Permitted Use and only for the period this Agreement remains in effect. Contractor agrees to use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like importance, but in no event will Contractor use less than reasonable care.
    2. Except as otherwise expressly provided in this Agreement or agreed to by the Veriforce, Contractor may use the Confidential Information only to the limited extent necessary to perform its duties and/or exercise its rights subject to and in accordance with this Agreement, and for no other purpose, commercial or otherwise. Contractor may disclose the Confidential Information only to those (i) Veriforce personnel, (ii) Contractor personnel, and (iii) such other Persons approved in writing by the Veriforce, who need to know the Confidential Information in order to assist Contractor in its authorized use of the Confidential Information; provided, that such persons described in clauses (ii) and (iii) above agree to be bound by obligations of confidentiality and nonuse (without further rights of distribution) no less restrictive than those contained herein, and the Contractor will be jointly and severally liable for any such person’s breach of the foregoing obligations of confidentiality and nonuse.
    3. Disclosure or use of any Confidential Information (excluding with respect to the Application Service, the Service Content and the Documentation) will not be restricted to the extent that: (i) it is or becomes generally available to the public without any breach of this Agreement, (ii) it is known to Contractor prior to the date of disclosure by or on behalf of Veriforce hereunder; (iii) Contractor rightfully obtains it from a third party who Contractor reasonably believes has the right to transfer or disclose it without restriction; or (iv) it is developed independently by Contractor without any breach of this Agreement and without any use of the Confidential Information.
    4. Further, disclosure of any Confidential Information to any judicial or other governmental entity will not be prohibited to the extent that such disclosure is required by applicable laws, so long as (x) Contractor will first have given prompt written notice to Veriforce of the same (to the extent not prohibited by applicable law), and (y) Contractor reasonably cooperates with Veriforce’s efforts to prevent or limit any such disclosure.
    5. Contractor agrees to return to Veriforce, or, upon Veriforce’s prior written approval, to destroy (and to certify to such destruction in writing to Veriforce), all information and materials containing or embodying any Confidential Information, within thirty (30) days after demand therefor by Veriforce. For the avoidance of doubt, the provisions of this Section 12 shall not be deemed to expand the scope of the rights and licenses granted under Section 3 above (or modify any of the terms, restrictions and conditions applicable to such rights and licenses) with respect to the Application Service, the Service Content and the Documentation.
11. Compliance with Laws. Contractor agrees to comply with all applicable laws, rules and regulations relating to its performance of this Agreement. Without limiting the foregoing, Contractor agrees that that the Application Service and other technical data provided to Contractor under this Agreement may be subject to the import/export control laws of the United States and other countries, and Contractor will comply with any and all such applicable laws.
12. Disclaimers. CONTRACTOR ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. ANYTHING TO THE CONTRARY NOTWITHSTANDING, VERIFORCE (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS LICENSORS, CLIENTS AND SERVICE PROVIDERS) DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE APPLICATION SERVICE, THE SERVICES, AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CONTRACTOR UNDER THIS AGREEMENT (COLLECTIVELY, THE “OFFERINGS”), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING.  WITHOUT LIMITING THE FOREGOING, VERIFORCE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE, OR (II) WHETHER THE OPERATION OF THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE.  VERIFORCE IS NOT IN THE BUSINESS OF RENDERING LEGAL, TAX, ACCOUNTING, MEDICAL OR OTHER PROFESSIONAL ADVICE, AND NEITHER VERIFORCE NOR THE OFFERINGS SHOULD BE RELIED UPON AS SUCH.  IF SUCH ADVICE OR EXPERT ASSISTANCE IS REQUIRED BY CONTRACTOR, CONTRACTOR SHOULD SEEK THE SERVICES OF A COMPETENT LICENSED PROFESSIONAL.
13. Limitation of Liability.  IN NO EVENT SHALL VERIFORCE (OR ITS LICENSORS, CLEINTS OR SERVICE PROVIDERS) BE LIABLE TO CONTRACTOR OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER VERIFORCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ANYTHING TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT WILL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF VERIFORCE FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO VERIFORCE BY CONTRACTOR UNDER THIS AGREEMENT DURING THE 6-MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY.
