These iSystems Pass-Through Terms and Conditions (these “Conditions”) are hereby made a part of the Master Agreement between Service Bureau and Customer (each as defined in the table above). In addition to the terms and conditions set forth in the Master Agreement, these Conditions govern Customer’s use of any of iSystems’ applications and their related platforms and services made available to Customer or its respective end-users under the Master Agreement (including any related websites accessible via web browser and all related documentation, collectively the “Applications”). To the extent these Conditions conflict with any terms or conditions set forth in the Master Agreement, these Conditions shall control. The Applications are licensed, not sold, to Service Bureau and Customer, as applicable.
1. Restrictions. Customer shall not, and shall not permit any third party to:
(a) copy any of the Applications;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of any of the Applications;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of any of the Applications or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any of the Applications, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of the Applications or any features or functionality of any of the Applications, to any third party for any reason, including by making any of the Applications available on a network where it is capable of being accessed by more than one device at any time;
(f) access the Applications in order to build any commercially available product or service;
(g) copy any features, functions, integrations, interfaces or graphics of the Applications;
(h) use the Applications in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of Customer or any third-party that contains code, including without limitation, open source code and freeware, that would directly or indirectly: (A) create, or purport to create obligations with respect to the use or distribution of any software that incorporates, is combined with, or derived from the Applications; (B) grant, purport to grant, or require Customer or iSystems to grant to any third party any rights or immunities under iSystems’ intellectual property rights in any software that incorporates, is combined with, or is derived from the Applications; and/or (C) require as a condition of its use, modification, and/or distribution, that any software incorporated into, derived from, or distributed with the Applications must be disclosed or distributed in any form;
(i) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting any of the Applications; or
(j) violate iSystems’ Acceptable Use Policy set forth at the bottom of these Conditions.
2. Reservation of Rights. Customer acknowledges and agrees that the Applications are provided under license, and not sold, to Customer and Service Bureau as applicable. Customer does not acquire any ownership interest in any of the Applications under these Conditions or the Master Agreement, or any other rights thereto other than to use the applicable Applications in accordance with the license granted, and subject to all terms, conditions and restrictions, under the Master Agreement. iSystems, its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Applications, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to Customer and/or Service Bureau in these Conditions and/or the Master Agreement.
3. Collection and Use of Customer Information; Ownership of Data.
(a) Collection and Use of Information. Service Bureau and Customer acknowledge that iSystems may use automatic means (including, for example, cookies and web beacons) to collect information about Service Bureau’s and/or Customer’s use of the Applications. All information iSystems collects through or in connection with the Applications is subject to iSystems’ Privacy Notice located at https://www.associatedhcm.com/privacy-pass-through-notice/. Service Bureau and Customer hereby consent to all actions taken by iSystems with respect to such information in compliance with the Privacy Notice.
(b) License to Data and Input. Customer hereby grants iSystems a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and fully paid-up, sub-licensable and non-transferable right and license to access, use and display the data Customer inputs into the Applications for the purposes of providing the Applications to Service Bureau and Customer and for aggregating such data with other data in order to analyze and use such data for purposes related to the Applications. Customer hereby grants to iSystems a royalty-free and fully-paid up, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Applications any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its employees and any authorized users relating to the operation or functionality of the Applications (“Input”). iSystems shall have no obligation to make such Input available to Service Bureau or Customer. Customer shall have no obligation to provide such Input.
(c) Aggregated Data. iSystems owns the aggregated and statistical data derived from the operation of Applications, including, without limitation, the number of records in the Applications, the number and types of transactions, configurations, and reports processed in the Applications and the performance results for the Applications (the “Aggregated Data”). Nothing herein shall be construed as prohibiting iSystems from utilizing the Aggregated Data for purposes of operating iSystems’ business, provided that iSystems’ use of Aggregated Data will not reveal the identity, whether directly or indirectly, of Customer, or any individual or specific data entered by any individual into the Applications. In no event does the Aggregated Data include any personally identifiable information.
4. Disclaimer of Warranties. THE APPLICATIONS ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, iSYSTEMS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATIONS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, iSYSTEMS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. IF SERVICE BUREAU OFFER ANY WARRANTIES, INDEMNITIES OR OTHER CONTRACTUAL COMMITMENTS TO CUSTOMER RELATING TO THE APPLICATIONS, SERVICE BUREAU IS SOLELY RESPONSIBLE FOR ALL SUCH WARRANTIES, INDEMNITIES OR OTHER CONTRACTUAL COMMITMENTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
5. Confidentiality. Customer shall not disclose or use any Confidential Information of iSystems except as reasonably necessary to perform its obligations or exercise its rights pursuant to these Conditions and the Master Agreement, except with iSystems’ prior written permission. Customer agrees to protect the Confidential Information of iSystems in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. A disclosure by Customer of Confidential Information of iSystems to the extent required by Law shall not be considered a breach of this Agreement, provided Customer provides iSystems with prior written notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at iSystems’ cost, if iSystems wishes to contest the disclosure. If Customer discloses or uses (or threatens to disclose or use) any Confidential Information of iSystems in breach of the confidentiality protections hereunder, iSystems shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a Customer prior to its disclosure by iSystems without breach of any obligation owed to iSystems; (iii) was independently developed by Customer without breach of any obligation owed to iSystems or Service Bureau; or (iv) is received from a third party without breach of any obligation owed to iSystems or Service Bureau.
6. Limitation of Liability. IN NO EVENT WILL iSYSTEMS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE APPLICATIONS, DAMAGE TO ANY END USER’S COMPUTER OR DEVICE, INTERRUPTIONS OR DELAYS IN SERVICE, OR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR iSYSTEMS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
BY ACCESSING ANY OF THE APPLICATIONS OR WEBSITES, CUSTOMER UNDERSTANDS THAT IT MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS, AND HEREBY EXPRESSLY WAIVES, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
CUSTOMER AGREES THAT IN THE EVENT IT INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF iSYSTEMS’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO CUSTOMER ARE NEITHER IRREPARABLE NOR SUFFICIENT TO ENTITLE CUSTOMER TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY APPLICATIONS, WEBSITES, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY iSYSTEMS, AND THAT CUSTOMER WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY APPLICATIONS, WEBSITES, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY iSYSTEMS.
7. Indemnification. Customer agrees to indemnify, defend and hold harmless iSystems and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Customer’s use or misuse of any of the Applications or Customer’s breach of this Agreement or the Acceptable Use Policy.
8. Force Majeure. Without limiting the generality of Sections 4 and 6 above, iSystems shall not be liable for any failure or delay in performance for causes beyond iSystems’ reasonable control and occurring without iSystems’ fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving iSystems employees), computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility.
9. Third-Party Beneficiary. Service Bureau and Customer hereby designate iSystems (and its successors and assigns) as a third-party beneficiary of these Conditions, having the right to enforce the terms and conditions herein against Customer.
10. Survival. Notwithstanding anything to the contrary in the Master Agreement, these Conditions shall survive the termination or expiration of the Master Agreement.
11. Assignment. Notwithstanding anything to the contrary in the Master Agreement, Customer may not assign or delegate its rights or obligations under the Master Agreement without the prior written consent of iSystems.
12. Severability. If any provision of these Conditions or the Acceptable Use Policy is illegal or unenforceable under applicable law, the remainder of the provisions will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Conditions and the Acceptable Use Policy will continue in full force and effect.
iSYSTEMS ACCEPTABLE USE POLICY
In addition to Customer’s compliance with the Conditions, Customer must comply with the following rules in order to access or use any of the Applications. Failure to abide by the following rules will result in termination of Customer’s license to use any of the Applications.
1. All users must be at least 18 years old to use any of the Applications.
2. Customer must not collect, use, or solicit any passwords or other account credentials from other users of any of the Applications.
4. Customer must not undertake any action that would disrupt or interfere with any of the Applications, or other users’ use and enjoyment of any of the Applications (including the servers or networks to which any of the Applications are connected), including transmitting any malicious code, malware, viruses, worms, Trojan horses, or any type of content or code that is destructive or disruptive in any way.
5. Customer must not use any type of automated bot, scraper, crawler, spider, scanner, or other device that harvests information from any of the Applications.
6. Customer must not take any action that would suggest or imply that any of the Applications are associated with Customer, or any other website or entity.
7. Customer’s use of any of the Applications must comply with all applicable laws, and Customer is solely responsible for such compliance. This includes, with respect to any data Customer inputs into any of the Applications, compliance with copyright law. Customer may not use any of the Applications for any illegal or unlawful purposes.
8. Customer is solely responsible for all activity that occurs using Customer’s credentials (i.e., username and password). Use of Customer’s credentials by anyone else is prohibited (except in the case of employees authorized to use credentials of a business), however, someone else’s use of Customer’s credentials does not relieve Customer of its responsibility. Customer must keep its credentials secure.
9. Customer’s credentials do not actually belong to Customer; they are licensed to Customer by iSystems. Therefore, Customer may not transfer (e.g., selling, licensing, or assigning) its credentials to any other person.
10. Customer is solely responsible for the data it inputs into any of the Applications, and Customer represents to iSystems that all information Customer provides is true and accurate. Customer also represents that it has all necessary rights and consents to input such data and provide such information.