14. Indemnity. Contractor will indemnify, defend and hold harmless Veriforce from and against any and all claims, demands, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and other costs of litigation) arising out of or relating to Contractor’s acts or omissions or any breach of Contractor’s representations, warranties or covenants set forth in this Agreement.
15. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA, EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (WHICH CONVENTION SHALL NOT APPLY TO THIS AGREEMENT) AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
16. Jurisdiction; Venue; Waiver of Jury. EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS FOR THE EASTERN DISTRICT OF LOUISIANA AND THE STATE DISTRICT COURTS LOCATED IN ST. TAMMANY PARISH, LOUISIANA, AND HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
17. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
18. Notices. Except to the extent otherwise expressly permitted in this Agreement and for routine electronic communications regarding the Services enabled by communications tools provided through the Application Service, any notice required or permitted under this Agreement will be in writing, and will be delivered (a) personally by hand, (b) by certified mail, postage prepaid, with return receipt requested, (c) by email, or (d) by internationally recognized express delivery service (e.g., UPS or FedEx), to the parties as follows: if to Contractor, at the address(es) indicated in Contractor’s account information for the Application Service (or, if no address is identified, then the address reflected in the applicable Order); and if to Veriforce, at 1575 Sawdust Road, Suite 600, The Woodlands, TX 77380, Attn: Legal Department.  Notice given will be deemed effective on the date delivered, if by hand, three (3) days following deposit in the U.S. Mail properly addressed, if by mail, or on the date of delivery, if by email or internationally recognized express delivery service.  Either party may change the person(s) and/or address(es) designated for notice effective ten (10) days following delivery of notice of such change(s).
19. Assignment. Contractor shall not assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in any manner, including by way of merger, exchange, consolidation or combination, or sale of fifty percent (50%) or more of its capital stock or similar ownership interests, or sale of all or substantially all of its assets, without the prior written consent of Veriforce, which consent will not be unreasonably withheld. Any attempted assignment or transfer of this Agreement by Contractor in violation of this Section 19 will be void and of no legal force or effect.  Veriforce may assign and transfer this Agreement, and any of its rights and obligations hereunder, without restriction.  Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
20. Each instance in this Agreement of the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation.” As used in this Agreement, the term “days” means calendar days, not business days, unless otherwise specified.  All headings or section divisions contained in this Agreement are for reference purposes only and will not be construed to affect the meaning or interpretation of this Agreement.
21. Force Majeure. Veriforce will not be liable for any failure or delay in performance resulting from any event beyond its reasonable control, including due to fire, flood, action or decree of civil or military authority, insurrection, act of war, vandalism, terrorism, hackers, denial of service attacks, labor disputes or shortages, material shortages, power outages, failure of internet connections, failure of suppliers, or embargo.
22. Waiver; Amendments; Changes to Subscription Terms. No amendment or waiver of any provision of this Agreement will be effective unless made in writing and signed by Veriforce. Notwithstanding anything herein to the contrary, Veriforce may amend these Subscription Terms and the Veriforce Procedures at any time by providing notice to you through the communications tools available through the Application Service or such other means of notice permitted under this Agreement; provided, however, that such amended Subscription Terms will not be effective as to any Service under an Order that we accepted prior to the date we posted the revision until the first day of the renewal subscription period for the Service that follows the effective date of the amendment. Any terms contained on any purchase order, confirmation notice or other similar document delivered, sent or transmitted by Contractor in connection with this Agreement or the Services is rejected by Veriforce and will have no legal force or effect.
23. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings or agreements (written or oral) between the parties with respect to the subject matter hereof.  For the avoidance of doubt, this Agreement supersedes and replaces any previously executed Professional Services Agreement by and between Contractor and Veriforce.  In the event of a conflict between or among these Subscription Terms, an Order, and any documents incorporated by reference into these Subscription Terms or an Order, the following order of precedence will apply: the Subscription Terms; the Order; and any documents incorporated by reference into these Subscription Terms or the Order.  An Order may be executed in multiple counterparts.  Facsimile and scanned signatures are effective in all respects.